COURT OF APPEAL FOR ONTARIO

DATE: 20000613

DOCKET: C28606

McMURTRY C.J.O., DOHERTY and ROSENBERG JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Respondent

• and -

WILLIAM BATTE

Appellant

Keith E. Wright, for the appellant

Robert Kelly, for the respondent

Heard: November 25 and 26, 1999

On appeal from his conviction by Mr. Justice Dunn, sitting with a

jury, on August 1, 1997 and from the sentence imposed on November

7, 1997

ROSENBERG J.A.:

[1] This is the second of two appeals by William Batte from his

convictions for various sexual offences at two separate trials.

The two trials resulted from a severance order. This appeal

concerns the appellant’s conviction for indecent assault by a

court composed of Dunn J. and a jury at Brampton on August 1,

1997. This offence was alleged to have occurred approximately

twenty years earlier between 1977 and 1979. The charge was laid

on October 15, 1993 but did not finally come to trial until July

28, 1997, almost four years later. The trial judge dismissed an

application to stay the proceedings for violation of the

appellant’s right to a trial within a reasonable time as

guaranteed by s. 11(b) of the Canadian Charter of Rights and

Freedoms. In my view, he erred and accordingly I would allow the

appeal, order a new trial and stay the proceedings pursuant to s.

24(1) of the Charter.

[2] Notwithstanding my conclusion on the s. 11(b) issue, I

intend to deal with two of the other grounds of appeal; the

validity of the indictment and the trial judge’s ruling on the

Corbett application. I will deal with the former because, if the

appellant is correct, the proceedings were a nullity. I will

deal with the Corbett application because it raises an issue that

recurs with some frequency, namely the prosecution’s attempt to

justify cross-examination on a criminal record because of an

attack on the character of the Crown witnesses.

THE FACTS

The facts of the offence

[3] The complainant N. and her parents were neighbours of the

appellant. The appellant operated a farm on which he kept

horses. In August 1977, when the complainant was just 12 years

of age, she and her parents went to a corn roast at the

appellant’s farm. During the gathering, the complainant’s parents

introduced her to the appellant. By the end of the evening, they

had all agreed that the complainant would clean the appellant's

house and he would teach her about horses. The complainant was

infatuated with horses.

[4] According to the complainant, the sexual assaults began on

the very first day that she attended at the farm to start her new

job. When she had finished cleaning, she went into the kitchen.

The appellant followed her and crowded her against the wall. He

kissed her neck and put his hands up her top and felt her

breasts, which had not yet begun to develop. He kept telling her

how pretty she was, how much fun they were going to have with the

horses, and how much she would learn. This went on for about ten

minutes. The appellant told her that what they were doing was

“okay” but that she should not tell anyone.

[5] A few days later, the complainant returned. She thought, or

at least hoped, that the appellant would not touch her again.

Also, there was "this big carrot being dangled in front of

[her]," namely, the horses. During the next two years, she went

to the farm once or twice a week, usually on weekends but

sometimes on weekday evenings. According to the complainant, the

sexual touching occurred virtually every time she was at the

farm, so much so that at one point she thought she was his

girlfriend.

[6] The sexual assaults usually took place in the hallway. The

appellant would approach the complainant while she was cleaning.

He would back her up against the wall and rub his penis against

her groin. Sometimes, he used his knee to lift her off the

ground because she was so much shorter than him. Her legs would

dangle in the air as he squeezed and rubbed her buttocks. He

would kiss her and put his hands all over her. He touched her

face and neck, her shoulders and chest, and her groin area, both

over and under her clothes. After 10 or 15 minutes he would

ejaculate. Then he would leave and have a shower. The

complainant did not understand ejaculation. She thought he had

gone to the bathroom.

[7] The appellant usually walked around the house wearing only

boxer shorts. At first, his penis would be inside his shorts as

he rubbed against the complainant in the hallway but later he

started exposing his penis to her. He would always ask her if he

could put his penis inside her and if she would touch it. The

appellant would also take the complainant’s hand and have her rub

his exposed penis. The complainant testified that she always

asked the appellant not to “do this” but he would reassure her

and tell her it was okay.

[8] Sometimes, the appellant would sexually assault the

complainant twice in one visit. When they were in the barn, he

would lie her down on a bed of straw and rub against her and do

the same things he did in the hallway.

[9] The last incident occurred in the fall of 1979, when the

complainant was 14 years old. After arriving at the farm, she

went to the appellant's bedroom to let him know she was there.

When she opened the door, he was standing there naked. He pushed

her onto the bed and began kissing and rubbing her. He told her

how pretty she was and how much he liked her, but he was a lot

more forceful than usual. Somehow the complainant’s shorts came

off and the appellant was very insistent about putting his penis

inside her. He told her he would not get her pregnant, but the

complainant did not understand what that meant. The assault

lasted 20 to 25 minutes. During this time, the complainant kept

saying “no”. Later, as she was leaving, the appellant was

screaming at her from the window, saying that if she told anyone

he would get her and that no one would believe her anyway. In

the course of this incident, the complainant urinated in her

panties. When she returned home, she hid the panties in her

cupboard.

[10] The complainant went straight home and briefly “tested the

waters” in terms of telling her parents about the abuse. Her

step-father's reaction was one of disbelief that she could say

such things about one of his friends. This confirmed for the

complainant that the appellant was right when he said no one

would believe her, so she decided not to say anything more.

However, the complainant never went back to the appellant’s farm.

[11] These allegations came to light when the police called the

complainant in September 1993 and asked her to give a statement.

[12] The complainant’s mother, Mrs. N., testified for the Crown.

She confirmed that the complainant worked for the appellant for a

period of time. She testified that at one point the complainant

told her that she wanted to quit working for the appellant. Mrs.

N. took this as a sign that the complainant was lazy and

rebellious and told her that she must follow through with her

commitment. She also testified that around 1979, the complainant

underwent a very pronounced change in personality. She became

unapproachable, dressed differently and totally lost interest in

horses. Around this time, Mrs. N. found a pair of soiled panties

hidden in the complainant’s closet. The complainant was still

working for the appellant at this time.

[13] Mrs. N. also testified about several trips to the Bahamas

that she and her daughter took with the appellant and some other

persons from the neighbourhood. She denied a suggestion from

defence counsel that on the 1978 trip she went to the appellant’s

room and tried to proposition him.

