WARNING

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

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

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

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

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

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

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written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.4 (4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

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

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

Court Information

Court File No.: Halton 08-3764

Date: January 8, 2016

Ontario Court of Justice

Central West Region

Parties

Between:

Her Majesty the Queen

— AND —

G.V.E.

Judicial Officer and Counsel

Before: Justice Richard H.K. Schwarzl

Heard on: October 26, 27 and 28, 2015

Reasons released on: January 8, 2016

Counsel:

• Ms. Deborah Kinsella for the Respondent/Crown
• Mr. James Fleming for the Applicant/Defendant

SCHWARZL, J.:

RULINGS RE CHARTER SECTIONS 11(B) AND 7

1.0: INTRODUCTION

1The Defendant, G.V.E., was charged in November 2008 with two sexual offences against his niece, K.H., who was then seven years old. A trial was held in the Provincial Court. The parties had initially predicted it would take less than one day to complete the trial, but it wound up taking eight instead. The Defendant was found guilty of both charges in May, 2011. He was sentenced over a year and a-half after that in August, 2012.

2The Defendant appealed his convictions. In December, 2014 a Summary Conviction Appeal Judge allowed the appeal, remitting both charges back to the Provincial Court for a re-trial. A five day trial has been fixed for March 14 to 18, 2016. I am the judge on the second Provincial Court trial.

3The total time from the laying of the charges to the final day of the re-trial is 88 months or seven and one-third years.

4The Defendant submits that his rights guaranteed by sections 7 and 11(b) of the Canadian Charter of Rights and Freedoms (the "Charter") have been violated. As a remedy, he seeks a stay of proceedings of both charges. The Crown submits that none of the Defendant's rights have been breached. The Crown further submits that if I find that the Defendant's section 7 Charter right was infringed a stay of proceedings is a disproportionate remedy.

2.0: FACTS

2.1: Swearing of the Information to the First Trial Date: November 26, 2008 to March 24, 2010

5The Defendant was arrested for these offences on November 21, 2008 and released from the police station by means of a Form 11.1 Police Undertaking. The Defendant was required to stay away from the complainant and her family, to remain in Ontario, and to abstain from alcohol.

6On November 26, 2008 a two-count Information was sworn alleging that the G.V.E. had committed offences against K.H. contrary to sections 151 and 271 of the Criminal Code on or between November 15 and 16, 2008.

7The case was first in court on December 19, 2008. The Defendant appeared in person with his lawyer, Mr. Verbeek. The Crown did not yet have its brief. The complainant lived in Grey County which caused a delay in the obtaining and disclosing of evidence which meant that the Crown had nothing to give to the defence on the first appearance. Mr. Verbeek requested the matter return on January 27, 2009. When offered to return on an earlier date, Mr. Verbeek told the court that he was content with the day he recommended.

8On January 27, 2009 the Defendant attended court with Mr. Verbeek. At that time, initial disclosure was provided by the Crown. The defence requested the case be adjourned to February 17, 2009 to review the disclosure.

9On February 17, 2009 Mr. Verbeek appeared on behalf of the Defendant who was not present. Mr. Verbeek informed the court that on February 9 he sent a letter to the Crown requesting eight items of disclosure, mainly videos of various witness interviews. He suggested that the matter be adjourned for four weeks to permit the Crown an opportunity to respond to his disclosure request. The Crown agreed and the case was postponed until March 17, 2009.

10On February 23, 2009 Mr. Verbeek was notified that the disclosure he asked for was available for pick up at the Halton Crown Attorney's office. Mr. Verbeek picked up the material on the next court appearance of March 17.

11On March 17, 2009 Mr. Verbeek appeared by way of designation. He asked for four weeks to review the disclosure he was picking up that day.

12On April 14, 2009 Mr. Verbeek appeared by way of designation. He told the court that a resolution meeting between himself and Crown counsel was scheduled for May 7. Mr. Verbeek requested an adjournment until May 19.

13On May 8, 2009 Mr. Verbeek conducted a resolution meeting with Crown Counsel, Mr. Coppolino. The Defendant was promoting a resolution by way of a guilty plea to a non-sexual offence. Between May 8 and the next court appearance of May 19, 2009 Mr. Verbeek and Mr. Coppolino continued discussing the case with a view to potential settlement. Mr. Coppolino undertook to discuss the proposed resolution with the complainant's family prior to agreeing to any plea bargain.

14When the matter returned to court on May 19, 2009 Crown counsel had yet to speak with the complainant's family given the distance that they lived from Halton Region. After consulting with Mr. Coppolino, Mr. Verbeek requested that the case be adjourned to June 30, 2009.

15When the matter returned to court on June 30, 2009 it was clear that the matter could not be resolved by a plea to any lesser offence because the complainant's family was still angry at the Defendant. As a result, Mr. Verbeek and Mr. Coppolino conducted a meeting that day which focussed on trial management. Notes of that meeting reveal that the Crown intended to call one witness at trial (no doubt the complainant) and that the defence expected to call the Defendant and perhaps an expert. Both lawyers estimated the three witness trial to take less than one court day. Had the trial proceeded as predicted at this time, the time estimate for trial was reasonable. Subsequent to that meeting, Mr. Verbeek set two dates. The first was for a judicial pre-trial conference ("JPT") on October 16, 2009. The second was for a three-quarter day trial on March 24, 2010, which was the first date offered by the trial coordinator. The first date offered was nearly nine months into the future for what the parties agreed at the time would be a short and simple trial.

16The matter was next in court on October 16, 2009 for a JPT. Mr. Verbeek appeared for the defence; Mr. Coppolino for the Crown. The judge's pre-trial form shows that the defence might call four witnesses 'maximum', including an expert. The same form also shows that the Crown intended to call three or four witnesses. Despite the case exploding from two or three witnesses to seven to eight no one addressed the adequacy of the three-quarter day time estimate which was confirmed on the record by the JPT judge confirmed without comment.

