COURT OF APPEAL FOR ONTARIO
McMURTRY C.J.O., DOHERTY and ROSENBERG JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Respondent
- and -
WILLIAM BATTE
Appellant
Keith E. Wright, for the appellant
Robert Kelly, for the respondent
Heard: November 25 and 26, 1999
On appeal from his conviction by Mr. Justice Dunn, sitting with a
jury, on August 1, 1997 and from the sentence imposed on November
7, 1997
1This is the second of two appeals by William Batte from his
convictions for various sexual offences at two separate trials.
The two trials resulted from a severance order. This appeal
concerns the appellant’s conviction for indecent assault by a
court composed of Dunn J. and a jury at Brampton on August 1,
- This offence was alleged to have occurred approximately
twenty years earlier between 1977 and 1979. The charge was laid
on October 15, 1993 but did not finally come to trial until July
28, 1997, almost four years later. The trial judge dismissed an
application to stay the proceedings for violation of the
appellant’s right to a trial within a reasonable time as
guaranteed by s. 11(b) of the Canadian Charter of Rights and
Freedoms. In my view, he erred and accordingly I would allow the
appeal, order a new trial and stay the proceedings pursuant to s.
24(1) of the Charter.
2Notwithstanding my conclusion on the s. 11(b) issue, I
intend to deal with two of the other grounds of appeal; the
validity of the indictment and the trial judge’s ruling on the
Corbett application. I will deal with the former because, if the
appellant is correct, the proceedings were a nullity. I will
deal with the Corbett application because it raises an issue that
recurs with some frequency, namely the prosecution’s attempt to
justify cross-examination on a criminal record because of an
attack on the character of the Crown witnesses.
THE FACTS
The facts of the offence
3The complainant N. and her parents were neighbours of the
appellant. The appellant operated a farm on which he kept
horses. In August 1977, when the complainant was just 12 years
of age, she and her parents went to a corn roast at the
appellant’s farm. During the gathering, the complainant’s parents
introduced her to the appellant. By the end of the evening, they
had all agreed that the complainant would clean the appellant's
house and he would teach her about horses. The complainant was
infatuated with horses.
4According to the complainant, the sexual assaults began on
the very first day that she attended at the farm to start her new
job. When she had finished cleaning, she went into the kitchen.
The appellant followed her and crowded her against the wall. He
kissed her neck and put his hands up her top and felt her
breasts, which had not yet begun to develop. He kept telling her
how pretty she was, how much fun they were going to have with the
horses, and how much she would learn. This went on for about ten
minutes. The appellant told her that what they were doing was
“okay” but that she should not tell anyone.
5A few days later, the complainant returned. She thought, or
at least hoped, that the appellant would not touch her again.
Also, there was "this big carrot being dangled in front of
[her]," namely, the horses. During the next two years, she went
to the farm once or twice a week, usually on weekends but
sometimes on weekday evenings. According to the complainant, the
sexual touching occurred virtually every time she was at the
farm, so much so that at one point she thought she was his
girlfriend.
6The sexual assaults usually took place in the hallway. The
appellant would approach the complainant while she was cleaning.
He would back her up against the wall and rub his penis against
her groin. Sometimes, he used his knee to lift her off the
ground because she was so much shorter than him. Her legs would
dangle in the air as he squeezed and rubbed her buttocks. He
would kiss her and put his hands all over her. He touched her
face and neck, her shoulders and chest, and her groin area, both
over and under her clothes. After 10 or 15 minutes he would
ejaculate. Then he would leave and have a shower. The
complainant did not understand ejaculation. She thought he had
gone to the bathroom.
7The appellant usually walked around the house wearing only
boxer shorts. At first, his penis would be inside his shorts as
he rubbed against the complainant in the hallway but later he
started exposing his penis to her. He would always ask her if he
could put his penis inside her and if she would touch it. The
appellant would also take the complainant’s hand and have her rub
his exposed penis. The complainant testified that she always
asked the appellant not to “do this” but he would reassure her
and tell her it was okay.
8Sometimes, the appellant would sexually assault the
complainant twice in one visit. When they were in the barn, he
would lie her down on a bed of straw and rub against her and do
the same things he did in the hallway.
9The last incident occurred in the fall of 1979, when the
complainant was 14 years old. After arriving at the farm, she
went to the appellant's bedroom to let him know she was there.
When she opened the door, he was standing there naked. He pushed
her onto the bed and began kissing and rubbing her. He told her
how pretty she was and how much he liked her, but he was a lot
more forceful than usual. Somehow the complainant’s shorts came
off and the appellant was very insistent about putting his penis
inside her. He told her he would not get her pregnant, but the
complainant did not understand what that meant. The assault
lasted 20 to 25 minutes. During this time, the complainant kept
saying “no”. Later, as she was leaving, the appellant was
screaming at her from the window, saying that if she told anyone
he would get her and that no one would believe her anyway. In
the course of this incident, the complainant urinated in her
panties. When she returned home, she hid the panties in her
cupboard.
10The complainant went straight home and briefly “tested the
waters” in terms of telling her parents about the abuse. Her
step-father's reaction was one of disbelief that she could say
such things about one of his friends. This confirmed for the
complainant that the appellant was right when he said no one
would believe her, so she decided not to say anything more.
However, the complainant never went back to the appellant’s farm.
11These allegations came to light when the police called the
complainant in September 1993 and asked her to give a statement.
12The complainant’s mother, Mrs. N., testified for the Crown.
She confirmed that the complainant worked for the appellant for a
period of time. She testified that at one point the complainant
told her that she wanted to quit working for the appellant. Mrs.
N. took this as a sign that the complainant was lazy and
rebellious and told her that she must follow through with her
commitment. She also testified that around 1979, the complainant
underwent a very pronounced change in personality. She became
unapproachable, dressed differently and totally lost interest in
horses. Around this time, Mrs. N. found a pair of soiled panties
hidden in the complainant’s closet. The complainant was still
working for the appellant at this time.
13Mrs. N. also testified about several trips to the Bahamas
that she and her daughter took with the appellant and some other
persons from the neighbourhood. She denied a suggestion from
defence counsel that on the 1978 trip she went to the appellant’s
room and tried to proposition him.
14The appellant testified and gave extensive evidence about
his farm, his contact with the complainant and the trips to the
Bahamas. In short, he denied any sexual assault of the
complainant and denied spending very much time at all with her.