[14] The appellant testified and gave extensive evidence about

his farm, his contact with the complainant and the trips to the

Bahamas. In short, he denied any sexual assault of the

complainant and denied spending very much time at all with her.

He testified that after the second weekend it became clear that

the complainant was not doing a good job and did not want to

clean for him. They agreed that she could continue to come

around and look at the horses and the appellant would not tell

her mother. He also testified that on the 1978 trip to the

Bahamas the complainant’s mother came to his room around

midnight, jumped into his bed and propositioned him. The

appellant testified that he repulsed her advances and eventually

was able to make her leave. She was very angry over this

incident. There was no further social contact with the N. family

after this trip.

The procedural history

[15] The procedural history in this appeal is interwoven with the

history of the proceedings in the other appeal. On May 21, 1993,

two informations were laid charging the appellant with various

sexual offences involving the two D. sisters. The appellant’s

conviction on these charges forms the basis of the companion

appeal. A preliminary hearing was scheduled on those charges for

October 18, 1993.

[16] On October 15, 1993, an information was sworn charging the

appellant with common assault and gross indecency over the period

of August and September 1977 in relation to the complainant N.

This information was before the court on October 18 but was

adjourned to November 24, 1993 for a preliminary inquiry. The

preliminary inquiry on the charges involving the D. sisters was

completed on October 19, 1993 and the appellant was ordered to

stand trial. On November 24, 1993, the appellant was ordered to

stand trial on the two counts involving N. (The appellant raises

an issue with respect to the validity of that order. I will deal

with that issue below.)

[17] On November 29, 1993, the Crown Attorney presented a nine-

count indictment containing the charges from both preliminary

inquiries. At that time, a pre-trial was scheduled for December

17, 1993. Following the pre-trial, the appellant was remanded to

the assignment court on March 28, 1994 to set a date for trial.

On that date, a further pre-trial was scheduled for June 10,

1994, and a target date was set for October 17, 1994.

[18] On October 17, 1994, the Crown Attorney filed a new

indictment. The new indictment expanded the time frame of the

charges in relation to N. to cover a two-year period from August

1977 to September 1979. The charge of assault had now been

changed to indecent assault. Over a three-day period in October

1994, MacKenzie J. heard and then dismissed motions for

disclosure of third-party medical and counselling records in

relation to all three complainants. On November 25, 1994,

MacKenzie J. ruled that the charges involving N. were not

admissible on the trial involving the D. sisters and he granted

the appellant’s application to sever the charges involving N.

The Crown elected to proceed first with the counts involving the

D. sisters.

[19] The trial in relation to the D. sisters commenced on

December 12, 1994 before MacKenzie J. and a jury but resulted in

a mistrial on December 15, 1994. Fourteen months had now elapsed

since the appellant was charged with the counts involving N.

[20] On March 24, 1995, the Crown Attorney prepared another

indictment relating only to the N. counts. On April 3, 1995, the

second trial involving the D. sisters commenced in Orangeville

before O’Connor J. and a jury. The appellant was convicted on

April 12, 1995 and sentenced on June 28, 1995 to a total of four

years on two counts of rape and one count of indecent assault.

The indictment containing the N. counts was adjourned to the

October 10, 1995 assignment court to set a date for trial during

the October 16 sittings in Orangeville. The appellant also

indicated that he would have new counsel for the N. trial.

Twenty and one-half months had now elapsed.

[21] The appellant’s trial and conviction had attracted

considerable publicity in the Orangeville area and the appellant

applied for a change of venue. On October 10, 1995, Langdon J.

changed the venue of the trial to Brampton. There were several

venues other than Brampton that might have been chosen. Counsel

for the appellant had indicated a preference for Brampton. The

case was traversed to October 20, 1995 to be spoken to in

Brampton. On October 20, 1995, a trial date was set for April

15, 1996. The appellant attended throughout the week of April

15, 1996 but the case could not be reached due to lack of court

availability. The Crown adduced no evidence as to why the

appellant’s case was not given any priority notwithstanding the

fact that by then two and one-half years had now elapsed since

the charges involving N. were laid. The case was adjourned to

September 23, 1996. Once again, the appellant attended during

the week of September 23rd but the case was not reached. There

was no explanation for why the appellant’s case was not given any

priority. Slightly less than three years had now elapsed.

[22] The case was adjourned to February 10, 1997. When court

time became available, the case was moved up to December 16, 1996

and the trial commenced before Langdon J. The trial ended in a

mistrial on December 17th because of misconduct by one of the

jurors. The case was adjourned to January 24, 1997 to set a new

trial date. On January 24, 1997, the court had dates available

in April or June. The appellant’s counsel was only available in

May. In the end, the court set the trial date for July 28, 1997.

Counsel agreed to that date.

[23] The trial commenced on July 28, 1997 before Dunn J. At the

opening of the trial the appellant applied for a stay of

proceedings because of violation of his right to trial within a

reasonable time as guaranteed by s. 11(b) of the Charter of

Rights. Forty-five and one-half months had now elapsed.

[24] The appellant was on bail throughout the entire period

except for a very brief period before he was granted bail pending

appeal following the convictions in relation to the D. sisters.

On the application under s. 11(b) of the Charter, the appellant

filed an affidavit attesting to the prejudice from the delay. At

the time, the appellant was 62 years of age. He had no criminal

record, except for the convictions in relation to the D. sisters.

He stated that he had experienced significant concern, stress and

anxiety and had been unable to work during the four-year period.

The defence of the two sets of charges had drained him of his

financial resources and he was now living on his brother’s farm

and working for his brother in exchange for room and board. He

had sold his home and used his retirement savings for legal fees

and was now on legal aid. The appellant also stated that because

of the delay at least two potential defence witnesses had

expressed concern about losing more time from work and had become

reluctant to testify. Dunn J. dismissed the application and the

appellant was found guilty by the jury on August 1, 1997. On

November 7, 1997, the appellant was sentenced to 21 months'

imprisonment concurrent to the sentences involving the D.

sisters. The appellant was released on bail pending appeal soon

after the sentencing.

ANALYSIS

[25] As indicated, I would allow the appeal in relation to the

ground of appeal concerning s. 11(b) of the Charter. However,

before dealing with that ground of appeal I will deal with the

two other grounds concerning the validity of the order to stand

trial and the indictment and the trial judge’s ruling on the

Corbett application.