17At the JPT, both counsel signed and acknowledged the following on the JPT form:

Counsel undertake to advise the Trial Coordinator, as soon as possible, if anything discussed at the pre-trial changes before the proceeding commences.

Counsel acknowledge that they have been advised that, should the estimate of court time be inadequate, they may be ordered to appear on a day-to-day basis until the matter is completed.

18By October, 2009 two things were clear about the defence in this case. First, they were open to resolving the matter by a plea of guilty to a lesser offence. Second, as shown by the totality of the evidence heard on this application, the strategy of the defence at trial was to admit that the Defendant touched his niece's crotch. The only disputed issue from the defence point of view was whether the Crown could prove beyond a reasonable doubt that the touching was for a criminal purpose. The defence was, and remains, that the touching was for an innocent and non-sexual purpose.

19Between the JPT and the trial date, the defence continued to pursue resolution. Given that the apparent obstacle to a plea bargain was the resistance of the complainant's family because of continuing and understandable hard feelings, the Defendant decided to write a letter of apology and explanation to the complainant and her family to be delivered through the auspices of the Crown Attorney's office. His letter, dated January 15, 2010, was sent by Mr. Verbeek to Ms. Mary Ward of the Halton Crown Attorney's office on February 16, 2010 which was five weeks ahead of the trial date. Ms. Ward had been assigned to prosecute the Defendant sometime in late January or early February, 2010.

20Ms. Ward spoke with, and then wrote to, Mr. Verbeek in early March 2010 about the Defendant's letter. She stated that she would return it to counsel if the Defendant's apology was provided "with the expectation that the parents or the Crown could not refer to it at the trial. If your client was not concerned about its use, I will pass it on to the complainant's parents." On March 8, 2010 Mr. Verbeek wrote to Ms. Ward and stated "please be advised that my client does not object to the release of the letter from him dated January 15, 2010 and understands that it may be referred to at the trial."

21In early February, 2010 Ms. Ward reviewed the Crown brief. She noticed in the statement of the complainant's father that the Defendant may have inappropriately touched another family member who presently resided in the Maritimes. On February 4, 2010 Ms. Ward asked the officer in charge of the case to interview the potential similar fact witness. The statement was made by the witness and given by the police to the Crown on February 15, 2010. Ms. Ward was unable to review the statement until February 26, 2010.

22On March 3, 2010 Ms. Ward decided she would call similar fact evidence at the trial which was now only three weeks away. The purpose of the proposed evidence was to rebut a defence of innocent association and to demonstrate that the Defendant was undeterred by the risk of detection. Her decision was not influenced by the Defendant's apology letter because at the time she decided to call the similar fact evidence she did not know if the defence would permit the apology letter to be used at the trial. Her knowledge that the Defendant's letter could be used in court came later on March 5, 2010.

23Ms. Ward asked Mr. Verbeek if her similar fact evidence application would be opposed. On March 8, 2010 Mr. Verbeek wrote to Ms. Ward that he had no instructions to consent to her application.

24On March 12, 2010 being just twelve days before the trial Ms. Ward served and filed her similar fact application with the court. She spoke to Mr. Verbeek and told him that the trial would now likely take two days. She did not speak to the trial coordinator about the need for more trial time even though it was now obvious the case would take much longer than originally thought. Ms. Ward's failure to inform the court of a material change in the case contravened Mr. Coppolino's undertaking at the JPT to inform the trial coordinator of any changes to subjects discussed including time for trial.

25The time between laying the Information (November 26, 2008) and the first trial date (March 24, 2010) was 483 days or 16 months.

26The time between setting the trial date on June 30, 2009 and the trial date of March 24, 2010 was 267 days or 8¾ months.

27The time between the JPT and the first trial date was 159 days or 5¼ months.

2.2: First Trial Date to Judgment Date: March 24, 2010 to May 30, 2011

28At the outset of the trial on March 24, 2010 the court was informed that the parties now believed the trial would take two days, not one. In anticipation of the need for more time, Mr. Verbeek informed the court that he had made himself available to continue the case the very next day. It appears that Mr. Verbeek prepared the defence to be ordered to appear day-to-day to complete the matter just as he had acknowledged at the JPT. However, the trial judge was not available the next day and told counsel that another court day was at least two or three months off.

29On the first trial date the complainant and her mother were called and completed. At the end of the day's evidence the court engaged both counsel in scheduling discussions. These were not reproduced for this hearing but it is clear that the parties believed that three more days were needed, for a total of four days which was a quadrupling of the original estimate due to the similar fact application. Those three additional days were July 12, August 17, and August 20, 2010. When asked by the court if he believed section 11(b) of the Charter would be an issue for these dates, Mr. Verbeek stated, "No I don't, Your Honour."

30The trial continued for a second day on July 12, 2010. The complainant's father gave evidence for the prosecution. But for the similar fact application, the evidence for the Crown was completed in one and a-half days. When that third Crown witness was completed, the parties addressed the court on the similar fact application. The Crown sought to proceed on the basis of the witness's statement whereas the defence sought to have the witness produced and examined in court. After hearing the submissions of both parties the trial judge ruled that the admissibility of the similar fact witness's evidence could be argued without the need to produce her at the voir dire. The balance of the court day was consumed by the submissions of both counsel regarding the Crown's similar fact application.

31The trial judge told the parties that he would give his ruling on the next trial date of August 17, 2010. In discussing scheduling, both parties agreed that the next day would deal with the judge's evidentiary ruling. The parties also agreed that if the similar fact application was granted it would not be possible to conclude the matter on August 20, 2010. Despite this, no additional days were sought by the Crown or arranged on July 12.