He testified that after the second weekend it became clear that
the complainant was not doing a good job and did not want to
clean for him. They agreed that she could continue to come
around and look at the horses and the appellant would not tell
her mother. He also testified that on the 1978 trip to the
Bahamas the complainant’s mother came to his room around
midnight, jumped into his bed and propositioned him. The
appellant testified that he repulsed her advances and eventually
was able to make her leave. She was very angry over this
incident. There was no further social contact with the N. family
after this trip.
The procedural history
15The procedural history in this appeal is interwoven with the
history of the proceedings in the other appeal. On May 21, 1993,
two informations were laid charging the appellant with various
sexual offences involving the two D. sisters. The appellant’s
conviction on these charges forms the basis of the companion
appeal. A preliminary hearing was scheduled on those charges for
October 18, 1993.
16On October 15, 1993, an information was sworn charging the
appellant with common assault and gross indecency over the period
of August and September 1977 in relation to the complainant N.
This information was before the court on October 18 but was
adjourned to November 24, 1993 for a preliminary inquiry. The
preliminary inquiry on the charges involving the D. sisters was
completed on October 19, 1993 and the appellant was ordered to
stand trial. On November 24, 1993, the appellant was ordered to
stand trial on the two counts involving N. (The appellant raises
an issue with respect to the validity of that order. I will deal
with that issue below.)
17On November 29, 1993, the Crown Attorney presented a nine-
count indictment containing the charges from both preliminary
inquiries. At that time, a pre-trial was scheduled for December
17, 1993. Following the pre-trial, the appellant was remanded to
the assignment court on March 28, 1994 to set a date for trial.
On that date, a further pre-trial was scheduled for June 10,
1994, and a target date was set for October 17, 1994.
18On October 17, 1994, the Crown Attorney filed a new
indictment. The new indictment expanded the time frame of the
charges in relation to N. to cover a two-year period from August
1977 to September 1979. The charge of assault had now been
changed to indecent assault. Over a three-day period in October
1994, MacKenzie J. heard and then dismissed motions for
disclosure of third-party medical and counselling records in
relation to all three complainants. On November 25, 1994,
MacKenzie J. ruled that the charges involving N. were not
admissible on the trial involving the D. sisters and he granted
the appellant’s application to sever the charges involving N.
The Crown elected to proceed first with the counts involving the
D. sisters.
19The trial in relation to the D. sisters commenced on
December 12, 1994 before MacKenzie J. and a jury but resulted in
a mistrial on December 15, 1994. Fourteen months had now elapsed
since the appellant was charged with the counts involving N.
20On March 24, 1995, the Crown Attorney prepared another
indictment relating only to the N. counts. On April 3, 1995, the
second trial involving the D. sisters commenced in Orangeville
before O’Connor J. and a jury. The appellant was convicted on
April 12, 1995 and sentenced on June 28, 1995 to a total of four
years on two counts of rape and one count of indecent assault.
The indictment containing the N. counts was adjourned to the
October 10, 1995 assignment court to set a date for trial during
the October 16 sittings in Orangeville. The appellant also
indicated that he would have new counsel for the N. trial.
Twenty and one-half months had now elapsed.
21The appellant’s trial and conviction had attracted
considerable publicity in the Orangeville area and the appellant
applied for a change of venue. On October 10, 1995, Langdon J.
changed the venue of the trial to Brampton. There were several
venues other than Brampton that might have been chosen. Counsel
for the appellant had indicated a preference for Brampton. The
case was traversed to October 20, 1995 to be spoken to in
Brampton. On October 20, 1995, a trial date was set for April
15, 1996. The appellant attended throughout the week of April
15, 1996 but the case could not be reached due to lack of court
availability. The Crown adduced no evidence as to why the
appellant’s case was not given any priority notwithstanding the
fact that by then two and one-half years had now elapsed since
the charges involving N. were laid. The case was adjourned to
September 23, 1996. Once again, the appellant attended during
the week of September 23rd but the case was not reached. There
was no explanation for why the appellant’s case was not given any
priority. Slightly less than three years had now elapsed.
22The case was adjourned to February 10, 1997. When court
time became available, the case was moved up to December 16, 1996
and the trial commenced before Langdon J. The trial ended in a
mistrial on December 17th because of misconduct by one of the
jurors. The case was adjourned to January 24, 1997 to set a new
trial date. On January 24, 1997, the court had dates available
in April or June. The appellant’s counsel was only available in
May. In the end, the court set the trial date for July 28, 1997.
Counsel agreed to that date.
23The trial commenced on July 28, 1997 before Dunn J. At the
opening of the trial the appellant applied for a stay of
proceedings because of violation of his right to trial within a
reasonable time as guaranteed by s. 11(b) of the Charter of
Rights. Forty-five and one-half months had now elapsed.
24The appellant was on bail throughout the entire period
except for a very brief period before he was granted bail pending
appeal following the convictions in relation to the D. sisters.
On the application under s. 11(b) of the Charter, the appellant
filed an affidavit attesting to the prejudice from the delay. At
the time, the appellant was 62 years of age. He had no criminal
record, except for the convictions in relation to the D. sisters.
He stated that he had experienced significant concern, stress and
anxiety and had been unable to work during the four-year period.
The defence of the two sets of charges had drained him of his
financial resources and he was now living on his brother’s farm
and working for his brother in exchange for room and board. He
had sold his home and used his retirement savings for legal fees
and was now on legal aid. The appellant also stated that because
of the delay at least two potential defence witnesses had
expressed concern about losing more time from work and had become
reluctant to testify. Dunn J. dismissed the application and the
appellant was found guilty by the jury on August 1, 1997. On
November 7, 1997, the appellant was sentenced to 21 months'
imprisonment concurrent to the sentences involving the D.
sisters. The appellant was released on bail pending appeal soon
after the sentencing.
ANALYSIS
25As indicated, I would allow the appeal in relation to the
ground of appeal concerning s. 11(b) of the Charter. However,
before dealing with that ground of appeal I will deal with the
two other grounds concerning the validity of the order to stand
trial and the indictment and the trial judge’s ruling on the
Corbett application.
