COURT OF APPEAL FOR ONTARIO

DATE: 20000425

DOCKET: C30654

CARTHY, CHARRON AND SHARPE JJ.A.

B E T W E E N : )

) Kenneth L. Campbell

HER MAJESTY THE QUEEN ) for the appellant

)

Appellant )

)

and ) Ross Lundy

) for the respondent

KENNETH WILLIAMSON )

)

)

Respondent ) Heard: February 7 and 8, 2000

On appeal from an Order Staying Proceedings of Hawke J., dated

September 9, 1998.

CARTHY J.A.:

[1] This is a Crown appeal from an order staying proceedings

against the respondent on the ground that he had not been tried

within a reasonable time. The incident out of which the charges

arose occurred on June 23, 1996 and the stay order was made on

September 9, 1998 – a period of 26 months. This is a long time

to await trial but, on the other hand, the charges were very

serious – impaired driving causing death, driving with excessive

alcohol in his blood and possession of marijuana.

[2] On June 23, 1996, the respondent was driving his motor

vehicle southbound on Mississauga Rd. when a northbound motor

vehicle being driven by Ryan Bowie made a U turn in front of the

respondent and a violent collision occurred. A passenger in the

Bowie vehicle was thrown to the road and died of her injuries. It

was alleged that both drivers were impaired and that the

respondent was driving without his headlights on.

[3] In a 61-page ruling Hawke J. made the following general

observations by way of conclusion:

But for the allegation that the

defendant’s actions were one of the events

that caused a death, it is a clear case

where the matter would be stayed, as there is

nothing else that is remarkable about the

case. As impaired driving matters go the rest

of the allegations are toward the lower end of

seriousness. Reflecting back on those

allegations there is no evidence of bad

driving. It is alleged that his lights were

off. The blood alcohol readings and indicia of

impairment alleged were both relatively modest.

This case comes down to the

following issue. When the societal interest

component of 11(b) is put into the balance

with all of the circumstances of the case,

does it warrant the denial of a stay of

proceedings?

Society always has a strong

interest in any death that did not result

from natural causes. This is true even

outside of the criminal justice system.

Society’s strong interest in this charge is

reflected in the seriousness given to it in

the Criminal Code. It is clearly a

consequence driven offence. It is

interesting, for example, to compare it to

impaired operation causing bodily harm. This

is a more serious charge than that and the

only required difference between the two

offenses is the consequence.

I am sure that for the family and

friends of Ms. Rodrigues it is very difficult

to hear of the death of their loved one being

put into an academic exercise of balancing of

interests when her passing means so much to

them. However, it is my view, that the

societal interest in having the accused, who

is charged with a serious offence, brought to

trial, does not outweigh the other

circumstances justifying a stay of

proceedings.

To rule otherwise would make a sham

of the guidelines set by the Supreme Court of

Canada. If over twice the upper guideline

for acceptable institutional delay becomes

tolerable then the guideline and the

principles involved in formulating them

become meaningless.

To rule otherwise would allow the

secondary interest, i.e., societal interest

to completely overrule the primary purpose of

section 11(b), which is the protection of the

individual rights of the accused.

Factors Relating to time

[4] The approach of the motions judge in her extensive reasons

was to examine each stage of the proceedings and determine the

reasons for the delay. She found two periods assignable to the

respondent’s conduct – a 4 month intake period while he obtained

legal representation and the 2 months it took to hear the s.11(b)

motion and deliver reasons. This left 21 months attributable to

the Crown, institutional lack of resources and the inheritant

time requirements of the case. Using the upper level of what

should be a reasonable range for the latter, she assigned 10

months and concluded that the remaining 11 months was

unreasonable institutional delay.

[5] The Crown raised a list of concerns as to the motions

judge’s approach to the evidence relating to the cause of

individual periods of delay. I see only one period that is

significant enough to weigh appreciably in the balance of s.11(b)

concerns – the 10 month period between September 27, 1997, a

proposed trial date, and July 20, 1998, the actual start of a

trial (leading to a mistrial).

[6] Some background information is needed to explain how this

delay came about. The respondent was charged with the three

offences immediately after the accident. In September 1996 a new

information was issued charging him jointly with the driver of

the other vehicle, Bowie. This joint charge and the desire of

both accused to obtain a severance lay behind much of the ensuing

delay. In October of 1996 the court fixed June 6, 1997 to hear

the severance motion and set aside ten days in September 1997 as

a target date to deal with either a preliminary or a trial.

Neither accused wanted to elect before knowing the outcome of the

severance motion. Both of these dates were found by Judge Hawke

to be the earliest available. She so concluded from the absence

of any note on the indictment that counsel had turned down an

earlier date. Apparently, that is reflective of the practice in

the Brampton court.