32The third day of the trial took place on August 17, 2010. The appearance was very brief. After handing counsel his written reasons, the trial judge gave the result of his ruling which was to admit the similar fact evidence. The matter was remanded to August 20, 2010 to continue the evidence. Again, there was neither discussion nor submissions regarding additional trial time despite everyone's knowledge on July 12 that (a) August 17 would be a day lost to hearing evidence, and (b) it was not possible to conclude the trial on the remaining scheduled date of August 20.

33The trial continued for a fourth day on August 20, 2010. The entire day was devoted to the examination-in-chief of the similar fact witness, which was not completed. At the end of the day, the trial judge asked counsel how much more time was necessary to complete the matter. Crown counsel assessed the time requirement as one additional day. Mr. Verbeek agreed. After the trial judge challenged this assessment, both counsel agreed to set two further days. The trial judge told counsel when selecting the dates to have a gap of about one month between them so that if the matter finished on the first continuation day other cases could be scheduled for the second date. The trial judge remarked that the Provincial Court in Halton is inundated with trial continuations and commented that to get a clear day could take until well into the next year. December 1, 2010 and January 25, 2011 were set to continue the trial. When the trial judge asked if these two dates were agreeable to counsel, Crown counsel said they were. Mr. Verbeek did not answer. Mr. Verbeek did not, and was not asked to, address the court as to whether or not the Defendant waived his right to be tried within a reasonable time. Mr. Verbeek's acquiescence cannot be viewed as waiver. The continuation days were respectively 3 1/3 and 5 ¼ months into the future.

34On December 1, 2010 the matter did not proceed because Mr. Verbeek was unable to attend due to his recovering from recent surgery. The Defendant appeared with a letter from Mr. Verbeek that listed 39 available dates between February 1 and April 15, 2011. April 13, 2011 was selected by the court to continue the case after the next date of January 25, 2011. There was no explanation on the record why no dates in February or March were offered by the court. The replacement date was thus more than four months away, although Mr. Verbeek was not available during the first two of those months.

35The trial continued for a fifth day on January 25, 2011. The similar act witness for the Crown was completed in chief, was cross-examined, then re-examined. Judging by the transcript, the similar act witness was a lengthy one. The case for the Crown was closed after the similar act witness. The Defendant took the witness box. His examination-in-chief was completed and his cross-examination was commenced but not finished that day. The parties agreed to continuing the trial on March 23, 2011 while at the same time retaining April 13, 2011.

36The case continued for a sixth day on March 23, 2011. At that time, the Defendant's testimony was completed. The second, and last, defence witness was commenced and finished by the end of that day. After six court days, the evidence was now complete. Of those six days, less than three of them were needed to call all the direct evidence on the trial proper. The case was remanded to April 13 for submissions.

37April 13, 2011 marked the seventh day of the trial. After hearing legal arguments by both sides, the trial judge adjourned the case until May 30, 2011 for judgment.

38On May 30, 2011 the trial judge rendered verdicts of guilty on both counts with written reasons. Crown counsel sought an opportunity to obtain victim impact statements and requested the production of presentence report (PSR). Mr. Verbeek agreed to a PSR.

39The trial judge offered July 25, 26, or 28 2011 to conduct the sentencing hearing. Crown counsel was off that week and asked for a later date. Mr. Verbeek was not called upon to make submissions regarding the July dates. The trial judge then offered August 10, which was agreeable to the defence, however Crown counsel stated that was an inconvenient date and sought another date. Again, Mr. Verbeek was not called upon to make submissions regarding his availability on August 10. The next date offered by the trial judge was August 15, 2011 which both parties agreed to.

40The time between the first trial date of March 24, 2010 and the verdicts on May 30, 2011 was 432 days or 14¼ months.

2.3: Judgment Date to Sentencing Date: May 30, 2011 to August 23, 2012

41After being found guilty of both charges on May 30, 2011, the Defendant's case was adjourned to August 15, 2011 for sentencing. The delay was required to accommodate the production of a PSR and obtain victim impact statements. It is customary for a PSR to take two months to prepare.

42On August 15, the PSR and victim impact statements were complete. The defence was not prepared to proceed and sought to adjourn the sentencing to consider getting a psychiatric assessment of the Defendant. At the request of Mr. Verbeek the case was remanded to September 8, 2011.

43On September 8, 2011 the matter was postponed because Mr. Verbeek had mis-diarized the case and he was out of the country. After the Defendant told the trial judge that the assessment was being processed the case was adjourned to September 15, 2011.

44On September 15, 2011 Mr. Verbeek advised the trial judge that a psychiatric report from Dr. Julian Gojer was expected to be ready sometime in January 2012. The trial judge was concerned that Crown counsel may want to cross-examine the psychiatrist but that decision could not be made until the defence had disclosed the report. At the suggestion of the trial judge the case was adjourned to December 8, 2011 for a status update. Both parties agreed to this date.

45On December 8, 2011 Mr. Verbeek told the trial judge that the psychiatric report would be done by mid-January, 2012. With everyone's agreement the matters was remanded to January 23, 2012 for the purpose of setting a date for sentencing.

46On January 23, 2012 the Defendant appeared without Mr. Verbeek, but he gave Crown counsel a letter from his new lawyer, James Fleming, who was not present at the time. Ms. Ward told the trial judge that she anticipated being given an report and that she was likely going to want to cross-examine Dr. Gojer. She stated that it was necessary to have the doctor's dates of availability before scheduling a sentencing date. After Ms. Ward called Mr. Fleming during a break, the trial judge was told that defence counsel was out of the country between January 30 and February 16, with the earliest available date to appear on this matter being February 21. The matter was adjourned to March 7, 2012 with an expectation being expressed by the trial judge that on the next date the parties would be ready to move the case forward.