The validity of the order to stand trial and the indictment
26The original information that was laid in October 1993
charged the appellant with common assault and gross indecency
during August and September 1977. In 1977, common assault was a
summary conviction offence. However, the Crown purported to
elect to proceed by way of indictment on that charge. A
preliminary inquiry was held on that charge and the former
indictable offence of gross indecency. No one noticed the error
at the time and no objection was taken to the proceedings. The
appellant was ordered to stand trial on the two charges. At some
point, the Crown Attorney may have noticed the problem. In any
event, the indictment upon which the appellant was ultimately
tried charged him with the offences of indecent assault and gross
indecency. Both of these offences were indictable in 1977. The
appellant raised no objection to the order to stand trial nor the
indictment at any time prior to this appeal.
27On appeal, Mr. Wright, who was not counsel at trial,
submitted that the proceedings were invalid. He argued that the
preliminary inquiry was a nullity and that accordingly the
indictment was a nullity.
28I would not give effect to this ground of appeal. The
indictment was valid on its face. It charged two indictable
offences known to law and complied in all respects with the
provisions of the Criminal Code governing the formal and
substantive requirements of an indictment. Any defect in the
procedure at the preliminary inquiry had to be raised prior to
trial either by an application to quash the preliminary inquiry
or at least by motion to quash the indictment. The appellant did
neither.
29In my view, the decision of the Supreme Court of Canada in
R. v. Chabot, 1980 CanLII 54 (SCC), [1980] 2 S.C.R. 985 is a complete answer to this
ground of appeal as it applies to the validity of the preliminary
inquiry. In Chabot, the accused had been charged with second
degree murder. Following the preliminary inquiry, the presiding
judge ordered the accused to stand trial on a charge of first
degree murder. On the same day, Crown counsel prepared an
indictment charging first degree murder. The accused immediately
challenged the committal for trial by way of an application for
habeas corpus with certiorari in aid. The application for habeas
corpus was dismissed by the superior court but the accused
successfully appealed to this court which set aside the committal
for trial and remitted the case to the provincial court to commit
for trial on second degree murder.
30On the Crown appeal to the Supreme Court, the court
considered two issues. First, whether the Criminal Code as it
then stood permitted a preliminary inquiry judge to commit for
trial on a more serious charge. The Court held that it did not.
The Criminal Code has since been amended, see s. 548(1). Second,
whether the existence of an indictment bars an attack on the
preliminary inquiry and the validity of the committal to stand
trial. Dickson J., speaking for the court, held at p. 990 that
once the indictment has been presented (or preferred), the
validity of the preliminary inquiry and the committal for trial
could no longer be attacked. At that point the indictment
provides a “fresh starting point”:
The indictment in effect becomes the foundation
upon which the further proceedings are built. After
presentment of the indictment, the accused is free
to move to quash the indictment by motion made in
the trial Court but he can no longer attack the
regularity of the committal for trial by certiorari.
[Emphasis added.]
31Dickson J. held that the mere filing of an indictment with
the court does not bar an attack on the validity of the
preliminary inquiry. Rather, an indictment is not presented for
the purpose of this rule “until it is lodged with the trial Court
at the opening of the accused's trial, with a Court ready to
proceed with the trial”.
32Accordingly, the appellant in this case was foreclosed from
attacking the validity of the order to stand trial once he was
before the judge of the General Division at the opening of his
trial. The validity of the preliminary inquiry cannot be raised
for the first time on appeal.
33In the alternative, the appellant argues that the
indictment, or at least the indecent assault count, is invalid
because he was never ordered to stand trial on indecent assault.
Section 574 of the Criminal Code provides that the prosecutor may
prefer an indictment containing any charge on which the accused
was ordered to stand trial or “any charge founded on the facts
disclosed by the evidence taken on the preliminary inquiry”. If
the appellant sought to challenge the validity of the indictment
because it was not founded on the evidence at the preliminary
inquiry or because s. 574 itself is invalid,1 he had to comply
with s. 601(1) of the Criminal Code. That section provides that
an objection to an indictment or a count in an indictment for a
defect apparent on the face “shall be taken by motion to quash
the indictment or count before the accused has pleaded, and
thereafter only by leave of the court before which the
proceedings take place”. Since the appellant did not move to
quash the indictment, I would not now permit him to challenge the
validity of the indictment or the count of indecent assault. It
may be that where the accused has been misled or prejudiced by a
defect in an indictment, the court of appeal will consider its
validity for the first time on appeal. However, that is not this
case. There was no suggestion that the evidence adduced at the
preliminary inquiry did not disclose the offence of indecent
assault. The appellant was always aware of the nature of the
allegations against him and he was not misled or prejudiced.
The Corbett application
34Prior to testifying, the appellant brought an application in
accordance with R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670 to prevent
Crown counsel from cross-examining him on his prior criminal
record pursuant to s. 12 of the Canada Evidence Act, R.S.C. 1985,
c. C-5.
35The appellant’s only criminal record resulted from the
convictions before O’Connor J. and a jury for the sexual offences
involving the D. sisters. Those convictions were based upon
conduct alleged to have occurred in the spring and summer of
1979, just a few months before the complainant stopped going to
the appellant’s farm. The charges relating to all three
complainants had originally been charged in the same indictment.
However, MacKenzie J. held that evidence of the allegations
involving N. were not admissible in relation to the charges
involving the other complainants. MacKenzie J. had therefore
ordered that the charges involving N. be severed from the other
charges.
36Following his conviction before O’Connor J. and a jury, the
appellant had been granted a change of venue because of the risk
of prejudice to a fair trial of the N. charges from the publicity
surrounding the convictions for offences on the D. sisters.
Nevertheless, Crown counsel sought to cross-examine the appellant
on these convictions.
37In his submissions before the trial judge, Crown counsel,
not Mr. Kelly, sought to justify the cross-examination on the
basis that defence counsel’s cross-examination of the Crown
witnesses “was of such a nature that there is a very considerable
danger of serious imbalance” if the Crown could not cross-examine
the appellant on his record. Crown counsel referred in
particular to defence counsel’s cross-examination of the
complainant’s mother on the Bahamas incident.
38Crown counsel also referred to defence counsel's suggestion
in cross-examination of Mrs. N. that she was “throwing in now,
for the first time” at this trial that the complainant’s manner
of dress had changed when she started working for the appellant.