[7] The June 6, 1997 date was lost largely because the defence

was deficient in filing materials. However, no time was really

lost because a new date of July 25th was set for the severance

motion with fixed dates for each side to serve materials. This

was well before the tentative trial date in September.

[8] On July 25th the parties appeared before Judge Budzinski.

The defence material had been handed in on time but, through an

administrative error in the Crown Law Office, had not reached the

assigned Assistant Crown Attorney until the last moment. Thus

she had not filed material and was only able to hand counsel for

the defence the 13 cases she relied on. Bowie’s defence counsel

indicated he would need time to study the case law.

[9] Judge Budzinski observed that the accused were entitled to

an adjournment, that there might be a delay argument down the

road and that it would be in everyone’s interest to have the

judge presiding over the September dates hear the severance

motions, if possible prior to September. If not, then he could

either direct that some of the trial time be used for the

severance motions, or, because it would not be known in advance

whether a trial or trials or a preliminary hearing might follow,

he might simply strike the September date as a prospective trial

date. The latter option would avoid the necessity of the defence

calling witnesses for a trial that might not occur.

[10] Defence counsel suggested that it made sense to strike the

trial date. The Crown stated that she was prepared to argue

today, but would not object to an adjournment and then stated:

An 11(b) issue arising as a result of the motion, perhaps

ultimately being put off to the first date scheduled for

trial, is what concerns me. If there isn’t going to be

an 11(b) issue as a result of counsel’s suggestion that

the motion be dealt with on that date and striking the

trial date, then so be it, but I have grave concerns

about striking the trial date.

Neither defence counsel offered any comment on these remarks.

[11] At this point, counsel went to the trial co-ordinator to see

if Judge Atwood, who was to preside on the September dates was

available for a half-day motion at some earlier time. He was not

and Judge Budzinski thereupon fixed September 30th for the

arraignment and severance motion and left the setting of new

trial dates to await the result of the severance motions.

[12] For reasons that are not significant to this appeal, but

referred to in para. 17 hereof, the severance motion was not

argued in September. It was a given once September was lost as a

trial date that a new one had to be fixed and the earliest date

available as of the beginning of October, 1997, when a date was

first sought, was July 20, 1998.

[13] The argument of the Crown that I now wish to deal with is

that the events of July 25, 1997 caused the 10 month delay from

September 1997 to July 1998 and that this should be ascribed to

the fault of the respondent.

[14] The appellant argues that the respondent waived the loss of

time by indicating support for striking the trial date and for

remaining silent in the face of the reference by the Crown to

s.11(b) concerns.

[15] Judge Hawke did not accept that argument saying:

It is my finding that the Crown has not shown, on a

balance of probabilities, that Mr. Lent waived Mr.

Williamson’s 11(b) rights by what he said on July 25th.

There was no advertence to the act of release and as

outlined above, I believe that to infer a release from

the comments is to take the comments out of context.

[16] The motions judge then criticized the Crown for failure to

recognize on July 25th that substantial time was being lost and

for failing to approach one of the judges to give this case

special attention, rather than waiting until October to approach

the trial co-ordinator for a trial date.

[17] Another complicating factor referred to by Judge Hawke was

that the defence wanted the severance motion before election,

while the Crown was arguing that only the trial judge had

jurisdiction. The Crown was apparently surprised to find that

Judge Budzinski was not the scheduled trial judge, thus

presenting another reason that the motion could not proceed on

July 25th . In fact, the reason the severance motion was not

dealt with in September was that Judge Atwood ruled that only the

trial judge had jurisdiction to do so.

[18] I defer to Judge Hawke’s reasoning and conclusion on this

issue. Silence in the face of a passing observation by the Crown

should not be taken out of the context of an extensive colloquy

and raised to the level of advertant waiver. Moreover, Judge

Hawke has apparent familiarity with the administration of the

court and counsel who appear before it and is in the best

position to recognize tactical steps directed at creating a

s.11(b) defence. She observes in closing:

The record does not show actions by the defendant that

in any way indicate that he is asserting his Charter

right as a sword rather than a shield.

[19] The severance issue was of obvious importance to each

accused in circumstances where each is blamed for a death for

quite independent, if similar, conduct. The stances they were

taking were legitimate and there is no obligation on the defence

to trim the sails in the direction of expedition if that is not

the direction of the best defence. They wanted to elect after

knowing the result of the severance motion and much of the delay

in this prosecution flowed from the outstanding argument of the

Crown that only the trial judge could deal with severance yet the

trial court could not be determined prior to election. This

circumstance could invite manipulation by defence counsel, but

here Judge Hawke found respondent’s counsel to be acting without

guile and it must be remembered that the co-accused was

effectively dictating defence tactics to the extent that he was

raising procedural concerns.

