COURT OF APPEAL FOR ONTARIO
Laskin, Sharpe and Watt JJ.A.
BETWEEN
Her Majesty The Queen
Respondent
and
Laura Thomson
Appellant
Jonathan Dawe, for the appellant
Benita Wassenaar, for the respondent
Heard: October 9, 2009
On appeal from the conviction imposed in the Superior Court of Justice, dated November 16, 2007, following the order of Justice Kenneth A. Langdon, dated September 10, 2007, dismissing an application for a stay of proceedings for unreasonable delay.
1The appellant was convicted of aggravated assault and sentenced to three years and four months imprisonment after credit for pre-trial custody. Her appeal involves one issue: did the pre-trial Charter application judge err by dismissing her application for a stay on the ground that her s. 11(b) Charter right “to be tried within a reasonable time” was infringed?
FACTS
2The Crown alleged that the appellant, then 20 years old, tied up her boyfriend in their apartment while engaging in sado-masochistic sexual activity. She left the room and David Schroeder, her former boyfriend, entered the apartment and inflicted multiple stab wounds upon the victim. The Crown’s theory of the case was that the victim had abused the appellant and that she struck back by tying him up to facilitate the attack by Schroeder.
3The case has a complex procedural history. The appellant was arrested in July 2002 and convicted more than five years later on November 16, 2007, after a 14 ½-day trial before judge and jury. The appellant had been jointly charged with Schroeder with conspiracy to commit murder, attempted murder, and aggravated assault. Following a lengthy preliminary inquiry, the preliminary inquiry judge committed Schroeder but discharged the appellant on all counts. The Crown brought a certiorari application in the Superior Court to quash the appellant’s discharge. The Superior Court judge granted certiorari and quashed the discharge, but rather than remitting the matter to the preliminary inquiry judge for further consideration, committed the appellant for trial on all counts. The appellant appealed that order to this court. In view of the decisions of the Supreme Court of Canada in R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601 and R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, rendered after the appeal had been launched, the appellant conceded that her discharge was infected by jurisdictional error and susceptible to review by way of certiorari. However, the appellant argued that the Superior Court judge hearing the certiorari application had no authority to commit her for trial. That argument was accepted by this court: (2005), 2005 CanLII 8664 (ON CA), 74 O.R. (3d) 721 (C.A.). We found, at para. 22, that “the appropriate order in this case was to quash the discharge and remit the matter to the preliminary inquiry judge for further consideration on the whole of the evidence.” The matter was accordingly remitted to the preliminary trial judge and it was not until some 18½ months later that the appellant was committed for trial on the count of aggravated assault but discharged on all other counts.
4It is common ground that the period following the appellant’s initial discharge (three months) and the time taken for the certiorari application and appeal to this court (11 months) must be deducted for the purposes of calculating the period of delay relevant to s. 11(b). The Crown acknowledges that the remaining period of 48½ months of delay warranted a s. 11(b) inquiry and that the appellant has never waived her s. 11(b) rights.
REASONS OF THE APPLICATION JUDGE
5The application judge found that approximately 23 months of the 48 ½ months of non-appellate delay was “unreasonable”, “unacceptable” and attributable to the Crown. He also found that given the appellant’s stringent bail conditions, she had suffered prejudice to her liberty and security of the person interests. However, the application judge refused to grant a stay. He stated, at para. 48,
the only remedy for undue delay is a stay of proceedings. Such a drastic remedy should be confined to the clearest of cases. The court must be satisfied that of fair hearing can no longer be had in light of the passage of time. If a fair hearing can be conducted, despite the passage of time, the trial should proceed.
6It is clear from the balance of his reasons that he applied that test in determining the fact the delay had not prejudiced the fair trial rights of the appellant and that as this was not “the clearest of cases”, a stay should be refused.
POSITIONS OF THE PARTIES
7The appellant accepts and substantially adopts the application judge’s reasons for the delay as well as his finding that the appellant had suffered significant prejudice to her liberty and security of the person interests. The appellant submits, however, that the application judge erred in law by applying the wrong test for a stay in the case of a breach of s. 11(b).
8Before us, Crown counsel quite properly and fairly conceded that the application judge had erred in law and that he had applied the wrong test for s. 11(b) stay. However, the Crown argues that the appeal should be dismissed on the ground that the application judge erred in attributing significant portions of the delay to the Crown.