47On March 7, 2012 Mr. Fleming appeared as counsel for the Defendant. Mr. Fleming told the trial judge that on January 29, 2012 he sent Ms. Ward a copy of Dr. Gojer's report. He also said that on March 7 Ms. Ward requested the raw data and notes made by the doctor in preparing his report. Mr. Fleming advised the trial judge that Dr. Gojer was not available during the entire month of May. Ms. Ward stated that Dr. Gojer was available three days in April but Mr. Fleming's availability on those dates was uncertain. Ms. Ward proposed a day in June to cross-examine Dr. Gojer and added that while it was unlikely she would seek to call her own expert, she might have to request a further date for that purpose. Many submissions were made about setting future dates to deal with the sentencing. At one point, Mr. Fleming told the trial judge that although he was trying to move things along as quickly as possible "11(b) is never going to be in issue in this case." After exhaustive discussions between counsel and with the trial judge, all parties agreed to deal with the sentencing on August 23, 2012.

48On August 23, 2012 Dr. Gojer testified, after which counsel for both sides made lengthy and comprehensive submissions regarding sentence. The trial judge passed his sentence and the trial was finally completed that day.

49The time between the verdicts on May 30, 2011 and the sentencing on August 23, 2012 was 451 days or 14¾ months. The time between the first day of trial and the sentencing date was 29 months.

2.4: Sentencing Date to Completion of Summary Conviction Appeal: August 23, 2012 to January 6, 2015

50The Defendant appealed his convictions and he was released on a recognizance of bail on August 24, 2012 after a contested bail hearing in Superior Court.

51Mr. Timothy Breen was appellate counsel for the Defendant. Mr. Breen began to perfect the summary conviction appeal in earnest during the spring of 2013. By that time, the grounds for appeal had been sharpened into clear focus on three issues: (1) a violation by Crown counsel of the Defendant's wife's privileged communications with her husband; (2) ineffective representation by Mr. Verbeek; and (3) that the trial judge erred in allowing the Crown's similar fact evidence. Of these three issues, the ground of ineffective counsel took the longest to perfect and deal with.

52Mr. Breen's efforts to speak with Mr. Verbeek about his handling of the case were frustrated by Mr. Verbeek's reticence to participate. On May 1, 2013 Mr. Breen wrote to Ms. Ward wherein he stipulated that effectiveness of defence counsel at trial would be an issue. Mr. Breen requested that Crown counsel be assigned to the matter and he also requested a statement from Ms. Ward about the circumstances surrounding the Defendant's apology letter sent by Mr. Verbeek. On May 21, 2013 Ms. Ward wrote to Mr. Breen enclosing correspondence between her and Mr. Verbeek about the letter. She also wrote that Crown counsel would be assigned in due course. Ms. Monica MacKenzie was assigned to deal with the matter on behalf of the Crown.

53On May 31, 2013 Mr. Breen wrote to Mr. MacKinnon, Crown Attorney for the Region of Halton, requesting specific information regarding resolution discussions Mr. Verbeek had with both Mr. Coppolino and Ms. Ward. Ms. MacKenzie's position on the matter was that statements from the involved Crown counsel were premature until all efforts to secure information from Mr. Verbeek had been exhausted. However, Ms. MacKenzie did advise Mr. Breen that no resolution discussions had taken place between Ms. Ward and Mr. Verbeek.

54The appeal was managed by Mr. Justice Durno who agreed that there was no need for any Crown counsel to give evidence until Mr. Breen had exhausted his efforts with Mr. Verbeek. Mr. Breen abided by Justice Durno's direction and at the appeal no Crown counsel were required to provide evidence. However, after Mr. Verbeek at testified at the appeal, Mr. Breen made a written request in July, 2014 to Ms. MacKenzie that she provide him with a statement from Ms. Ward. Within a reasonable time, the statement was made and delivered. In late October 2014, Breen asked Ms. MacKenzie to have Ms. Ward swear an Affidavit which was identical to her earlier statement. This request was promptly fulfilled.

55The summary conviction appeal was argued before Mr. Justice Murray. He allowed the appeal for written reasons released on December 16, 2014. In those reasons, Justice Murray found that during the cross-examination of the Defendant's wife Ms. Ward had violated the witness's spousal communication privilege and that the trial judge failed in his duty to address the issue when it arose. He also found that the trial judge erred in allowing the Crown's similar fact evidence application. The Summary Conviction Appeal Justice found that both errors required a new trial. With respect to the issue of ineffectiveness of counsel, Justice Murray held that he was not prepared to find that Mr. Verbeek was incompetent.

56Having allowed the appeal, Justice Murray remitted to matter back to Provincial Court on January 6, 2015 to set a date for a retrial.

57The time for the summary conviction appeal and its return to for Provincial Court for another trial (August 23, 2012 to January 6, 2015) was 866 days or 28½ months.

2.6: First Appearance after Appeal to Re-Trial Dates: January 6, 2015 to March 18, 2016

58On January 6, 2015 Mr. Fleming appeared in Provincial Assignment Court. The matter was adjourned to January 21, 2015 to permit the Crown time to consider appealing the Summary Conviction Appeal. The Crown did not file an appeal and the matter continued on track for a retrial.

59On January 21, 2015 Mr. Fleming appeared on behalf of the Defendant and set a JPT for March 6, 2015.

60On March 6, 2015 a JPT was held during which a couple of issues were raised that Mr. Fleming had to discuss with the Defendant. Mr. Fleming was not available for the next four weeks. As a result, the matter was postponed until April 22, 2015 to continue the JPT.

61The JPT continued on April 22, 2015. At that time a number of dates were booked: June 26 for the JPT to continue, October 26, 27 and 28 for the Charter Applications, and March 14, 15, 16, 17 and 18, 2016 for a five day trial if the Applications were dismissed. The trial dates set were 11 months into the future. The record is silent on (a) what earlier court dates, if any, were available to the court and (b) what efforts were made by the Crown to expedite the retrial.