The validity of the order to stand trial and the indictment

[26] The original information that was laid in October 1993

charged the appellant with common assault and gross indecency

during August and September 1977. In 1977, common assault was a

summary conviction offence. However, the Crown purported to

elect to proceed by way of indictment on that charge. A

preliminary inquiry was held on that charge and the former

indictable offence of gross indecency. No one noticed the error

at the time and no objection was taken to the proceedings. The

appellant was ordered to stand trial on the two charges. At some

point, the Crown Attorney may have noticed the problem. In any

event, the indictment upon which the appellant was ultimately

tried charged him with the offences of indecent assault and gross

indecency. Both of these offences were indictable in 1977. The

appellant raised no objection to the order to stand trial nor the

indictment at any time prior to this appeal.

[27] On appeal, Mr. Wright, who was not counsel at trial,

submitted that the proceedings were invalid. He argued that the

preliminary inquiry was a nullity and that accordingly the

indictment was a nullity.

[28] I would not give effect to this ground of appeal. The

indictment was valid on its face. It charged two indictable

offences known to law and complied in all respects with the

provisions of the Criminal Code governing the formal and

substantive requirements of an indictment. Any defect in the

procedure at the preliminary inquiry had to be raised prior to

trial either by an application to quash the preliminary inquiry

or at least by motion to quash the indictment. The appellant did

neither.

[29] In my view, the decision of the Supreme Court of Canada in

R. v. Chabot, 1980 CanLII 54 (SCC), [1980] 2 S.C.R. 985 is a complete answer to this

ground of appeal as it applies to the validity of the preliminary

inquiry. In Chabot, the accused had been charged with second

degree murder. Following the preliminary inquiry, the presiding

judge ordered the accused to stand trial on a charge of first

degree murder. On the same day, Crown counsel prepared an

indictment charging first degree murder. The accused immediately

challenged the committal for trial by way of an application for

habeas corpus with certiorari in aid. The application for habeas

corpus was dismissed by the superior court but the accused

successfully appealed to this court which set aside the committal

for trial and remitted the case to the provincial court to commit

for trial on second degree murder.

[30] On the Crown appeal to the Supreme Court, the court

considered two issues. First, whether the Criminal Code as it

then stood permitted a preliminary inquiry judge to commit for

trial on a more serious charge. The Court held that it did not.

The Criminal Code has since been amended, see s. 548(1). Second,

whether the existence of an indictment bars an attack on the

preliminary inquiry and the validity of the committal to stand

trial. Dickson J., speaking for the court, held at p. 990 that

once the indictment has been presented (or preferred), the

validity of the preliminary inquiry and the committal for trial

could no longer be attacked. At that point the indictment

provides a “fresh starting point”:

The indictment in effect becomes the foundation

upon which the further proceedings are built. After

presentment of the indictment, the accused is free

to move to quash the indictment by motion made in

the trial Court but he can no longer attack the

regularity of the committal for trial by certiorari.

[Emphasis added.]

[31] Dickson J. held that the mere filing of an indictment with

the court does not bar an attack on the validity of the

preliminary inquiry. Rather, an indictment is not presented for

the purpose of this rule “until it is lodged with the trial Court

at the opening of the accused's trial, with a Court ready to

proceed with the trial”.

[32] Accordingly, the appellant in this case was foreclosed from

attacking the validity of the order to stand trial once he was

before the judge of the General Division at the opening of his

trial. The validity of the preliminary inquiry cannot be raised

for the first time on appeal.

[33] In the alternative, the appellant argues that the

indictment, or at least the indecent assault count, is invalid

because he was never ordered to stand trial on indecent assault.

Section 574 of the Criminal Code provides that the prosecutor may

prefer an indictment containing any charge on which the accused

was ordered to stand trial or “any charge founded on the facts

disclosed by the evidence taken on the preliminary inquiry”. If

the appellant sought to challenge the validity of the indictment

because it was not founded on the evidence at the preliminary

inquiry or because s. 574 itself is invalid,1 he had to comply

with s. 601(1) of the Criminal Code. That section provides that

an objection to an indictment or a count in an indictment for a

defect apparent on the face “shall be taken by motion to quash

the indictment or count before the accused has pleaded, and

thereafter only by leave of the court before which the

proceedings take place”. Since the appellant did not move to

quash the indictment, I would not now permit him to challenge the

validity of the indictment or the count of indecent assault. It

may be that where the accused has been misled or prejudiced by a

defect in an indictment, the court of appeal will consider its

validity for the first time on appeal. However, that is not this

case. There was no suggestion that the evidence adduced at the

preliminary inquiry did not disclose the offence of indecent

assault. The appellant was always aware of the nature of the

allegations against him and he was not misled or prejudiced.

The Corbett application

[34] Prior to testifying, the appellant brought an application in

accordance with R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670 to prevent

Crown counsel from cross-examining him on his prior criminal

record pursuant to s. 12 of the Canada Evidence Act, R.S.C. 1985,

c. C-5.

[35] The appellant’s only criminal record resulted from the

convictions before O’Connor J. and a jury for the sexual offences

involving the D. sisters. Those convictions were based upon

conduct alleged to have occurred in the spring and summer of

1979, just a few months before the complainant stopped going to

the appellant’s farm. The charges relating to all three

complainants had originally been charged in the same indictment.

However, MacKenzie J. held that evidence of the allegations

involving N. were not admissible in relation to the charges

involving the other complainants. MacKenzie J. had therefore

ordered that the charges involving N. be severed from the other

charges.

[36] Following his conviction before O’Connor J. and a jury, the

appellant had been granted a change of venue because of the risk

of prejudice to a fair trial of the N. charges from the publicity

surrounding the convictions for offences on the D. sisters.

Nevertheless, Crown counsel sought to cross-examine the appellant

on these convictions.

[37] In his submissions before the trial judge, Crown counsel,

not Mr. Kelly, sought to justify the cross-examination on the

basis that defence counsel’s cross-examination of the Crown

witnesses “was of such a nature that there is a very considerable

danger of serious imbalance” if the Crown could not cross-examine

the appellant on his record. Crown counsel referred in

particular to defence counsel’s cross-examination of the

complainant’s mother on the Bahamas incident.

[38] Crown counsel also referred to defence counsel's suggestion

in cross-examination of Mrs. N. that she was “throwing in now,

for the first time” at this trial that the complainant’s manner

of dress had changed when she started working for the appellant.