The change in dress was raised during examination in chief. It
was apparent that Mrs. N. was suggesting that the complainant’s
behaviour changed while she was working for the appellant and
that this manifested itself in, among other ways, her manner of
clothing. It would seem that the prosecution was attempting to
link this change in personality with the alleged sexual abuse.
It also seems clear that the complainant’s mother had not
mentioned the change in manner of dress at the preliminary
inquiry or the first abortive trial.
39In his submissions on the Corbett application, Crown counsel
also referred to the cross-examination of the complainant in
which defence counsel had suggested that the allegations of
sexual abuse were “nothing but fiction” and “nothing but
nonsense”. He noted that in one question, defence counsel framed
the question as “when you were supposedly being assaulted”.
40Crown counsel submitted at trial that this cross-examination
of the complainant and her mother amounted to an attack on their
character. In the course of submissions before the trial judge
on the Corbett application, Crown counsel suggested that any
unfair prejudice to the appellant could be mitigated by referring
to the prior convictions as convictions for assaults that
occurred some years ago. The trial judge adopted this suggestion
and allowed the examination on the record. The trial judge did
not give formal reasons for his ruling. The reasons can be
gleaned, however, from the dialogue between the trial judge and
counsel and in particular his statement to defence counsel that
the cross-examination had developed into an attack not only on
credibility, but also on the character of the complainant and her
mother. According to the trial judge, it was necessary to
introduce the appellant’s record “to be fair to all the parties”.
Accordingly, defence counsel led evidence from the appellant in
accordance with the trial judge’s ruling.
41Two other incidents occurred during the trial that bear on
this issue. Crown counsel cross-examined the appellant’s brother,
a defence witness, as to whether he was aware of the appellant’s
record for “assaultive behaviour several years ago”. Defence
counsel immediately objected and the jury was asked to retire.
In the jury’s absence, defence counsel raised his concern that
the jury would learn that the convictions were for sexual
offences. A discussion took place with the witness and when the
jury returned Crown counsel asked one further leading question
about the conviction for “three counts of assault” and then
dropped the matter. However, in the course of the deliberations
the jury asked, “What were the charges that led to the three
previous convictions and when?” The trial judge answered the
question appropriately, reminding the jury that they were only to
consider the evidence led at the trial and that evidence about
the assault convictions was admitted for a limited purpose to
assess credibility and not to show a propensity to commit further
crimes.
42In R. v. P. (G.F.) (1994), 1994 CanLII 8780 (ON CA), 18 O.R. (3d) 1 at 5, this court
held that the decision to be made on a Corbett application is a
matter of discretion and “an appellate court should not interfere
and substitute its own view of how the trial judge’s discretion
ought to have been exercised in the absence of clear error in the
exercise of that discretion”. In my view, the trial judge did
make a clear error in the exercise of his discretion by holding
that evidence of the appellant’s record was required because
cross-examination of the complainant and her mother had included
an attack on their character and not just their credibility.
43In my view, the trial judge erred in permitting cross-
examination of the appellant on the prior record, even in the
sanitized version. As indicated, Crown counsel at trial sought
to justify the cross-examination on the basis that an imbalance
would have been created. This was an attempt to bring the
appellant’s case within the holding in Corbett.
44In Corbett, Dickson C.J.C. writing for the majority of the
Supreme Court held that the accused, who was charged with murder,
could be cross-examined on his prior record, including a prior
conviction for murder. The principal Crown witnesses in that
case had lengthy criminal records and the attack on their
credibility was largely based upon their character as disclosed
by their criminal records. Dickson C.J.C. at p. 698 explained
why he disagreed with La Forest J., who would have excluded the
record. He referred to the imbalance that would have been
created by leaving the jury with the impression that while the
Crown witnesses were hardened criminals, Corbett had an
unblemished record:
In his reasons, La Forest J. provides a useful
catalogue of factors to which reference may be
had in determining how this discretion is to be
exercised. In my view, however, my colleague
gives too little weight to the fact that in this
case, the accused appellant made a deliberate
attack on the credibility of Crown witnesses,
largely based upon their prior records. The issue
for the jury was solely that of credibility. As
La Forest J. observes, this evidence would not
have been excluded under the more comprehensive
scheme of the governing English statute. In my
view, excluding evidence of Corbett's prior
criminal record would have created a serious
imbalance. Had Corbett's record been excluded, the
jury, as I have earlier indicated, would have been
left with the entirely mistaken impression that
while the Crown witnesses were hardened criminals,
Corbett had an unblemished record. The problem
could not be solved, in my view, by admitting into
evidence all the convictions, save that for murder.
Apart from the murder conviction in 1971, the
earlier convictions dated back over 30 years to
- I am not at all persuaded that the imbalance
between the Crown and accused would have been avoided
by admitting only evidence of convictions for
offences committed in the accused's youth. It is my
view, therefore, that the jury would have been
misled rather than aided by the exclusion of the
evidence, and that in the circumstances it cannot be
said that admission of the evidence was unfairly
prejudicial. [Emphasis added.]
45The facts in Corbett are far removed from the facts in this
case. The attack on credibility of the Crown witnesses in
Corbett was on the basis of their character especially as
disclosed in the criminal record. These were matters not
directly connected with the offence itself.
46There is a distinction between an attack on the character of
Crown witnesses initiated by the defence and attempts by the
defence to meet the prosecution's evidence that incidentally
impacts on character. The attack on the Crown witnesses in the
appellant’s case was directed at the lack of credit of their
accounts of the events, not their character and certainly not
their character for criminal conduct. The cross-examination of
the complainant’s mother on the Bahamas incident, for example,
was not a gratuitous attack on her virtue. Crown counsel led
evidence that the appellant and the N. family went on trips to
the Bahamas, but after the 1979 trip there was no further
socialization with the appellant. Crown counsel also led
evidence about the finding of the soiled panties, which the
complainant linked to the last time she went to the appellant’s
farm, and the abrupt change in the complainant’s personality at
the same time. The prosecution was clearly attempting to bolster
its case by linking all of these changes to the abuse of the
complainant. It was open to the defence to show that there was
an alternative explanation for at least some of this change in
the relationship between the appellant and the N. family, namely
the alleged incident in 1978 between Mrs. N and the appellant in
the Bahamas. The same may be said of the attack on Mrs. N.’s
testimony because she had not mentioned the change in the
complainant’s manner of dress. The manner of dress was raised in
direct examination and it was proper for the appellant to attack
the accuracy of Mrs. N’s recollection by showing that she had
never mentioned this matter before. This was not an attack on
Mrs. N.’s character.
