Her Majesty the Queen v. Kovacs-Tatar

Her Majesty the Queen v. Kovacs-Tatar [Indexed as: R. v. Kovacs-Tatar]

73 O.R. (3d) 161

[2004] O.J. No. 4756

Docket: C40422

Court of Appeal for Ontario,

Weiler, Rosenberg JJ.A. and Pardu J. (ad hoc)

November 22, 2004

Charter of Rights and Freedoms -- Trial within reasonable time -- Total length of pre-trial period 16 months -- Accused chiropractor charged with sexually assaulting patient -- Accused declined offer to bring trial date forward -- Trial judge erred in staying proceedings on basis that 12 months' institutional delay was excessive and that accused suffered financial prejudice and adverse health effects as result of delay -- Accused's affidavit stating financial prejudice caused by publicity regarding charges -- Accused's health adversely affected by being charged with criminal offence in addition to delay in going to trial -- Trial judge's reasons making no specific mention of balancing society's interest in having serious charges adjudicated on their merits with the accused's s. 11(b) Charter right -- Canadian Charter of Rights and Freedoms, s. 11(b).

The accused chiropractor was charged in November 2001 with sexually assaulting a female patient. A trial date was set for March 2003. The accused brought an application for a stay of proceedings on the basis that his right under s. 11(b) of the Canadian Charter of Rights and Freedoms to be tried within a reasonable time was violated. Of the approximately 16-month delay from the date of the charge to the date set for the trial, 12 months was attributable to institutional delay. The trial judge granted the application. He stated that in the absence of prejudice to the accused, although he would have been tempted to issue a stay, he probably would have let the case proceed, but that when the prejudice to the accused's health and the financial prejudice which he suffered were factored in, he was driven inexorably to the conclusion that the charge had to be stayed. The summary conviction appeal court allowed the Crown's appeal, stating that the trial judge found that the institutional delay w as "acceptable" and holding that the trial judge erred in his assessment of the prejudice suffered by the accused. The stay was set aside. The accused appealed.

Held, the appeal should be dismissed.

The summary conviction appeal judge misapprehended the trial judge's reasons in that he did not hold the institutional delay to be "acceptable". However, the institutional delay of about 12 months did not greatly exceed the eight- to ten-month guideline established in the jurisprudence for matters in provincial court.

The summary conviction appeal judge correctly held that the trial judge erred in his assessment of financial prejudice due to institutional delay. The accused's own affidavit stated that the prejudice to his financial status was due to the fact of his being charged and the resulting publicity.

Both the summary conviction appeal judge and the trial judge erred in assessing the prejudice to the accused's health. The prejudice to the accused's health was not due entirely to institutional delay, as found by the trial judge; nor was it due entirely to the fact of being charged, as found by the summary conviction appeal judge. Initially, the prejudice to the accused's health was related to the fact of being charged, as he began taking anti-anxiety medication within a month of the charge. About eight months after the trial date was set, the accused began taking anti-depressant medication. It was open to the trial judge to find that at [page162] this point the institutional delay was prejudicial to the accused's health.

The trial judge's reasons made no specific mention of balancing society's interests in having a serious breach of trust sexual assault charge tried with the accused's interest in being tried within a reasonable time. Even if he did engage in this balancing process, his conclusion in granting a stay was undermined by the errors he made in assessing the specific prejudice to the accused. No part of the delay was attributable to any actions by the Crown. To the contrary, the record tended to show that it was the Crown that was interested in proceeding with the trial and the accused who was content with the more leisurely pace, at least in the early part of 2002. The accused had numerous opportunities to complain of the delay and to seek to expedite matters, but he did not bring his plight to the attention of the prosecuting authorities and the courts until his s. 11(b) motion was brought in January 2003. He failed to take advantage of an offer by the Crown to bring the case forward to set a trial date. Any action or inaction on the part of an accused that is inconsistent with a desire for a timely trial is relevant to the assessment of prejudice. By the time the accused was suffering significant prejudice attributable to the delay, the trial was only four months away. Had the accused taken steps early in the proceedings to set a trial date instead of taking an unreasonable position respecting disclosure, his trial date could have been set at least two months earlier. Considering the overall period of time and the seriousness of the offence, an allegation of sexual assault, and thus breach of trust, by a health care provider on a patient, the delay was not unreasonable.