The change in dress was raised during examination in chief. It

was apparent that Mrs. N. was suggesting that the complainant’s

behaviour changed while she was working for the appellant and

that this manifested itself in, among other ways, her manner of

clothing. It would seem that the prosecution was attempting to

link this change in personality with the alleged sexual abuse.

It also seems clear that the complainant’s mother had not

mentioned the change in manner of dress at the preliminary

inquiry or the first abortive trial.

[39] In his submissions on the Corbett application, Crown counsel

also referred to the cross-examination of the complainant in

which defence counsel had suggested that the allegations of

sexual abuse were “nothing but fiction” and “nothing but

nonsense”. He noted that in one question, defence counsel framed

the question as “when you were supposedly being assaulted”.

[40] Crown counsel submitted at trial that this cross-examination

of the complainant and her mother amounted to an attack on their

character. In the course of submissions before the trial judge

on the Corbett application, Crown counsel suggested that any

unfair prejudice to the appellant could be mitigated by referring

to the prior convictions as convictions for assaults that

occurred some years ago. The trial judge adopted this suggestion

and allowed the examination on the record. The trial judge did

not give formal reasons for his ruling. The reasons can be

gleaned, however, from the dialogue between the trial judge and

counsel and in particular his statement to defence counsel that

the cross-examination had developed into an attack not only on

credibility, but also on the character of the complainant and her

mother. According to the trial judge, it was necessary to

introduce the appellant’s record “to be fair to all the parties”.

Accordingly, defence counsel led evidence from the appellant in

accordance with the trial judge’s ruling.

[41] Two other incidents occurred during the trial that bear on

this issue. Crown counsel cross-examined the appellant’s brother,

a defence witness, as to whether he was aware of the appellant’s

record for “assaultive behaviour several years ago”. Defence

counsel immediately objected and the jury was asked to retire.

In the jury’s absence, defence counsel raised his concern that

the jury would learn that the convictions were for sexual

offences. A discussion took place with the witness and when the

jury returned Crown counsel asked one further leading question

about the conviction for “three counts of assault” and then

dropped the matter. However, in the course of the deliberations

the jury asked, “What were the charges that led to the three

previous convictions and when?” The trial judge answered the

question appropriately, reminding the jury that they were only to

consider the evidence led at the trial and that evidence about

the assault convictions was admitted for a limited purpose to

assess credibility and not to show a propensity to commit further

crimes.

[42] In R. v. P. (G.F.) (1994), 1994 CanLII 8780 (ON CA), 18 O.R. (3d) 1 at 5, this court

held that the decision to be made on a Corbett application is a

matter of discretion and “an appellate court should not interfere

and substitute its own view of how the trial judge’s discretion

ought to have been exercised in the absence of clear error in the

exercise of that discretion”. In my view, the trial judge did

make a clear error in the exercise of his discretion by holding

that evidence of the appellant’s record was required because

cross-examination of the complainant and her mother had included

an attack on their character and not just their credibility.

[43] In my view, the trial judge erred in permitting cross-

examination of the appellant on the prior record, even in the

sanitized version. As indicated, Crown counsel at trial sought

to justify the cross-examination on the basis that an imbalance

would have been created. This was an attempt to bring the

appellant’s case within the holding in Corbett.

[44] In Corbett, Dickson C.J.C. writing for the majority of the

Supreme Court held that the accused, who was charged with murder,

could be cross-examined on his prior record, including a prior

conviction for murder. The principal Crown witnesses in that

case had lengthy criminal records and the attack on their

credibility was largely based upon their character as disclosed

by their criminal records. Dickson C.J.C. at p. 698 explained

why he disagreed with La Forest J., who would have excluded the

record. He referred to the imbalance that would have been

created by leaving the jury with the impression that while the

Crown witnesses were hardened criminals, Corbett had an

unblemished record:

In his reasons, La Forest J. provides a useful

catalogue of factors to which reference may be

had in determining how this discretion is to be

exercised. In my view, however, my colleague

gives too little weight to the fact that in this

case, the accused appellant made a deliberate

attack on the credibility of Crown witnesses,

largely based upon their prior records. The issue

for the jury was solely that of credibility. As

La Forest J. observes, this evidence would not

have been excluded under the more comprehensive

scheme of the governing English statute. In my

view, excluding evidence of Corbett's prior

criminal record would have created a serious

imbalance. Had Corbett's record been excluded, the

jury, as I have earlier indicated, would have been

left with the entirely mistaken impression that

while the Crown witnesses were hardened criminals,

Corbett had an unblemished record. The problem

could not be solved, in my view, by admitting into

evidence all the convictions, save that for murder.

Apart from the murder conviction in 1971, the

earlier convictions dated back over 30 years to

1954. I am not at all persuaded that the imbalance

between the Crown and accused would have been avoided

by admitting only evidence of convictions for

offences committed in the accused's youth. It is my

view, therefore, that the jury would have been

misled rather than aided by the exclusion of the

evidence, and that in the circumstances it cannot be

said that admission of the evidence was unfairly

prejudicial. [Emphasis added.]

[45] The facts in Corbett are far removed from the facts in this

case. The attack on credibility of the Crown witnesses in

Corbett was on the basis of their character especially as

disclosed in the criminal record. These were matters not

directly connected with the offence itself.

[46] There is a distinction between an attack on the character of

Crown witnesses initiated by the defence and attempts by the

defence to meet the prosecution's evidence that incidentally

impacts on character. The attack on the Crown witnesses in the

appellant’s case was directed at the lack of credit of their

accounts of the events, not their character and certainly not

their character for criminal conduct. The cross-examination of

the complainant’s mother on the Bahamas incident, for example,

was not a gratuitous attack on her virtue. Crown counsel led

evidence that the appellant and the N. family went on trips to

the Bahamas, but after the 1979 trip there was no further

socialization with the appellant. Crown counsel also led

evidence about the finding of the soiled panties, which the

complainant linked to the last time she went to the appellant’s

farm, and the abrupt change in the complainant’s personality at

the same time. The prosecution was clearly attempting to bolster

its case by linking all of these changes to the abuse of the

complainant. It was open to the defence to show that there was

an alternative explanation for at least some of this change in

the relationship between the appellant and the N. family, namely

the alleged incident in 1978 between Mrs. N and the appellant in

the Bahamas. The same may be said of the attack on Mrs. N.’s

testimony because she had not mentioned the change in the

complainant’s manner of dress. The manner of dress was raised in

direct examination and it was proper for the appellant to attack

the accuracy of Mrs. N’s recollection by showing that she had

never mentioned this matter before. This was not an attack on

Mrs. N.’s character.