62On June 26, 2015 the JPT continued. At that time the JPT Judge told counsel that five days for trial were available in Hamilton from December 14 to 18. Everyone agreed to hold on to the dates already fixed in March, 2016 but the lawyers would speak to the trial coordinator and return on September 11, 2015 to continue the JPT.

63On September 11, 2015 the matter was back in court. No transcript was made available for this Application, but it is plain that the December, 2015 trial dates were not accepted by one or both of the parties. No reason was given for the failure to accept these dates. The March, 2016 dates originally booked in April, 2015 were not disturbed.

64During the hearing of these Charter Applications, I was told the following: (1) the Crown will not seek to make a similar fact application; (2) the Crown will not seek to use the Defendant's apology letter in any way; (3) the Defendant's wife is not a witness; and (4) the Defendant will admit that he touched the complainant, but does not admit any sexual purpose. I asked both counsel why five days were set in light of these submissions. Mr. Fleming said that he never thought it should take that long, but he could not tell me why he agreed to five days. Ms. Kinsella said she was not the assigned trial Crown counsel. When I asked her who the trial Crown was, she said no one had yet been assigned. Given that the trial had started so that these Applications could be heard, her reply was disheartening to me and yet consistent with the general approach taken by the Crown throughout this case.

65The time between the return to Provincial Court on January 6, 2015 to the last of the five trials dates being March 18, 2016 is 14½ months.

3.0: ISSUES AND ANALYSIS

3.1: Was the Defendant's right under s.11(b) of the Charter breached?

3.1.1: Positions of the Parties

66The Defendant's essential submission is that this is a simple case that was made unnecessarily complicated by acts of the Crown. The Defendant is charged with touching his niece's crotch for a sexual purpose. The Defendant has always admitted to touching her crotch, but denies it was with any felonious intent. The Applicant submits that while the Crown was entitled to bring a similar fact application, the decision to do so was (in their words) "utter overkill" given the defence admissions. They submit that the decision to bring a similar fact application caused a cascading effect by making the trial much longer than it needed to be. The Applicant submits that the Crown bears the responsibility for delays caused by bringing the similar fact application and for any delay caused by the issue being overturned on appeal. The Applicant submits that by their nature, summary conviction trials should be clean, tidy, and short. He urges me to find that the actions of the Crown turned this concept on its head. The Applicant further submits that he has been significantly prejudiced – both specifically and generally - by the overall delay.

67The respondent Crown submits that despite the overall length of time, the Defendant's right to be tried within a reasonable time has not been breached. They submit that there were significant explicit and implicit waivers of delay by the defence. They submit that none of the appellate delay can be considered. They submit that there was substantial neutral time and that the institutional delay was reasonable. They submit that the actions of the Crown had only a minimal impact on the overall delay. The Crown submits that in the circumstances there was no breach, and if there was the Defendant has not suffered any material prejudice.

3.1.2: Applicable Legal Principles

68All persons enjoy the right to be tried within a reasonable time as enshrined in section 11(b) of the Charter. It is presumed that the state has respected that right and the burden is on the Applicant to establish on a balance of a probabilities that he was not tried within a reasonable time: R. v. Morin (1992), 1992 CanLII 89 (SCC), 71 C.C.C. (3d) 1 (S.C.C.).

69The "11(b) clock" starts running once the Information is sworn. R. v. Kalanj, 1989 CanLII 63 (SCC), [1989] 1 S.C.R. 1594 (S.C.C.) at p. 1607.

70There is no cut-off or stale date at which the length of the trial process becomes automatically unreasonable. The determination of whether a delay has been unreasonable requires an assessment of the entire time from the time of the charge to the end of the trial: R. v. Allen (1997), 1996 CanLII 4011 (ON CA), 110 C.C.C. (3d) 331 (Ont. C.A.), affirmed 1997 CanLII 331 (SCC), 119 C.C.C. (3d) 1 (S.C.C.); R. v. Morin, at ¶ 32 – 36.

71Some delay in bringing a matter to trial is inevitable. In assessing whether the entire time is unreasonable, courts must balance a myriad of factors identified by the Supreme Court in Morin. Those factors are:

(a) The length of the delay;

(b) The waiver of any delay by the Applicant;

(c) The reasons for the delay, including:

(i.) The inherent time requirements of the case;

(ii.) The actions of the Accused/Applicant;

(iii.) The actions of the Crown including the police;

(iv.) Limits on institutional resources; and

(v.) Other reasons for delay; and

(d) Prejudice to the Applicant caused by the delay.

72With respect to the concept of "inherent time requirements" it encompasses a number of aspects including:

(a) the intake period of the case: R. v. Lahiry, 2011 ONSC 6780 (CanLII), [2011] O.J. No. 5071 (S.C.J.) at ¶ 27 – 30;

(b) the court time required to try the case: R. v Tran, 2012 ONCA 18 (CanLII), [2012] O.J. No. 83 (C.A.) at ¶ 55; R. v. Purewal, [2014] O.J. No. 2824 (S.C.J.) at ¶ 93 – 94;

(c) adjournments required to find additional court time to try the case when the initial time estimates prove inaccurate: R. v. Allen; R. v. Qureshi, 2004 CanLII 40657 (ON CA), [2004] O.J. No. 4711 (C.A.);

(d) the complexity of the case: R. v. Purewal, at ¶ 97 – 99;

(e) the need for a JPT: R. v Tran, at ¶ 33 – 37; R. v. Emanuel, 2012 ONSC 1132 (CanLII), [2012] O.J. No. 709 (S.C.J.) at ¶ 16, 20-21; R. v. Nguyen, 2013 ONCA 169 (CanLII), [2013] O.J. No. 1243 (C.A.) at ¶ 54; R. v. Konstantakos, 2014 ONCA 21 (CanLII), [2014] O.J. No. 156 (C.A.); and

(f) a reasonable time to prepare for the hearing: R. v. M.(N.N.) (2006), 2006 CanLII 14957 (ON CA), 209 C.C.C. (3d) 436 (Ont. C.A.); R. v. Tran, at ¶ 32.