47Similarly, a suggestion that the complainant’s evidence of
the abuse was untrue was not an attack on her evidence because of
bad character. The appellant was entitled to deny his guilt and
repudiate the allegations made by the complainant. Questioning
the complainant’s account and suggesting that the account was not
true did not create the potential for the kind of imbalance
discussed in Corbett.
48In Corbett, while Dickson C.J.C. disagreed with La Forest J.
as to whether the record should be admitted, he accepted the
factors that should be taken into account in the exercise of the
judge’s discretion. Among the most important factors enumerated
by La Forest J. at pp. 740-44 are: the nature of the previous
conviction, the remoteness or nearness of the conviction to the
present charge, whether it is a conviction for a similar offence
(in which case there is a greater risk of prejudice to a fair
trial), and the nature of the defence attack on the Crown
witnesses. I have already dealt with this last factor. The
other factors all weighed against admitting the prior
convictions.
49As to remoteness or nearness of the convictions, while the
convictions were very recent, they related to incidents that
occurred over fifteen years earlier. In cases such as this,
where the conviction, although recent, relates to events many
years earlier, the conviction may have little relevance to
credibility. At p. 742 of Corbett, La Forest J. discussed the
remoteness factor in terms that indicate it is the time from the
criminal conduct and not the date of the actual conviction that
is of most importance:
The remoteness or nearness of the previous
conviction is also, as the court in Gordon, supra,
stated, “a factor of no small importance” (p. 940).
Combined with this factor are the circumstances of
the accused. As the court in that case put it, at
p. 940: “Even [a conviction] involving fraud or
stealing, for example, if it occurred long before
and has been followed by a legally blameless life,
should generally be excluded on the ground of
remoteness.” [Emphasis added.]
50As to the nature of the previous convictions, these were not
convictions for dishonesty. They were convictions for similar
offences for which the appellant was on trial. Moreover, two
judges had earlier made rulings designed to ensure that the
appellant’s right to a fair trial was not prejudiced by the other
proceedings. MacKenzie J. had ordered severance of the counts
and Langdon J. had ordered a change of venue. Admission of the
appellant’s record resulting from those proceedings risked
undoing the salutary effect of those rulings. That this was a
real risk was demonstrated by the Crown counsel’s unnecessary
questioning of the appellant’s brother about the record and the
jury’s question about the record. In my view, it would be
unusual circumstances that would require cross-examination of an
accused on a conviction resulting from a previously severed trial
and the trial judge erred in permitting the cross-examination in
this case. Having regard to my conclusion on the s. 11(b) issue,
it is not necessary to decide whether this error would require a
new trial.
51One final comment on this issue. Mr. Wright submitted that
it was improper to sanitize the record as it meant that the
appellant and his brother were forced to give untrue testimony.
I do not agree. There is ample authority for a trial judge to
edit a criminal record to limit its prejudicial effect. Usually,
as in R. v. P. (G.F.), or R. v. T. (D.B.) (1994), 89 C.C.C. (3d)
466 (Ont. C.A.), this takes the form of editing out certain
convictions. However, I see nothing wrong with convictions for
sexual offences as committed by this appellant on the D. sisters
being described as assaults to attempt to minimize some of the
prejudicial effect. Those offences were a form of assault. The
appellant and his brother were not thereby compelled to give
false testimony.
Section 11(b) of the Charter of Rights and Freedoms
The Trial Judge’s Reasons
52In his reasons on the application for a stay of proceedings,
Dunn J. characterized the delay of 45 and one-half months as
“extremely long” and therefore requiring careful scrutiny. He
made certain findings in his review of the reasons for the delay
that can be summarized as follows. The application by the
defence for severance was not unreasonable, but it was not
unreasonable to await the outcome of the trial involving the
allegations by the D. sisters. The defence was not to be faulted
for then bringing a motion for a change of venue, but defence
counsel had to be aware of Brampton’s reputation for delay. The
delay that resulted from the mistrial caused by the juror
misconduct could not be considered systemic delay. There was no
significant prejudice to the accused “separate from that he has
faced as a result of his involvement in the other matters”.
53The trial judge held that, taking out delay due to defence
counsel’s unavailability, the systemic delay above what would
“ordinarily be required” was twelve months. He held that this
delay did not violate the appellant’s s. 11(b) rights for the
following reasons:
If there is eleven or twelve months beyond what
is accepted generally for the hearing of a trial
of this nature, then I look again at the overall
complexity of the matters, the not infrequent
change of counsel, the difficulty the accused has
had maintaining counsel, all of which to a degree
are included in the delay ordinarily occasioned,
and implicit in the delay the accused has faced
here. I remark that the choice of Brampton as a
forum for the trial of a charge of this nature,
that one can only expect – in my opinion – a
little more delay here than if another forum
perhaps was chosen. But how much, would some
person reasonably expect. Twelve months, in my
opinion, for a charge of this nature over and above
what would be reasonable, is, when weighed against
the public desirability of having charges of this
type, in these circumstances, tried, in my opinion,
not too much.
54For the reasons that follow, it is my view that the trial
judge made several errors that require that the appeal be
allowed. The trial judge misapprehended the evidence concerning
delay caused by the appellant’s change in counsel. The trial
judge also misapprehended the nature of the evidence of prejudice
to the appellant and as a result failed to properly apply this
factor. In particular, the trial judge erred in discounting the
prejudice to the appellant become some of it was caused by the
other charges facing the appellant during some of the relevant
time. He also erred in failing to give appropriate weight to the
inferred prejudice from the delay. The trial judge also placed
undue weight on the complexity of the case, given that the
complex issues had been resolved by decisions rendered by
MacKenzie J. in motions heard prior to the trial of the D.
sisters. Finally, the trial judge erred in failing to take into
account the increased burden on the Crown to expedite the trial
because of the decision to try the charges involving the D.
sisters first. The unexplained delay in proceeding with this
trial on two different occasions in 1996 weighed heavily against
excusing the one year of unreasonable delay found by the trial
judge. I will deal with these errors as they arise in the course
of the analysis of the factors to be considered on a s. 11(b)
application.