ANALYSIS
1) “Clearest of cases” standard and s. 11(b)
9We agree that the application judge erred in law by applying the “clearest of cases” test and in focusing his analysis on the issue of trial fairness. For non-section 11(b) Charter breaches, a stay is the remedy of last resort to be reserved for the clearest of cases, the vast majority of which involve prejudice to the right to a fair trial or the right to make full answer and defence. However, a different test applies in the case of a breach of s. 11(b). There, a stay is the “minimal remedy” and it has been held that “[n]o flexibility exists; a stay of proceedings must be ordered”: see Rahey v. The Queen, 1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588, at p. 615; R. v. Kporwodu (2005), 2005 CanLII 11389 (ON CA), 75 O.R. (3d) 190 (C.A.), at para. 2. Proof of actual prejudice to the rights to a fair trial and to make full answer and defence is not invariably required. The purpose of s. 11(b) is broader. In R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771, at p. 786, Sopinka J. held that there are three aspects to the right:
The right to security of the person is protected in s. 11(b) by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh.
10An interference with the accused’s liberty or security of the person interests may be sufficient to make out a s. 11(b) breach when considered together with the length of the delay and the explanation for why the delay occurred: R. v. Godin (2009), 2009 SCC 26, 245 C.C.C. (3d) 271, at para. 38.
11By applying the “clearest of cases” standard and by concluding that as there was no impairment of the appellant’s fair trial rights, there has been no s. 11(b) breach and that a stay should not be granted, the application judge erred in law.
2) Attribution of Delay
12The central issue is whether the application judge erred in attributing 23 months of delay to the Crown and to institutional delay for which the state must accept responsibility. The application judge broke down the total period of delay into five stages:
Stage 1 concerned the 18 months between the appellant’s arrest and her initial discharge;
Stage 2 concerned the three months between the appellant’s initial discharge and the decision committing her on all counts on the Crown’s certiorari application.
Stage 3 concerned the 13 months between the committal on all counts and the appellant’s successful appeal setting aside the committal remitting the matter to the preliminary inquiry judge.
Stage 4 concerned the 18½ months that elapsed between this court’s order remitting the matter to the Ontario Court of Justice for further consideration and the appellant’s committal on the charge of aggravated assault alone.
Stage 5 concerned the 12 months following the committal on aggravated assault only and the commencement of the appellant’s trial.
13There are two periods at issue on this appeal, Stages 1 and 4, both involving the committal proceedings in the Ontario Court of Justice. The motions judge found, at para. 100, that the total period of 23 months delay, 12 months during Stage 1 and 11 months during Stage 4, was “the result of institutional delay, unnecessary delay or unreasonable delay for which the state must accept responsibility.”
14The respondent Crown challenges the application judge’s findings for Stages 1 and 4.
a) Stage 1
15With respect to Stage 1, the Crown relies on the decision of this court in R. v. Allen (1996), 1996 CanLII 4011 (ON CA), 110 C.C.C. (3d) 331, at p. 348, where Doherty J.A. stated the following:
When addressing s. 11(b), one must consider the inherent time requirements needed to get a case into the system and to complete that case. Those time requirements can include adjournments necessitated by the need to find additional court time when initial time estimates prove inaccurate. The inherent time requirements needed to complete a case are considered to be neutral in the s. 11(b) calculus. The recognition and treatment of such inherent time requirements in the s. 11(b) jurisprudence is simply a reflection of the reality of the world in which the criminal justice system operates. No case is an island to be treated as if it were the only case with a legitimate demand on court resources. The system cannot revolve around any one case, but must try to accommodate the needs of all cases. When a case requires additional court resources the system cannot be expected to push other cases to the side and instantaneously provide those additional resources. [citations omitted]
16In our view, the situation in the case at bar is distinguishable as the application judge identified causes for the delay that take this case out of the realm of the inherent time requirements discussed in Allen. The underestimation of the time required for the preliminary inquiry was directly attributable to the Crown’s failure to disclose in timely fashion the contents of the appellant’s lengthy video statement. The amount of time over the estimate taken for the preliminary inquiry was almost precisely the amount of time required to deal with the video statement. Had the time actually required been accurately estimated and scheduled at the outset, later difficulties in finding additional dates to complete the preliminary inquiry – which led to further delay - could have been avoided. The application judge found that had more timely disclosure been made by the Crown, a more realistic estimate of the time required for the preliminary inquiry could have been set and several months could have been saved.
17The application judge also found that when the matter took longer that the initial estimate, despite the preliminary trial judge’s direction to the trial coordinator to prioritize the case, the matter proceeded intermittently and with significant added delays, as other matters were added to the docket. Moreover, the application judge found that even after delay became a serious concern, no steps were taken to ensure that it was completed as quickly as possible. As a former member of the Ontario Court of Justice, the application judge was particularly well-placed to assess the cause of the delay. We see no basis to interfere with his finding that the delay was unnecessary and not explainable as a product of the inherent time requirements needed to complete the case.