73The inherent time requirements of a case are considered neutral in the 11(b) analysis and are not included in systemic delay: R. v. Ferguson, 2005 CanLII 28538 (ON SC), [2005] O.J. No. 3442 (S.C.J.) at ¶ 140–149; R. v. Shyshkin, [2007] O.J. No. 1821 (S.C.J.).

74Scheduling of trial time requires reasonable availability and reasonable cooperation; it does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability: R. v. Godin, 2009 SCC 26 (CanLII), [2009] S.C.J. No. 26 (S.C.C.). A reasonable allowance for the schedule of counsel must be made thus counsel are obliged to provide the court with their earliest available dates, so that, if need be, some accurate measure of institutional delay can be undertaken: R. v. Duhamel, 2012 ONSC 6448 (CanLII), [2012] O.J. No. 5392 (S.C.J.) at ¶ 47. There is no breach of s. 11(b) when the court offers a trial date within a reasonable time, but the accused refuses the offer and delays the proceeding further. Where a court offers multiple dates over a period of months, the accused is expected to accept a new date within a narrow range of time: R. v. Amyotte, [2009] O.J. No. 5122 (S.C.J.). Conversely, there will be a breach of 11(b) if the court offers only one or a very few dates.

75Section 11(b) of the Charter does not apply to delay in respect of an appeal from conviction by the Accused or from an acquittal or stay by the Crown: R. v. Potvin, 1993 CanLII 113 (SCC), [1993] S.C.J. No. 63 (S.C.C.); R. v. McDonald, 2015 ONCA 791 (CanLII), [2015] O.J. No. 6058 (C.A.).

76Where a matter has returned for a retrial, either because of an appeal or a mistrial, it is incumbent upon the justice system, including the Crown, to do everything reasonable to expedite the fresh trial: R. v. Yakymiw, [1993] O.J. No. 2631 (C.A); R. v. Satkunananthan, 2001 CanLII 24061 (ON CA), [2001] O.J. No. 1019 (C.A.); R. v. Wilson, [2007] O.J. No. 4504 (S.C.J.).

77The guideline for bringing a "straightforward" matter to trial in Ontario Court is eight to nine months of institutional delay: R. v. Meisner, [2003] O.J. No. 1948 (S.C.J.) affirmed 2004 CanLII 30221 (ON CA), [2004] O.J. No. 3812 (C.A.); R. v. Rego, 2005 CanLII 40718 (ON CA), [2005] O.J. No. 4768 (C.A.); R. v. Reid, [2005] O.J. No. 5618 (S.C.J.). In Reid, Durno J stated that if the matter is somewhat more than a straightforward case, it may extend the guideline to 8 to 10 months of institutional delay. In R. v. Purewal, [2014] O.J. No. 2824 (S.C.J.) at ¶ 71, Durno J reiterated that the tolerable period of institutional delay for straightforward cases in the Ontario Court of Justice is at the low end of the eight to ten months. Tolerable institutional delay for more complex cases will be in the higher end of this range.

78A guideline is neither a bright line nor a hard-and-fast rule: R. v. Amyotte, supra; R. v. Ratneswaran, [2013] O.J. No. 5037 (S.C.J.). Section 11(b) Charter applications must be assessed on a case-by-case basis as opposed to applying the guidelines as though they were legislated limitation periods. A deviation of several months in either direction from the guidelines can be justified by the presence or absence of prejudice: Morin, supra at ¶28; R. v. Kovacs - Tatar, 2004 CanLII 42923 (ON CA), [2004] O.J. No. 4756 (C.A.); R. v. Apolinario, [2007] O.J. No. 4788 (S.C.J.) at ¶ 138 – 140. Where the delay is on the edge of what is constitutionally tolerable, the issue of prejudice will be important to the outcome: R. v. Campagnaro, [2005] O.J. No. 4880 (C.A.).

79Section 11(b) of the Charter is designed to guard against prejudicing a person's rights to (i) liberty, (ii) security of the person, and (iii) to make full answer and defence: R. v. Godin, 2009 SCC 26 (CanLII), [2009] S.C.J. No. 26 (S.C.C.). In the case at bar, it is only the second and third rights that must be assessed given that the Applicant is out of custody.

80Prejudice to an Applicant can be inferred the longer the overall delay. Delay, in and of itself, can be expected to have a detrimental effect on a fair trial: R. v. Godin, supra; R. v. Brace (2010), 2010 ONCA 689 (CanLII), 104 O.R. (3d) 32 (C.A.). However, prejudice will not usually be inferred unless the delay is "substantially longer than can be justified on any acceptable basis": R. v. Smith, 1989 CanLII 12 (SCC), [1989] 2 S.C.R. 1120 at p. 1122; R. v. Lahiry at ¶ 147. Moreover, prejudice which results from the inherent time requirements of the case or the actions of the accused is to be accorded no weight: R. v. Ignagni, 2013 ONSC 5030 (CanLII), [2013] O.J. No. 3531 (S.C.J.) at ¶ 74.

81Conduct of the Applicant which is inconsistent with a desire for a timely trial is something that the court must consider in evaluating the degree of prejudice, if any, suffered by the accused: R. v. Morin, supra, at ¶ 62.