The s. 11(b) analysis
55In R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771 at 788, Sopinka J. held
that the determination of whether the accused’s right to a trial
within a reasonable time had been infringed could not be made by
the application of a mathematical formula. Rather, the court is
required to balance the interests the section is designed to
protect against the factors that either inevitably lead to delay
or are otherwise the cause of the delay. The balancing “requires
an examination of the length of the delay and its evaluation in
light of the other factors. A judicial determination is then made
as to whether the period of delay is unreasonable.” Sopinka J.
held that the court should consider the following factors:
the length of the delay;
waiver of time periods;
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, and
(e) other reasons for delay, and
- prejudice to the accused.
56I will briefly consider the delay in the appellant’s case
under those headings. However, I agree with the trial judge that
when the various explanations are considered there is twelve
months of unacceptable institutional delay. Counsel for the
respondent accepted that this is correct. However, the
respondent submits that the trial judge rightly concluded that
there was no violation of the appellant’s rights.
1. the length of the delay
57The delay to be considered in this case is the time from the
laying of the charges to the date the trial commenced, a period
of 45 and one-half months. The Crown concedes that this period
is of sufficient length to trigger an inquiry into the reasons
for delay.
2. waiver of time periods
58The Crown also concedes that no periods of time should be
deducted on account of waiver by the appellant.
3. the reasons for the delay
(a) inherent time requirements of the case
59The appellant’s case proceeded rapidly through the
provincial court. The preliminary inquiry was completed
approximately 40 days after the information was laid. It is
unclear when the appellant’s case was ready to proceed in the
General Division. Prior to the severance application, two
judicial pre-trial conferences were held in December 1993 and
June 1994 and two target dates, of May and October 1994, set. It
is reasonable to conclude that despite the May target date, the
case was not ready to proceed until after the June 1994 pre-trial
conference. In the circumstances, inherent time requirements of
the case at least explain the delay until the second pre-trial in
June 1994.
60The appellant was convicted on the first set of charges in
April 1995 and sentenced on those charges on June 28, 1995. The
indictment concerning the N. charges was adjourned to the October
10, 1995 assignment court with the hope that the trial would
proceed on the sittings in Orangeville beginning October 16,
- According to Crown counsel, the Orangeville court has
sittings for one week in each of May and June and two weeks in
October. This would appear to be the explanation for the
decision to adjourn the appellant’s case to October. However,
since the case was ready to proceed, I would not attribute any of
this delay to the inherent time requirements of the case.
61Some short period of delay after the second mistrial is
properly characterized as part of the inherent time requirements
of the case. After the second mistrial, the appellant had
exhausted his own financial resources and needed time to make
other arrangements to continue the retainer of his counsel. A
short adjournment was granted to accommodate the appellant.
62Mr. Wright argued that the two mistrials, especially the
mistrial caused by juror misconduct, should not be considered as
legitimate explanations for delay and the Crown should be held
responsible for those delays. There is no suggestion that the
Crown had anything to do with either mistrial, although the first
mistrial was caused by carelessness by a Crown witness. In my
view, the delay properly attributable to the mistrials must be
considered part of the inherent time requirements of the case.
63In Morin at p. 800, Sopinka J., in reference to R. v. Rahey,
1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588, held that delay resulting from excessive
adjournments by the trial judge could not be relied upon by the
Crown to justify the period under considerations. Mr. Wright
sought to bring the appellant’s case within that principle. In
Rahey, the trial judge adjourned the case nineteen times over an
eleven month period while he considered a defence motion for a
directed verdict. The superior court judge who considered the
accused’s s. 11(b) application described this conduct as
“shocking, inordinate and unconscionable”. As La Forest J. held
at p. 633, “the courts, as custodians of the principles enshrined
in the Charter, must themselves be subject to Charter scrutiny in
the administration of their duties”.
64The two mistrials in this case are of a different character.
They were required to ensure that the appellant and the Crown
received a fair trial by an impartial tribunal. As to the
mistrial caused by juror misconduct, in my view, that cannot be
analogized to the kind of misconduct that occurred in Rahey.
Jurors are the triers of fact, but they are not the custodians of
the principles enshrined in the Charter, in the sense referred to
by La Forest J. in Rahey. It would be unreasonable and unfair to
place blame for juror misconduct at the feet of the Crown.
65A better analogy is provided by the circumstances that
confronted the court in R. v. MacDougall, 1998 CanLII 763 (SCC), [1998] 3 S.C.R. 45
where the delay resulted from the trial judge’s illness. In that
case, McLachlin J. noted that in some circumstances the Crown may
be responsible for delays caused by the trial judges. She held
at p. 68, however, that “the inherent time requirements of a case
are not limited to commonplace delays which occur in every
situation, but may include delay due to extraordinary and
unforeseeable events”. She referred with approval to the
decision of Doherty J.A. in R. v. Allen (1996), 110 C.C.C. (3d)
331 (Ont. C.A.) affirmed 1997 CanLII 331 (SCC), [1997] 3 S.C.R. 700. In Allen part of
the delay was due to a lengthy adjournment in the course of the
trial when the trial could not be completed within the initial
time set aside. As Doherty J.A. said, at p. 348, “the inherent
time requirements needed to complete a case are considered to be
neutral in the s. 11(b) calculus”.
66I would place the two mistrials that occurred in the course
of these proceedings in that category. The mistrial due to juror
misconduct meant that the trial could not be completed in
December 1996. The trial was eventually rescheduled for July 28,
1997, a delay of seven months. Not all of this delay was solely
due to the mistrial. Some was the result of lack of adequate
resources, some due to unavailability of defence counsel, and
some due to the unavailability of the Crown witnesses.
(b) actions of the accused
67In Morin, Sopinka J. referred to a number of actions of the
accused, not amounting to waiver, that nevertheless explain some
of the delay. He included matters such as change of venue
motions and adjournments necessitated by a change in counsel. In
this case, the appellant brought three motions that explain some
of the delay: the motion for disclosure of third party records,
the severance motion and the change of venue motion. As a result
of the third party records motion, the trial could not proceed in
the October 1994 sittings of the court. Thus, this motion
explains the delay until December 1994, approximately two months.