[47] Similarly, a suggestion that the complainant’s evidence of

the abuse was untrue was not an attack on her evidence because of

bad character. The appellant was entitled to deny his guilt and

repudiate the allegations made by the complainant. Questioning

the complainant’s account and suggesting that the account was not

true did not create the potential for the kind of imbalance

discussed in Corbett.

[48] In Corbett, while Dickson C.J.C. disagreed with La Forest J.

as to whether the record should be admitted, he accepted the

factors that should be taken into account in the exercise of the

judge’s discretion. Among the most important factors enumerated

by La Forest J. at pp. 740-44 are: the nature of the previous

conviction, the remoteness or nearness of the conviction to the

present charge, whether it is a conviction for a similar offence

(in which case there is a greater risk of prejudice to a fair

trial), and the nature of the defence attack on the Crown

witnesses. I have already dealt with this last factor. The

other factors all weighed against admitting the prior

convictions.

[49] As to remoteness or nearness of the convictions, while the

convictions were very recent, they related to incidents that

occurred over fifteen years earlier. In cases such as this,

where the conviction, although recent, relates to events many

years earlier, the conviction may have little relevance to

credibility. At p. 742 of Corbett, La Forest J. discussed the

remoteness factor in terms that indicate it is the time from the

criminal conduct and not the date of the actual conviction that

is of most importance:

The remoteness or nearness of the previous

conviction is also, as the court in Gordon, supra,

stated, “a factor of no small importance” (p. 940).

Combined with this factor are the circumstances of

the accused. As the court in that case put it, at

p. 940: “Even [a conviction] involving fraud or

stealing, for example, if it occurred long before

and has been followed by a legally blameless life,

should generally be excluded on the ground of

remoteness.” [Emphasis added.]

[50] As to the nature of the previous convictions, these were not

convictions for dishonesty. They were convictions for similar

offences for which the appellant was on trial. Moreover, two

judges had earlier made rulings designed to ensure that the

appellant’s right to a fair trial was not prejudiced by the other

proceedings. MacKenzie J. had ordered severance of the counts

and Langdon J. had ordered a change of venue. Admission of the

appellant’s record resulting from those proceedings risked

undoing the salutary effect of those rulings. That this was a

real risk was demonstrated by the Crown counsel’s unnecessary

questioning of the appellant’s brother about the record and the

jury’s question about the record. In my view, it would be

unusual circumstances that would require cross-examination of an

accused on a conviction resulting from a previously severed trial

and the trial judge erred in permitting the cross-examination in

this case. Having regard to my conclusion on the s. 11(b) issue,

it is not necessary to decide whether this error would require a

new trial.

[51] One final comment on this issue. Mr. Wright submitted that

it was improper to sanitize the record as it meant that the

appellant and his brother were forced to give untrue testimony.

I do not agree. There is ample authority for a trial judge to

edit a criminal record to limit its prejudicial effect. Usually,

as in R. v. P. (G.F.), or R. v. T. (D.B.) (1994), 89 C.C.C. (3d)

466 (Ont. C.A.), this takes the form of editing out certain

convictions. However, I see nothing wrong with convictions for

sexual offences as committed by this appellant on the D. sisters

being described as assaults to attempt to minimize some of the

prejudicial effect. Those offences were a form of assault. The

appellant and his brother were not thereby compelled to give

false testimony.

Section 11(b) of the Charter of Rights and Freedoms

The Trial Judge’s Reasons

[52] In his reasons on the application for a stay of proceedings,

Dunn J. characterized the delay of 45 and one-half months as

“extremely long” and therefore requiring careful scrutiny. He

made certain findings in his review of the reasons for the delay

that can be summarized as follows. The application by the

defence for severance was not unreasonable, but it was not

unreasonable to await the outcome of the trial involving the

allegations by the D. sisters. The defence was not to be faulted

for then bringing a motion for a change of venue, but defence

counsel had to be aware of Brampton’s reputation for delay. The

delay that resulted from the mistrial caused by the juror

misconduct could not be considered systemic delay. There was no

significant prejudice to the accused “separate from that he has

faced as a result of his involvement in the other matters”.

[53] The trial judge held that, taking out delay due to defence

counsel’s unavailability, the systemic delay above what would

“ordinarily be required” was twelve months. He held that this

delay did not violate the appellant’s s. 11(b) rights for the

following reasons:

If there is eleven or twelve months beyond what

is accepted generally for the hearing of a trial

of this nature, then I look again at the overall

complexity of the matters, the not infrequent

change of counsel, the difficulty the accused has

had maintaining counsel, all of which to a degree

are included in the delay ordinarily occasioned,

and implicit in the delay the accused has faced

here. I remark that the choice of Brampton as a

forum for the trial of a charge of this nature,

that one can only expect – in my opinion – a

little more delay here than if another forum

perhaps was chosen. But how much, would some

person reasonably expect. Twelve months, in my

opinion, for a charge of this nature over and above

what would be reasonable, is, when weighed against

the public desirability of having charges of this

type, in these circumstances, tried, in my opinion,

not too much.

[54] For the reasons that follow, it is my view that the trial

judge made several errors that require that the appeal be

allowed. The trial judge misapprehended the evidence concerning

delay caused by the appellant’s change in counsel. The trial

judge also misapprehended the nature of the evidence of prejudice

to the appellant and as a result failed to properly apply this

factor. In particular, the trial judge erred in discounting the

prejudice to the appellant become some of it was caused by the

other charges facing the appellant during some of the relevant

time. He also erred in failing to give appropriate weight to the

inferred prejudice from the delay. The trial judge also placed

undue weight on the complexity of the case, given that the

complex issues had been resolved by decisions rendered by

MacKenzie J. in motions heard prior to the trial of the D.

sisters. Finally, the trial judge erred in failing to take into

account the increased burden on the Crown to expedite the trial

because of the decision to try the charges involving the D.

sisters first. The unexplained delay in proceeding with this

trial on two different occasions in 1996 weighed heavily against

excusing the one year of unreasonable delay found by the trial

judge. I will deal with these errors as they arise in the course

of the analysis of the factors to be considered on a s. 11(b)

application.