82The focus of the prejudice inquiry is on prejudice caused by the delay, not from being charged: R. v. Rahey (1987), 1987 CanLII 52 (SCC), 33 C.C.C. (3d) 289 (S.C.C.); R. v. Pusic (1996), 1996 CanLII 8215 (ON SC), 30 O.R. (3d) 692 (Gen. Div.); R. v. A.K. and A.V. 2005 CanLII 11389 (ON CA), [2005] O.J. No. 1405 (C.A.) at ¶ 157; R. v. Patel, [2014] O.J. No. 2777 (S.C.J.) at ¶ 93.

83Prejudice to the Applicant must be balanced with society's interest in adjudicating matters on their merits: Morin, supra at ¶ 26 – 30; R. v. Seegmiller, 2004 CanLII 46219 (ON CA), [2004] O.J. No. 5004 (C.A.); R. v. Kporwodu, 2005 CanLII 11389 (ON CA), [2005] O.J. No. 1405 (C.A.). This balancing of the Applicant's interests and society's interest in a trial on the merits is even more important where the charges are serious: R. v. Seegmiller, supra. No one would doubt that sexual offences against children are serious.

3.1.3: Analysis

84The period between the swearing of the Information to setting the original trial date (November 26, 2008 to June 30, 2009) was 7¼ months. For this period, I assign one month as actions of the Crown for not having the brief or primary disclosure on the first appearance and for the time needed to get it ready. I assign one month to actions of the Defendant for seeking unnecessarily long adjournments between appearances. Going over for up to one month at a time was lackadaisical. Lastly, for this period I would describe the remaining 5¼ months as neutral as inherent time requirements including a substantial amount time used towards attempts to resolve the case without a trial.

85The time between setting the trial date on June 30, 2009 to the trial date itself on March 24, 2010 is 8¾ months. One month is deemed neutral as inherent time requirements for trial preparation. The remaining 7¾ months is institutional delay because March 24, 2010 was the first date offered for what the parties at the time accurately described as a simple ¾ day trial. I pause at this point to state that at the JPT in October 2009 it should have been clear to everyone that the original time estimate was inadequate given the number of witnesses each side now predicted calling. Three days for trial seemed more appropriate by the time this matter was pre-tried for the first time. Had the issue of similar fact evidence been revealed and discussed at the JPT, even more trial time would be needed and should have been booked then.

86The time between the beginning of the first trial and the rendering of verdicts (March 24, 2010 to May 30, 2011) was 14¼ months during which eight days were devoted to litigating this case. The decision by the Crown to bring a similar fact application was wholly within its discretion to make. I agree with the Applicant that having made this strategic decision, the Crown must take responsibility for the extra trial time the application consumed, absent any waiver or other actions of the Defendant.

87The Crown's decision turned a simple case into a more complex one. That decision necessitated significantly more time for arguments, rulings, and an additional very lengthy witness. Upon assessing the circumstances it appears that the similar fact application added at least four extra days to the trial. The Crown failed in its undertaking given at the initial JPT to notify the trial coordinator of any material changes to the case. The Crown failed to consider the issue between October 2009 and February 2010 when it would have been possible to book more trial time closer to the scheduled date. It was only three weeks before the trial that the Crown decided to throw a wrench into the time needed to try the case. Accordingly, I assign a delay of 3¾ months in this period due to actions of the Crown.

88There were explicit waivers by the Defendant for the five months between March 24 and August 20, 2010. Mr. Verbeek was ill and could not make the December 1, 2010 trial date. His next available date was not until February 1, 2011. As a result, two months will be assigned to actions of the Defendant. On December 1, 2010 the Defendant provided the court a letter from Mr. Verbeek containing 39 days he was available between February 1 and April 15, 2011. The court failed at that time to offer any dates in February or March, therefore two months delay in this period was caused by limitations on institutional resources. Lastly, I would describe the 1½ months taken by the trial judge to render his judgment on May 30, 2011 as neutral time.

89It took another 14¾ months (May 30, 2011 to August 23, 2012) to sentence the Defendant. Of this time, 7¼ months were caused by actions of the Defendant: one-quarter month due to Mr. Verbeek mis-diarizing one of the court dates, and a further seven months was consumed by the Defendant getting a psychiatric report and to scheduling the doctor. I do not find that the Crown caused any delay during this time period because the decision to seek data from the doctor and to cross-examine him was reasonable. The Defendant expressly waived the 5½ months following March 7, 2012 to the sentencing date when Mr. Fleming took over the case. Lastly, two months to order and prepare a PSR and victim impact statements is neutral because it is part of the inherent time requirements.

90The summary conviction appeal and the return of the case to Provincial Court took 28½ months (August 23, 2012 to January 6, 2015). Given that an appeal from a conviction does not engage section 11(b) Charter rights, I remove this period from the analysis. In the alternative I would describe the cause of the delay for the appeal as "other" using the Morin rubric set out, above.

91The time between the remitting of the case back from Superior Court to the last scheduled day of the second trial is 14½ months. Of this time, I would assign one-half month as actions of the Crown for the time it took to consider an appeal of Justice Murray's reasons. I would label one month as actions of the Defendant because Mr. Fleming was not available for a whole month between March and April. Sometime after the March, 2016 trial dates were fixed, the court offered five days early trial dates in December, 2015. I assign a delay of 8 months caused by limitations on institutional resources between April 22 and December 18, 2015. No deduction for trial preparation was necessary given that it was a retrial. In consideration of the parties not accepting the earlier trial dates, I would assign one month of the time frame of December 2015 to March 2016 as neutral time. Having said that, I assign one month between December to March as institutional delay because the court did not offer any dates in January or February 2016 despite the obvious imperative to expedite the re-trial.