18Accordingly, we would not give effect to the Crown’s submission that the trial judge erred in finding that a delay of 12 months was caused by a combination of late disclosure by the Crown and the Ontario Court of Justice’s failure to schedule the preliminary inquiry in an appropriate fashion, and that that period should thus be attributed to the Crown for the purposes of the s. 11(b) analysis.
b) Stage 4
19With respect to Stage 4, the Crown submits that had the appellant not appealed her committal on all counts on the Crown’s certiorari application, she would have been tried with her co-accused in a timely fashion and that the 11 month delay should not be attributed to the Crown. In our view, this submission is entirely devoid of merit. As already noted, the time taken for the appeal itself has already been subtracted from the period of delay relevant to the s. 11(b) inquiry. The appellant had a legal right to appeal the order committing her on all counts and by so doing, she achieved a significant benefit. As a result of the appeal and the remission of the matter to the preliminary inquiry judge for further consideration, rather than facing trial on conspiracy to commit murder, attempted murder, and aggravated assault, the appellant faced trial only on the count of aggravated assault. We fail to see how the appellant can be said to have delayed her trial or to have waived or forgone an earlier trial date by successfully insisting upon her legal rights and achieving a significant benefit thereby.
20We see no error on the part of the application judge in his attribution to the Crown of 11 months delay at Stage 4. As a result of the delay that had already occurred at Stage 1, this case was already teetering on the brink of the s. 11(b) abyss. Despite this, the Crown failed to take any steps at Stage 4 to ensure that the matter moved forward expeditiously. To the contrary, the Crown adopted a strategy for the case that was bound to result in further significant delay.
21The Crown took the position that the order of this court amounted to a mandamus and that the preliminary inquiry judge had no option but to commit the appellant on all counts. This, in turn, led the Crown to insist upon a separate date to argue that issue and to refuse to agree to dates for the reconsideration until after that issue had been decided. Further delay resulted when Crown counsel was unavailable on the dates that had been set. In the end, there was a delay of 18 months for a matter that took a total of only three days to argue and one month for the preliminary inquiry judge to decide.
22In our view, a substantial portion of that delay was directly attributable to the unreasonable position taken by the Crown. It is difficult to see any basis for Crown counsel to have interpreted this court’s order remitting “the matter to the preliminary inquiry judge for further consideration on the whole of the evidence” as amounting to an order for mandamus. As we explained at para. 19 of our judgment, “Parliament has clearly assigned jurisdiction to the preliminary inquiry judge in s. 548(1) of the Criminal Code to commit or discharge an accused.” The only reference to mandamus was at para. 21, where we pointed out that the Crown could ask for that remedy in an appropriate case. As the Crown clearly had not asked for mandamus and as our order remitted the matter to the preliminary inquiry judge for further consideration on the whole of the evidence, there was no reasonable basis for the Crown taking the position it did. Accordingly, the Crown must be held accountable for the delay that resulted.
3) Total Delay and Prejudice under s. 11(b)
23The period of 48 ½ months of non-appellate delay was well in excess of the 14 to 18 month guideline for cases involving a preliminary hearing. The application judge did not err in attributing 23 months of that delay to the Crown and to institutional delay for which the state must accept responsibility. On appeal, the Crown does not seriously challenge the application judge’s finding that the appellant suffered significant prejudice to her liberty and security of the person interests.
24Although the appellant was charged with a very serious offence involving significant bodily harm, the seriousness of the charge is but one factor to consider and will not by itself justify what is otherwise an unreasonable delay: Kporwodu, at para 192.
25When faced with an application for a stay on grounds of delay, a judge must consider many factors together in a balancing analysis. As McLachlin J. wrote in her concurring reasons in Morin, at p. 810,
[t]he task of a judge in deciding whether proceedings against the accused should be stayed is to balance the societal interest in seeing that persons charged with offences are brought to trial against the accused's interest in prompt adjudication. In the final analysis the judge, before staying charges, must be satisfied that the interest of the accused and society in a prompt trial outweighs the interest of society in bringing the accused to trial.
The factors to be considered include the length of the delay, any waiver by the accused of the delay, the reasons for the delay and prejudice to the accused. But simply listing factors does not resolve the dilemma of a trial judge faced with an application for a stay on grounds of delay. What is important is how those factors interact and what weight is to be accorded to each.
26In the present case, a delay of 48 ½ months of non-appellate delay, 23 months of which were attributable to the state, caused substantial prejudice to the appellant’s liberty and security of the person interests and therefore constituted a breach of the appellant’s s. 11(b) right to be tried within a reasonable time.
CONCLUSION
27Accordingly, we allow the appeal, set aside the conviction and enter a stay.
“John Laskin J.A.”
“Robert J. Sharpe J.A.”
“David Watt J.A.”
RELEASED: November 5, 2009