68The severance motion explains much of the delay while
proceedings concerning the D. sisters’ charges proceeded through
the courts, from December 1994 to June 28, 1995. Part of the
explanation for that delay was a mistrial caused by a Crown
witness blurting out some inadmissible evidence, with which I
have already dealt. In all, this constitutes an explanation for
most of this six-month period.
69The change of venue application caused a further delay. But
for that application, the trial of these charges would have
proceeded in October 1995. Instead, a new trial date in April
1996 had to be set. In his reasons, the trial judge appears to
have attached significance to the choice of Brampton as the new
venue. He said that this “choice of venue cannot escape
criticism” because of Brampton’s reputation for delay. Later,
the trial judge returned to this issue and suggested that the
appellant should have expected a little more delay in Brampton
than in other places.
70The submissions made to the trial judge indicated that
defence counsel favoured Brampton because of convenience for
counsel and because, unlike the smaller centres suggested by
Crown counsel, there are continuous jury sittings in Brampton.
Counsel also indicated that his experience was that trials
usually get on in Brampton if not on the first trial date then
certainly by the second trial date. Moreover, the venue was
selected by the very experienced judge who heard the motion, not
counsel. It is also somewhat disappointing that seven years
after the Supreme Court of Canada drew attention to the problem
of delay in Brampton in R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199,
accused are expected to accept greater delays in that
jurisdiction than in others.
71Having said that, I agree with the trial judge that the
appellant’s preference for Brampton as the venue explains some of
the delay. I would attribute most of the very lengthy delay
between the first appearance in that court in October 1995 and
the first trial date in April 1996 to this decision. It cannot
reasonably explain the subsequent delays.
72In considering the reasonableness of the delay, the trial
judge placed great weight on the appellant’s change of counsel.
I have set out that part of his reasons above but I repeat it
here for convenience:
If there is eleven or twelve months beyond what is
accepted generally for the hearing of a trial of
this nature, then I look again at the overall
complexity of the matters, the not infrequent
change of counsel, the difficulty the accused has
had maintaining counsel, all of which to a degree
are included in the delay ordinarily occasioned,
and implicit in the delay the accused has faced here.
[Emphasis added]
73In my view, the trial judge misapprehended the evidence in
this respect and this constituted an error. The appellant had,
of course, earlier been charged with offences involving the D.
sisters, for which he had retained counsel. That same counsel,
Mr. Ryder, represented the appellant in all of the provincial
court proceedings for both sets of charges. Following the
preliminary inquiry, the appellant retained Mr. Whitten for the
trial. There is no indication in the record and no allegation by
the Crown that this change of counsel in any way delayed the
proceedings. The record indicates that the appellant had
retained a third counsel, Mr. Lipson, to represent him for the
trial of these charges. Again, there is no indication in the
record and no allegation by the Crown that this change in counsel
in any way contributed to the delay. To the contrary, following
the sentencing on the first set of charges, Mr. Whitten indicated
that he had dates from Mr. Lipson and was in a position to set a
date for trial. As indicated, the case was then put over to the
October sittings for trial. In my view, the trial judge erred in
attributing any of the delay to change of counsel.
(c) actions of the Crown
74In his submissions, Mr. Wright attributed a number of
actions to the Crown as causing delay including the following:
i. the joinder of the D. and N. charges;
ii. proceeding with the D. charges first;
iii. the mistrial when a Crown witness blurted
out inadmissible evidence;
iv. the delay due to the two missed
trial dates in Brampton;
v. the mistrial caused by juror
misconduct.
75As I read his reasons, the trial judge did not attribute any
of these reasons for delay to the Crown. I essentially agree
with the trial judge. I have already dealt with the two
mistrials.
76I do not accept that the decision to join the two sets of
charges caused delay. To the contrary, had MacKenzie J.
concluded that the evidence of the N. charges was admissible as
similar fact evidence on the D. charges, the two sets of charges
would have been tried together and both of the appellant’s cases
would have concluded sometime in early 1995. I cannot say that
Crown counsel’s decision to attempt a joint trial was
unreasonable. I also cannot say that the decision to try the D.
charges first was unreasonable. They were the more serious
allegations.
77The fact that the appellant’s case was not reached on two
occasions is somewhat more troubling. There is no suggestion
that Crown counsel sought an adjournment. However, in view of
the lengthy delay that had already occurred because of the
severance, Crown counsel should have given the appellant’s case
more priority. There is no explanation in any of the material as
to why other cases proceeded in preference to the appellant’s
case notwithstanding the delay, which in April 1996 already stood
at two and one-half years. Having said that, in my view, the
delay caused by the missed trial dates in 1996 is more properly
analyzed under the heading “limits on institutional resources”.
The failure of the Crown to take steps to give this case some
priority can be considered at the end in the balancing exercise.
(d) limits on institutional resources
78To prevent the right to a trial within a reasonable time
from becoming meaningless, limits on institutional resources can
only be offered by the state as an explanation for some of the
delay. Sopinka J. held in Morin, at pp. 795-96, that there is a
point in time when the court will no longer tolerate delay based
on inadequate resources. This period was referred to as an
administrative guideline. It is not, however, a limitation
period nor a fixed ceiling on delay.
79In Morin at p. 799, Sopinka J. confirmed that the
justifiable institutional delay after committal for trial is in
the range of six to eight months. However, he stressed at p. 799
that this was for guidance of trial courts only and may have to
be adjusted to reflect local conditions. At trial, Dunn J. was
referred to the decision in R. v. Pusic (1996), 1996 CanLII 8215 (ON SC), 30 O.R. (3d) 692
(Ont. Ct. (Gen. Div.)). In that case, Hill J. provided an
exhaustive analysis of institutional resources in the Region of
Peel.2 He concluded with this comment at p. 720:
Such material and information as the court has before
it, raises a real question of the level of courtroom
and judicial resources committed to Peel. The judicial
rebuke of the dilemma in Peel was unequivocal in the
Askov decision. Alarming signals of institutional
endangerment of constitutional rights have emerged in
this case. To the extent that there exists
institutional (governmental) recklessness with respect
to the s. 11(b) rights of accused persons in Peel,
arising from insufficient resources, this cannot be
condoned by the courts.
80As I understand his analysis, Hill J. saw no basis for
adjusting the administrative guideline beyond the six to eight
months suggested in Morin. I did not understand Dunn J. to
disagree with this assessment. I would adopt it as well. Thus,
six to eight months of the delay is explained by limitation on
institutional resources.