92In summary, I find the causes for delay during the 88 months this case has been in the systems are as follows:

Category	Duration
Waiver	10½ months
Crown Actions	5¼ months
Defence Actions	11¼ months
Neutral	13¾ months
Other/Summary Conviction Appeal	28½ months
Limitations on Institutional Resources	18¾ months
TOTAL	88 months

93As for prejudice, the Defendant suffered a loss of business opportunities and was restricted in his social activities. The Crown argued that the prejudice suffered was connected more with being charged than with any delay, but nevertheless specific prejudice accrued as the first trial went on and on and on.

94The general prejudice suffered by the Defendant has been amplified tremendously by the overall delay (excluding of course the time taken on the appeal) for several reasons. First, the decision of the Crown to bring the similar fact application at the first trial substantially increased the time needed to try the case, no doubt at a significant cost to the Defendant not only in extending the matter beyond his control, but financially as well. The decision by the Crown to alter the trial's landscape was made at the last minute when it was too late to seek contemporaneous extra dates. The Crown should have reviewed the file and made its decision much earlier than it did and certainly they should have dealt with the case closer to the October 2009 JPT to avoid exactly what happened here.

95Second, the judicial system in force at the time in Halton Region failed the parties when it held a JPT after setting a trial date. This was putting the cart before the horse. When the ¾ day trial date was set the lawyers reckoned there would be perhaps three witnesses in total. Months after setting this short trial date they told the JPT judge that the potential witness list had more than doubled and now included possible expert evidence. Instead of confirming the original trial estimate, everyone involved including the court had a duty to re-assess the time needed. I am confident that in October 2009 when the JPT was held it would have been easier at that time to get extra days closer to the March 24, 2010 trial date than it was after the trial started five months later.

96Third, when dealing with the matter after coming back from Superior Court, it would appear that all concerned were operating on a "business-as-usual" basis. There appeared to be no consideration given by the Crown to its duty to expedite the matter. Nothing in the transcripts or the evidence given on this application gave any indication that the Crown was concerned, or even thought, about prioritizing this case for retrial. The court, however, did make efforts to find earlier dates which modestly ameliorates, but does not materially reduce, the extra general prejudice to the Defendant caused by the failure by the judicial system to prioritize the retrial.

97The delay caused by Crown actions together with the delay caused by limitations on institutional resources was an overall delay substantially longer than can be justified on any acceptable basis.

98In assessing whether or not the delay in this case was unreasonable or not, I have taken into account the following:

(a) The actions of both sides contributed to the delay. The Crown decided to add a significant issue at the eleventh hour (when there was ample opportunity to have done so in a timely manner far earlier) thereby causing meaningful and prejudicial delays beyond those times waived by the Defendant. The Applicant took actions that caused further delays and he waived significant periods of time;

(b) Limitations on institutional resources were well beyond the acceptable guidelines recommended in Morin. Eighteen-plus months of delay due to systemic causes are wholly unacceptable in the circumstances;

(c) The Defendant faces serious charges that involves a real public interest to try the case on the merits; and

(d) The prejudice to the Applicant is significant as there is a substantial detrimental impact on the Applicant's fair trial rights and security interests which was made worse by the system taking no steps at the first JPT to address the real time requirements and inadequate steps by the court and the Crown to expedite the case when the matter was sent back for retrial. The Crown's decision to add a major issue shortly prior to the first trial contributed greatly to the prejudice suffered by the Defendant. There was also prejudice caused by the inordinate and unacceptable limits on institutional resources.

Balancing all of the factors set out by the Supreme Court in Morin, and for all the reasons set out herein, I find that the Applicant has established that in all of the circumstances of this case that it is more likely than not that the overall delay in this matter is unreasonable. His application under section 11(b) of the Charter is granted. The remedy is that all charges are hereby judicially stayed.

3.2: Was the Defendant's right under section 7 of the Charter violated?

99As I have already found that the Defendant's section 11(b) Charter right was breached, it is not necessary for me to rule in depth on whether the Defendant's section 7 Charter right was violated. For the following reasons, I find that the Defendant has failed to demonstrate that it is more likely than not that his section 7 Charter right was breached.

100In his submissions, Mr. Fleming concentrated his arguments that the conduct of the Crown together with the sheer length of such a simple matter would scandalize the public and erode the integrity of the judicial system. With respect, I cannot agree. As outlined in my reasons on the 11(b) application, there were a wide range of reasons why this case did not complete in a timely manner. While the fatal causes of delay were actions of the Crown and limitations on institutional resources, the defence did not exactly have the cleanest of hands given the waivers and other actions they took that caused delay. The actions of the Crown, material as they were, did not amount to abusive conduct.

101In the first trial, I cannot describe any action taken by the Crown to be capricious, vexatious, or egregious. The Crown exercised its discretion in a vigorous and complete but ill-timed fashion, the cost of which was to confound the right of the Defendant to be tried within a reasonable time. The Crown on the summary conviction appeal acted appropriately and professionally at all times and was entitled to take a position contrary to that of the appellate. It is significant that the appeal was case managed in the Superior Court by a most able and sage jurist who appears to have agreed with the Crown's position in the ineffective counsel issue, which was the issue that was the most difficult for all and that took the longest to deal with.

102In short, the Defendant has failed to make out a section 7 Charter breach. Even if his section 7 Charter right was violated, this is not the clearest of cases in which the only appropriate remedy would be a judicial stay. Had I been required to impose a remedy, I would have considered making a declaration and/or an order prohibiting the Crown from bringing a similar fact application or from cross-examining the Defendant's wife on spousal communications should she testify.

103The Defendant's section 7 Charter application is dismissed.

4.0: CONCLUSIONS

104For all the reasons set out above, I find that the Defendant's section 7 Charter right was not violated, but I do find that his section 11(b) Charter right was breached and as a remedy, the two criminal charges against G.V.E. are judicially stayed.

Original signed by The Honourable Justice Richard H. K. Schwarzl

Richard H.K. Schwarzl,