[20] There were a few other incidental points of appeal

concerning the time allocations. I am satisfied that each lacks

merit. The motions court judge was justified in criticizing the

Crown for not taking special steps to expedite proceedings. The

precharge time was short but does not appreciably affect the 11

months excess. The application for a mistrial in July of 1998 (to

be discussed below) was entirely justified. Further, the time

following the mistrial was not counted by Judge Hawke against the

Crown and she might well have done so in that the trial had not

yet begun.

[21] In conclusion, I am satisfied that Judge Hawke properly

assessed and allocated the time between charge and trial and now

move to the issue of prejudice.

Prejudice

[22] The appellant makes the point that Judge Hawke erred in

finding that there was a general presumption of prejudice from a

long delay and that this error infected her entire analysis. I

agree that the reasons of Sopinka J. in R. v. Morin (1992), 71

C.C.C. (3d) 1 (S.C.C.) make it clear that the onus is always upon

the defence to establish prejudice and that lengthy delay only

permits an inference, not a presumption. Having misstated the

initial approach Judge Hawke reviewed the evidence and then found

actual prejudice “in addition to an inference of prejudice from

this unreasonable delay.” It is an open question whether she left

behind her initial use of “presumption” and converted to

“inference” in the course of her reasons.

[23] That being said, in order to respond to other matters raised

by the Crown, it is necessary to review the evidence and,

particularly, the events of July 1998. On July 20th , the date

set for trial, the co-accused Bowie pled guilty and the severance

issue disappeared. The respondent was arraigned, elected trial

in Provincial Court and the trial opened. The respondent moved

for a stay for delay in reaching the trial and Judge Budzinski

heard argument and then reserved his ruling pending completion of

the trial. On the 5th day of trial the Crown wanted to call

evidence of inculpatory statements made at the time of arrest and

a voir dire was commenced to determine whether the statement was

voluntary. The first witness was an officer who had taken

custody of the respondent at the scene of the accident. She

mentioned that a security guard had handcuffed the respondent

prior to her arrival and delivered him to her. There was no

mention of this in her notes and it was a revelation to the Crown

and the respondent. The defence then wished to argue that

statements and evidence gathered after this “arrest” should be

excluded. This led to the police finding the security guard,

Kenneth Willett, and bringing him forward to give evidence on the

voir dire. His testimony was that he was securing nearby

premises when he heard the collision, ran with his partner to the

scene, identified the respondent as the driver of one of the

vehicles, smelled alcohol on his breath, ran after him when he

ran away, handcuffed him and told him he was under arrest for

impaired driving. He then handed him over to the arriving

officers. He gave his name and phone number to one officer but

no one contacted him until the weekend prior to giving evidence.

This led to knowledge that Willett’s father, who owned the

security firm, had seen the collision and would state that the

respondent’s headlights were not on.

[24] The Crown indicated its intention to call this new evidence

at the trial proper, whereupon the respondent moved for a stay

pursuant to s.7 and s.24 of the Charter. In the alternative he

sought exclusion of the new evidence and in the further

alternative a new trial. Judge Budzinski found that the problem

arose from an oversight on the part of the police and that a stay

was not justified. He refused to exclude the new evidence,

favouring the community interest in a trial on the full merits.

He felt it to be unfair to the defence to recall witnesses and

seek to mould a different defence around this very significant

new evidence. He therefore declared a mistrial, having arranged

that the new trial commence the next day before Judge Hawke.

[25] At the opening of the new trial the s.11(b) motion was made

and argued on days that were available through to August 27. No

evidence was called, Judge Hawke reserved judgment and delivered

reasons on September 9, 1998.

[26] All of this narrative is background to a consideration of

prejudice arising from the delay of trial.

[27] The appellant concedes some prejudice arising from the bail

restrictions, but suggests these are minimal. In fact the

restrictions were quite severe, no doubt because of the

seriousness of the offences and perhaps because of the

respondent’s background. He reported once a week to the police

(100 times). Other conditions included abstinence from alcohol,

prohibition from being on licensed premises; curfew from 11:00

p.m. to 6:00 a.m.; and prohibition from driving or possessing a

key to or even sitting in the front seat of a motor vehicle. The

respondent did not give evidence and apparently managed to live

with these restrictions, but they remain as evidencing not

inconsequential prejudice.

[28] The Crown contends that Judge Hawke not only reversed the

onus of proof by speaking of a presumption of prejudice, but also

that she erred in considering the late discovery of the two eye

witnesses as related to prejudice. It is contended that s.11(b)

is not concerned with prejudice of this type which did not arise

from the delay. Rather it is a factor to consider under s.7 and

was dealt with by Judge Budzinski.