The s. 11(b) analysis

[55] In R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771 at 788, Sopinka J. held

that the determination of whether the accused’s right to a trial

within a reasonable time had been infringed could not be made by

the application of a mathematical formula. Rather, the court is

required to balance the interests the section is designed to

protect against the factors that either inevitably lead to delay

or are otherwise the cause of the delay. The balancing “requires

an examination of the length of the delay and its evaluation in

light of the other factors. A judicial determination is then made

as to whether the period of delay is unreasonable.” Sopinka J.

held that the court should consider the following factors:

1. the length of the delay;

2. waiver of time periods;

3. the reasons for the delay, including

(a) inherent time requirements of the case;

(b) actions of the accused;

(c) actions of the Crown;

(d) limits on institutional resources, and

(e) other reasons for delay, and

4. prejudice to the accused.

[56] I will briefly consider the delay in the appellant’s case

under those headings. However, I agree with the trial judge that

when the various explanations are considered there is twelve

months of unacceptable institutional delay. Counsel for the

respondent accepted that this is correct. However, the

respondent submits that the trial judge rightly concluded that

there was no violation of the appellant’s rights.

1. the length of the delay

[57] The delay to be considered in this case is the time from the

laying of the charges to the date the trial commenced, a period

of 45 and one-half months. The Crown concedes that this period

is of sufficient length to trigger an inquiry into the reasons

for delay.

2. waiver of time periods

[58] The Crown also concedes that no periods of time should be

deducted on account of waiver by the appellant.

3. the reasons for the delay

(a) inherent time requirements of the case

[59] The appellant’s case proceeded rapidly through the

provincial court. The preliminary inquiry was completed

approximately 40 days after the information was laid. It is

unclear when the appellant’s case was ready to proceed in the

General Division. Prior to the severance application, two

judicial pre-trial conferences were held in December 1993 and

June 1994 and two target dates, of May and October 1994, set. It

is reasonable to conclude that despite the May target date, the

case was not ready to proceed until after the June 1994 pre-trial

conference. In the circumstances, inherent time requirements of

the case at least explain the delay until the second pre-trial in

June 1994.

[60] The appellant was convicted on the first set of charges in

April 1995 and sentenced on those charges on June 28, 1995. The

indictment concerning the N. charges was adjourned to the October

10, 1995 assignment court with the hope that the trial would

proceed on the sittings in Orangeville beginning October 16,

1995. According to Crown counsel, the Orangeville court has

sittings for one week in each of May and June and two weeks in

October. This would appear to be the explanation for the

decision to adjourn the appellant’s case to October. However,

since the case was ready to proceed, I would not attribute any of

this delay to the inherent time requirements of the case.

[61] Some short period of delay after the second mistrial is

properly characterized as part of the inherent time requirements

of the case. After the second mistrial, the appellant had

exhausted his own financial resources and needed time to make

other arrangements to continue the retainer of his counsel. A

short adjournment was granted to accommodate the appellant.

[62] Mr. Wright argued that the two mistrials, especially the

mistrial caused by juror misconduct, should not be considered as

legitimate explanations for delay and the Crown should be held

responsible for those delays. There is no suggestion that the

Crown had anything to do with either mistrial, although the first

mistrial was caused by carelessness by a Crown witness. In my

view, the delay properly attributable to the mistrials must be

considered part of the inherent time requirements of the case.

[63] In Morin at p. 800, Sopinka J., in reference to R. v. Rahey,

1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588, held that delay resulting from excessive

adjournments by the trial judge could not be relied upon by the

Crown to justify the period under considerations. Mr. Wright

sought to bring the appellant’s case within that principle. In

Rahey, the trial judge adjourned the case nineteen times over an

eleven month period while he considered a defence motion for a

directed verdict. The superior court judge who considered the

accused’s s. 11(b) application described this conduct as

“shocking, inordinate and unconscionable”. As La Forest J. held

at p. 633, “the courts, as custodians of the principles enshrined

in the Charter, must themselves be subject to Charter scrutiny in

the administration of their duties”.

[64] The two mistrials in this case are of a different character.

They were required to ensure that the appellant and the Crown

received a fair trial by an impartial tribunal. As to the

mistrial caused by juror misconduct, in my view, that cannot be

analogized to the kind of misconduct that occurred in Rahey.

Jurors are the triers of fact, but they are not the custodians of

the principles enshrined in the Charter, in the sense referred to

by La Forest J. in Rahey. It would be unreasonable and unfair to

place blame for juror misconduct at the feet of the Crown.

[65] A better analogy is provided by the circumstances that

confronted the court in R. v. MacDougall, 1998 CanLII 763 (SCC), [1998] 3 S.C.R. 45

where the delay resulted from the trial judge’s illness. In that

case, McLachlin J. noted that in some circumstances the Crown may

be responsible for delays caused by the trial judges. She held

at p. 68, however, that “the inherent time requirements of a case

are not limited to commonplace delays which occur in every

situation, but may include delay due to extraordinary and

unforeseeable events”. She referred with approval to the

decision of Doherty J.A. in R. v. Allen (1996), 110 C.C.C. (3d)

331 (Ont. C.A.) affirmed 1997 CanLII 331 (SCC), [1997] 3 S.C.R. 700. In Allen part of

the delay was due to a lengthy adjournment in the course of the

trial when the trial could not be completed within the initial

time set aside. As Doherty J.A. said, at p. 348, “the inherent

time requirements needed to complete a case are considered to be

neutral in the s. 11(b) calculus”.

[66] I would place the two mistrials that occurred in the course

of these proceedings in that category. The mistrial due to juror

misconduct meant that the trial could not be completed in

December 1996. The trial was eventually rescheduled for July 28,

1997, a delay of seven months. Not all of this delay was solely

due to the mistrial. Some was the result of lack of adequate

resources, some due to unavailability of defence counsel, and

some due to the unavailability of the Crown witnesses.

(b) actions of the accused

[67] In Morin, Sopinka J. referred to a number of actions of the

accused, not amounting to waiver, that nevertheless explain some

of the delay. He included matters such as change of venue

motions and adjournments necessitated by a change in counsel. In

this case, the appellant brought three motions that explain some

of the delay: the motion for disclosure of third party records,

the severance motion and the change of venue motion. As a result

of the third party records motion, the trial could not proceed in

the October 1994 sittings of the court. Thus, this motion

explains the delay until December 1994, approximately two months.