(e) other reasons for delay
81There are no other relevant reasons for delay.
82To summarize, the trial judge concluded that approximately
twelve months of the delay was unexplained. This was twelve
months over and above what might be characterized as reasonable
systemic delay. Applying the Morin analysis, I have reached
approximately the same result.
4. prejudice to the accused
83The trial judge held there was no significant prejudice to
the appellant because much of what was referred to in his
affidavit probably resulted from the other charges and because it
was the same kind of prejudice as anybody faces “charged with
similar offences with some difference”. He did acknowledge that
he was “obliged to weigh some prejudice of course”.
84In my view, the trial judge misapprehended the nature of the
evidence of prejudice in this case and failed to properly apply
the factor of prejudice as explained in Morin. The trial judge
erred in discounting the prejudice to the appellant because some
of it was due to the other charges. The other charges were part
and parcel of the delay in this case. It was reasonable to try
those charges first and this explained much of the early delay
but this does not mean that the appellant was not prejudiced by
that delay. Section 11(b) protects the right to security of the
person by, as it was put in Morin at p. 786, “seeking to minimize
the anxiety, concern and stigma of exposure to criminal
proceedings”. At p. 802-803, Sopinka J. held that prejudice to
the accused’s security interest could be shown by evidence of the
“ongoing stress or damage to reputation as a result of overlong
exposure to the ‘vexations and vicissitudes of a pending criminal
accusation’”.3 In my view, that clearly applies in this case.
The stress to the appellant was ongoing as a result of all the
charges and in the circumstances of this case it was not
realistic to distinguish between the two sets of charges.
85In my view, the trial judge also erred in failing to give
appropriate weight to the inferred prejudice from the delay. As
Sopinka J. said in Morin at p. 801, “[t]he longer the delay the
more likely that such an inference will be drawn”. Forty-five and
one-half months is a very long delay and prejudice should have
been inferred from this prolonged delay. This is not a case where
action or inaction by the appellant should be used to mitigate
the effect of the prejudice. In Morin, the court inferred that
little or no prejudice resulted from the delay because counsel
had failed to take up an offer by Crown counsel to find an
earlier trial date and bring the case forward from the previously
scheduled trial date. Exactly the opposite occurred in this case.
After the case was not reached in September 1996, it was
adjourned to February 10, 1997 for trial. However, the appellant
was then offered the earlier December 16, 1996 date and the trial
was moved up to that date.
The “balancing”
86The purpose of the analysis of the delay under the various
Morin headings is to provide a framework for the balancing
exercise. Sopinka J. described the nature of the exercise in
these terms at p. 788:
The judicial process referred to as "balancing"
requires an examination of the length of the delay
and its evaluation in light of the other factors. A
judicial determination is then made as to whether
the period of delay is unreasonable. In coming to
this conclusion, account must be taken of the
interests which s. 11(b) is designed to protect.
87The interests s. 11(b) is designed to protect include not
only the interests of the accused but the societal interest in
seeing that accused are tried promptly. Further, the more
serious the charge the greater the “societal demand that the
accused be brought to trial”.4
88The trial judge concluded that, “[t]welve months … for a
charge of this nature over and above what would be reasonable,
is, when weighed against the public desirability of having
charges of this type, in these circumstances, tried, in my
opinion, not too much”. In my view, the trial judge having found
an unreasonable delay of one year erred in dismissing the defence
application because of the societal interest in trying serious
charges.
89This was a serious charge, but not as serious as the
allegations in the charges involving the D. sisters. The Crown
elected to proceed with the more serious charges first. That
was a reasonable choice, but it placed an increased burden
on the state to ensure that these charges were dealt with as
quickly as possible thereafter. Yet on two trial dates, the
appellant’s case was not reached. The only evidence indicates
that the appellant was required to be available during the weeks
of April 15-19 and September 23-27, 1996, but no court was
available during this time to try his case. Even if the
appellant’s case had proceeded on April 15th, thirty months would
already have passed, just under twenty-nine months having elapsed
from the order to stand trial. The Crown offered no explanation
for the inability to try the case during these time periods. In
the result, the abortive first trial did not commence for
approximately thirty-seven months after the order to stand trial
and about eighteen months after the sentencing on the trial
involving the charges relating to the D. sisters. In my view,
this factor weighed very heavily against excusing the one year
of unreasonable delay.
90The trial judge highlighted four other factors for deciding
that the one year of unexplained institutional delay did not
infringe the appellants rights. He considered the lack of
significant prejudice, the “overall complexity of the matters”,
the “not infrequent change of counsel” and “the choice of
Brampton as a forum”.
91I have already indicated my view that the trial judge did
not properly weigh the prejudice to the appellant. I have also
indicated that the trial judge misapprehended the evidence
concerning the change in counsel. In my view, the trial judge
also overemphasized the complexity of the case. While there were
some complex matters, such as disclosure of third-party records
and admission of similar fact evidence, those issues were
resolved by MacKenzie J. prior to the trial of the allegations
involving the D. sisters. The defence had agreed that the
rulings would apply to the subsequent trials. One cannot on one
hand excuse a considerable delay because of the need to try the
more serious charges first, while ignoring the effect that manner
of proceeding had on simplifying the issues on the subsequent
trial.
92This leaves the choice of Brampton as a forum. I have
already indicated my agreement with the trial judge that this was
a factor to be considered. It cannot alone, however, excuse the
unreasonable delay of one year in this case. It could, at most,
excuse one or two months more than would otherwise be tolerable.
In my view, the trial judge erred in dismissing the appellant’s
application.
DISPOSITION
93Accordingly, I would allow the appeal, set aside the
conviction, order a new trial and stay the proceedings on the new
trial.
(signed) "M. Rosenberg J.A."
(signed) "I agree R. McMurtry C.J.O."
(signed) "I agree Doherty J.A."
RELEASED: June 13, 2000
1 On appeal, Mr. Wright argued that s. 574 of the Criminal
Code was unconstitutional. Since the validity of the indictment
was not raised in the trial court, it is not appropriate to
consider this issue.
2 The General Division courthouse for Peel Region is in
Brampton.
3 Referring to R. v. Mills, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863 at 919.
4 R. v. Morin, at p. 787.