[29] I disagree. The fair trial interests of the accused is an

object of both s.7 and s.11(b). Once trial delay is sufficient

to require scrutiny fair trial concerns could not be adequately

assessed if prejudice of any type related to the passage of time

is excluded from consideration. All relevant factors must be

brought together and form the basis of the ultimate decision as

to breach and remedy. A fact relevant to s.7 concerns may also

be a fact for consideration under s.11(b).

[30] The s.11(b) time concern in this case, using the allocations

of Judge Hawke, is framed by an expectancy of a trial 14 months

after the charge (4 months input time plus the guideline of 10

months for institutional delay). This means that the two new

witnesses would have been discovered 1 year before they actually

came to light. We need not make assumptions as to time wearing

down memory, particularly when unaided by contemporaneous notes

or memoranda, because in this case we have the actual evidence of

Kenneth Willett. He is very clear on certain matters but

interspersed in his evidence are comments such as:

Q. When you arrived can you describe

the, the vehicles that you saw that you believed

were in the accident?

A. Again I don’t, I don’t really

recall. I know that … I believe one of the

cars was a blue vehicle, a smaller vehicle. I

believe it was maybe a Chevette. It was a

hatchback of some kind, I recall, I believe.

And … And a white larger vehicle. The make

I, I don’t, I don’t recall.

Q. And how would you describe

their distance relative to each other? Okay.

I’m not asking you to guess anything sir.

A. No. I’m just trying to

recall. It’s been a long time, and I haven’t

read any notes to refresh my memory. So …

Q. Okay.

A. …I don’t have anything to go by.

Q. Well, what we’re aware of,

sir, is a statement you gave to the police

yesterday. Is that what you meant, meant

when you said notes.

A. No. It wasn’t yesterday. It

was Friday.

Q. Well, Friday, sir.

A. And as I said, I’m not

guessing. I’m only hesitating to give you

the right answer.

Q. Okay. Well I don’t want you

to guess, sir. If you don’t know the answer,

say you don’t know it, but don’t guess.

A. Well as I said, I’m not

guessing. I’m just trying to recall. Yeah,

I’d probably say I don’t recall.

Q. Okay.

A. It’s been too long.

[31] We cannot know to what extent his memory was altered by the

passage of 12 months, but it can safely be inferred that it would

have been better. Authorities such as R. v. Morin (supra) and R.

v. Rahey (1987), 1987 CanLII 52 (SCC), 33 C.C.C. (3d) 289 (S.C.C.) speak to the

importance of holding a criminal trial while memories are fresh

and the inference that may be drawn that time will dull memories.

The evidence quoted above offers reality, if that was needed, to

the inference.

[32] Judge Hawke also considered as a third point the submission

that the respondent always wanted a trial in Provincial Court and

was effectively dragged along by the co-accused. She concluded

that there was no conduct by the defendant after October 1996 to

negative prejudice.

[33] Her Honour concluded her reasons on prejudice as follows:

Looking at all of the above, collectively,

the inferred prejudice and the actual prejudice

suggested in points one and two, and the lack of

responsibility of the defendant outlined in point

three, it is my view that it is appropriate to find

that there is prejudice in this case and that it was

incurred because of delay. The degree of prejudice

is neither de minimis nor gross. It lies somewhere

close to the middle of these two extremes. [Emphasis

added.]

The presence of prejudice

reinforces the application of the guidelines

established for institutional delay.

[34] While Judge Hawke started off speaking of a presumption of

prejudice arising from the passage of time, she ends in this

passage inferring that prejudice and finding actual prejudice.

Her points one and two coincide with the issues I have dealt with

and her findings are roughly coincident with my observations.

Conclusion

[35] Overall, Judge Hawke appears to me in her lengthy reasons to

be conscientiously examining the conduct of her court through

careful analysis of what the Supreme Court has said it expects

and a meticulous examination of each step in this proceeding. She

has concluded that the system didn’t do its job, the respondent

was prejudiced and that society’s interest in the due

administration of justice through prosecution of offenders is

offset by the respondent’s interest, and through him society as a

whole, in a fair trial in a reasonable time.

[36] That balance is always a difficult one and I empathize with

the array of family members of the victim who attended the

hearing of this appeal. In so observing, I am also impressed

with the care and concern expressed by Judge Hawke in balancing

the factors. This was not a case of arriving at a decision and

then justifying it. She looked at every facet of concern,

including the seriousness of the offence, the victim’s family,

the conduct of the defence lawyer, the actions of the Crown and

the administration of the Brampton court. Her reasons reflect a

sincere and thorough balancing of societal interests.

[37] Notwithstanding what I view as a passing error that did not

impact on the conclusion, I would defer to Judge Hawke’s

conclusion and, on my own analysis of the record, agree with her.

The appeal should be dismissed.

Released: April 25, 2000

“J.J. Carthy J.A.”

“I agree Louise Charron J.A.”

“ I agree Robert J. Sharpe J.A.”