[68] The severance motion explains much of the delay while

proceedings concerning the D. sisters’ charges proceeded through

the courts, from December 1994 to June 28, 1995. Part of the

explanation for that delay was a mistrial caused by a Crown

witness blurting out some inadmissible evidence, with which I

have already dealt. In all, this constitutes an explanation for

most of this six-month period.

[69] The change of venue application caused a further delay. But

for that application, the trial of these charges would have

proceeded in October 1995. Instead, a new trial date in April

1996 had to be set. In his reasons, the trial judge appears to

have attached significance to the choice of Brampton as the new

venue. He said that this “choice of venue cannot escape

criticism” because of Brampton’s reputation for delay. Later,

the trial judge returned to this issue and suggested that the

appellant should have expected a little more delay in Brampton

than in other places.

[70] The submissions made to the trial judge indicated that

defence counsel favoured Brampton because of convenience for

counsel and because, unlike the smaller centres suggested by

Crown counsel, there are continuous jury sittings in Brampton.

Counsel also indicated that his experience was that trials

usually get on in Brampton if not on the first trial date then

certainly by the second trial date. Moreover, the venue was

selected by the very experienced judge who heard the motion, not

counsel. It is also somewhat disappointing that seven years

after the Supreme Court of Canada drew attention to the problem

of delay in Brampton in R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199,

accused are expected to accept greater delays in that

jurisdiction than in others.

[71] Having said that, I agree with the trial judge that the

appellant’s preference for Brampton as the venue explains some of

the delay. I would attribute most of the very lengthy delay

between the first appearance in that court in October 1995 and

the first trial date in April 1996 to this decision. It cannot

reasonably explain the subsequent delays.

[72] In considering the reasonableness of the delay, the trial

judge placed great weight on the appellant’s change of counsel.

I have set out that part of his reasons above but I repeat it

here for convenience:

If there is eleven or twelve months beyond what is

accepted generally for the hearing of a trial of

this nature, then I look again at the overall

complexity of the matters, the not infrequent

change of counsel, the difficulty the accused has

had maintaining counsel, all of which to a degree

are included in the delay ordinarily occasioned,

and implicit in the delay the accused has faced here.

[Emphasis added]

[73] In my view, the trial judge misapprehended the evidence in

this respect and this constituted an error. The appellant had,

of course, earlier been charged with offences involving the D.

sisters, for which he had retained counsel. That same counsel,

Mr. Ryder, represented the appellant in all of the provincial

court proceedings for both sets of charges. Following the

preliminary inquiry, the appellant retained Mr. Whitten for the

trial. There is no indication in the record and no allegation by

the Crown that this change of counsel in any way delayed the

proceedings. The record indicates that the appellant had

retained a third counsel, Mr. Lipson, to represent him for the

trial of these charges. Again, there is no indication in the

record and no allegation by the Crown that this change in counsel

in any way contributed to the delay. To the contrary, following

the sentencing on the first set of charges, Mr. Whitten indicated

that he had dates from Mr. Lipson and was in a position to set a

date for trial. As indicated, the case was then put over to the

October sittings for trial. In my view, the trial judge erred in

attributing any of the delay to change of counsel.

(c) actions of the Crown

[74] In his submissions, Mr. Wright attributed a number of

actions to the Crown as causing delay including the following:

i. the joinder of the D. and N. charges;

ii. proceeding with the D. charges first;

iii. the mistrial when a Crown witness blurted

out inadmissible evidence;

iv. the delay due to the two missed

trial dates in Brampton;

v. the mistrial caused by juror

misconduct.

[75] As I read his reasons, the trial judge did not attribute any

of these reasons for delay to the Crown. I essentially agree

with the trial judge. I have already dealt with the two

mistrials.

[76] I do not accept that the decision to join the two sets of

charges caused delay. To the contrary, had MacKenzie J.

concluded that the evidence of the N. charges was admissible as

similar fact evidence on the D. charges, the two sets of charges

would have been tried together and both of the appellant’s cases

would have concluded sometime in early 1995. I cannot say that

Crown counsel’s decision to attempt a joint trial was

unreasonable. I also cannot say that the decision to try the D.

charges first was unreasonable. They were the more serious

allegations.

[77] The fact that the appellant’s case was not reached on two

occasions is somewhat more troubling. There is no suggestion

that Crown counsel sought an adjournment. However, in view of

the lengthy delay that had already occurred because of the

severance, Crown counsel should have given the appellant’s case

more priority. There is no explanation in any of the material as

to why other cases proceeded in preference to the appellant’s

case notwithstanding the delay, which in April 1996 already stood

at two and one-half years. Having said that, in my view, the

delay caused by the missed trial dates in 1996 is more properly

analyzed under the heading “limits on institutional resources”.

The failure of the Crown to take steps to give this case some

priority can be considered at the end in the balancing exercise.

(d) limits on institutional resources

[78] To prevent the right to a trial within a reasonable time

from becoming meaningless, limits on institutional resources can

only be offered by the state as an explanation for some of the

delay. Sopinka J. held in Morin, at pp. 795-96, that there is a

point in time when the court will no longer tolerate delay based

on inadequate resources. This period was referred to as an

administrative guideline. It is not, however, a limitation

period nor a fixed ceiling on delay.

[79] In Morin at p. 799, Sopinka J. confirmed that the

justifiable institutional delay after committal for trial is in

the range of six to eight months. However, he stressed at p. 799

that this was for guidance of trial courts only and may have to

be adjusted to reflect local conditions. At trial, Dunn J. was

referred to the decision in R. v. Pusic (1996), 1996 CanLII 8215 (ON SC), 30 O.R. (3d) 692

(Ont. Ct. (Gen. Div.)). In that case, Hill J. provided an

exhaustive analysis of institutional resources in the Region of

Peel.2 He concluded with this comment at p. 720:

Such material and information as the court has before

it, raises a real question of the level of courtroom

and judicial resources committed to Peel. The judicial

rebuke of the dilemma in Peel was unequivocal in the

Askov decision. Alarming signals of institutional

endangerment of constitutional rights have emerged in

this case. To the extent that there exists

institutional (governmental) recklessness with respect

to the s. 11(b) rights of accused persons in Peel,

arising from insufficient resources, this cannot be

condoned by the courts.

[80] As I understand his analysis, Hill J. saw no basis for

adjusting the administrative guideline beyond the six to eight

months suggested in Morin. I did not understand Dunn J. to

disagree with this assessment. I would adopt it as well. Thus,

six to eight months of the delay is explained by limitation on

institutional resources.

(e) other reasons for delay

[81] There are no other relevant reasons for delay.

[82] To summarize, the trial judge concluded that approximately

twelve months of the delay was unexplained. This was twelve

months over and above what might be characterized as reasonable

systemic delay. Applying the Morin analysis, I have reached

approximately the same result.

4. prejudice to the accused

[83] The trial judge held there was no significant prejudice to

the appellant because much of what was referred to in his

affidavit probably resulted from the other charges and because it

was the same kind of prejudice as anybody faces “charged with

similar offences with some difference”. He did acknowledge that

he was “obliged to weigh some prejudice of course”.

[84] In my view, the trial judge misapprehended the nature of the

evidence of prejudice in this case and failed to properly apply

the factor of prejudice as explained in Morin. The trial judge

erred in discounting the prejudice to the appellant because some

of it was due to the other charges. The other charges were part

and parcel of the delay in this case. It was reasonable to try

those charges first and this explained much of the early delay

but this does not mean that the appellant was not prejudiced by

that delay. Section 11(b) protects the right to security of the

person by, as it was put in Morin at p. 786, “seeking to minimize

the anxiety, concern and stigma of exposure to criminal

proceedings”. At p. 802-803, Sopinka J. held that prejudice to

the accused’s security interest could be shown by evidence of the

“ongoing stress or damage to reputation as a result of overlong

exposure to the ‘vexations and vicissitudes of a pending criminal

accusation’”.3 In my view, that clearly applies in this case.

The stress to the appellant was ongoing as a result of all the

charges and in the circumstances of this case it was not

realistic to distinguish between the two sets of charges.

[85] In my view, the trial judge also erred in failing to give

appropriate weight to the inferred prejudice from the delay. As

Sopinka J. said in Morin at p. 801, “[t]he longer the delay the

more likely that such an inference will be drawn”. Forty-five and

one-half months is a very long delay and prejudice should have

been inferred from this prolonged delay. This is not a case where

action or inaction by the appellant should be used to mitigate

the effect of the prejudice. In Morin, the court inferred that

little or no prejudice resulted from the delay because counsel

had failed to take up an offer by Crown counsel to find an

earlier trial date and bring the case forward from the previously

scheduled trial date. Exactly the opposite occurred in this case.

After the case was not reached in September 1996, it was

adjourned to February 10, 1997 for trial. However, the appellant

was then offered the earlier December 16, 1996 date and the trial

was moved up to that date.

The “balancing”

[86] The purpose of the analysis of the delay under the various

Morin headings is to provide a framework for the balancing

exercise. Sopinka J. described the nature of the exercise in

these terms at p. 788:

The judicial process referred to as "balancing"

requires an examination of the length of the delay

and its evaluation in light of the other factors. A

judicial determination is then made as to whether

the period of delay is unreasonable. In coming to

this conclusion, account must be taken of the

interests which s. 11(b) is designed to protect.

[87] The interests s. 11(b) is designed to protect include not

only the interests of the accused but the societal interest in

seeing that accused are tried promptly. Further, the more

serious the charge the greater the “societal demand that the

accused be brought to trial”.4

[88] The trial judge concluded that, “[t]welve months … for a

charge of this nature over and above what would be reasonable,

is, when weighed against the public desirability of having

charges of this type, in these circumstances, tried, in my

opinion, not too much”. In my view, the trial judge having found

an unreasonable delay of one year erred in dismissing the defence

application because of the societal interest in trying serious

charges.

[89] This was a serious charge, but not as serious as the

allegations in the charges involving the D. sisters. The Crown

elected to proceed with the more serious charges first. That

was a reasonable choice, but it placed an increased burden

on the state to ensure that these charges were dealt with as

quickly as possible thereafter. Yet on two trial dates, the

appellant’s case was not reached. The only evidence indicates

that the appellant was required to be available during the weeks

of April 15-19 and September 23-27, 1996, but no court was

available during this time to try his case. Even if the

appellant’s case had proceeded on April 15th, thirty months would

already have passed, just under twenty-nine months having elapsed

from the order to stand trial. The Crown offered no explanation

for the inability to try the case during these time periods. In

the result, the abortive first trial did not commence for

approximately thirty-seven months after the order to stand trial

and about eighteen months after the sentencing on the trial

involving the charges relating to the D. sisters. In my view,

this factor weighed very heavily against excusing the one year

of unreasonable delay.

[90] The trial judge highlighted four other factors for deciding

that the one year of unexplained institutional delay did not

infringe the appellants rights. He considered the lack of

significant prejudice, the “overall complexity of the matters”,

the “not infrequent change of counsel” and “the choice of

Brampton as a forum”.

[91] I have already indicated my view that the trial judge did

not properly weigh the prejudice to the appellant. I have also

indicated that the trial judge misapprehended the evidence

concerning the change in counsel. In my view, the trial judge

also overemphasized the complexity of the case. While there were

some complex matters, such as disclosure of third-party records

and admission of similar fact evidence, those issues were

resolved by MacKenzie J. prior to the trial of the allegations

involving the D. sisters. The defence had agreed that the

rulings would apply to the subsequent trials. One cannot on one

hand excuse a considerable delay because of the need to try the

more serious charges first, while ignoring the effect that manner

of proceeding had on simplifying the issues on the subsequent

trial.

[92] This leaves the choice of Brampton as a forum. I have

already indicated my agreement with the trial judge that this was

a factor to be considered. It cannot alone, however, excuse the

unreasonable delay of one year in this case. It could, at most,

excuse one or two months more than would otherwise be tolerable.

In my view, the trial judge erred in dismissing the appellant’s

application.

DISPOSITION

[93] Accordingly, I would allow the appeal, set aside the

conviction, order a new trial and stay the proceedings on the new

trial.

(signed) "M. Rosenberg J.A."

(signed) "I agree R. McMurtry C.J.O."

(signed) "I agree Doherty J.A."

RELEASED: June 13, 2000

1 On appeal, Mr. Wright argued that s. 574 of the Criminal

Code was unconstitutional. Since the validity of the indictment

was not raised in the trial court, it is not appropriate to

consider this issue.

2 The General Division courthouse for Peel Region is in

Brampton.

3 Referring to R. v. Mills, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863 at 919.

4 R. v. Morin, at p. 787.