APPEAL by the accused from a judgment of Chapnik J., [2003] O.J. No. 2809, [2003] O.T.C. 642 (S.C.J.), setting aside a stay of proceedings ordered by Cole J. of the Ontario Court of Justice, dated January 9, 2003. [page163]

R. v. Bennett, 1992 61 (SCC), [1992] 2 S.C.R. 168, 9 O.R. (3d) 276n, 138 N.R. 388, 9 C.R.R. (2d) 195, 74 C.C.C. (3d) 384, affg (1991), 1991 2701 (ON CA), 3 O.R. (3d) 193n, 46 O.A.C. 99, 7 C.R.R. (2d) 145, 64 C.C.C. (3d) 449, 6 C.R. (4th) 22 (C.A.); R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771, 134 N.R. 321, 8 C.R.R. (2d) 193, 71 C.C.C. (3d) 1, 12 C.R. (4th) 1, apld Other cases referred to R. v. Askov, 1990 45 (SCC), [1990] 2 S.C.R. 1199, 75 O.R. (2d) 673n, 42 O.A.C. 81, 74 D.L.R. (4th) 355, 113 N.R. 241, 49 C.R.R. 1, 59 C.C.C. (3d) 449, 79 C.R. (3d) 273 (sub nom. Askov, Hussey, Gugliotta & Melo v. R.); R. v. Christie (2001), 2001 NSCA 147, 160 C.C.C. (3d) 192, 197 N.S.R. (2d) 398 (C.A.); R. v. Conway, 1989 66 (SCC), [1989] 1 S.C.R. 1659, 34 O.A.C. 165, 96 N.R. 241, 40 C.R.R. 1, 49 C.C.C. (3d) 289, 70 C.R. (3d) 209; R. v. MacDougall, 1998 763 (SCC), [1998] 3 S.C.R. 45, 168 Nfld. & P.E.I.R. 83, 165 D.L.R. (4th) 193, 231 N.R. 147, 517 A.P.R. 83, 56 C.R.R. (2d) 189, 128 C.C.C. (3d) 483, 19 C.R. (5th) 275; R. v. Sharma, 1992 90 (SCC), [1992] 1 S.C.R. 814, 134 N.R. 368, 8 C.R.R. (2d) 222, 71 C.C.C. (3d) 184, 12 C.R. (4th) 45; R. v. Silveira, [1998] O.J. No. 1622, 35 M.V.R. (3d) 30 (Gen. Div.); R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326, 83 Alta. L.R. (2d) 193, 130 N.R. 277, [1992] 1 W.W.R. 97, 18 C.R.R. (2d) 210, 68 C.C.C. (3d) 1, 8 C.R. (4th) 277; Rahey v. R., 1987 52 (SCC), [1987] 1 S.C.R. 588, 78 N.S.R. (2d) 183, 39 D.L.R. (4th) 481, 75 N.R. 81, 193 A.P.R. 183, 33 C.R.R. 275, 33 C.C.C. (3d) 289, 57 C.R. (3d) 289 (sub nom. R. v. Rahey); Sheppard v. R., [2002] 1 S.C.R. 869, 211 Nfld. & P.E.I.R. 50, 210 D.L.R. (4th) 608, 284 N.R. 342, 633 A.P.R. 50, 162 C.C.C. (3d) 298, 50 C.R. (5th) 68, 2002 SCC 26, [2002] S.C.J. No. 30 (sub nom. R. v. Sheppard (C.)) Statutes referred to Canadian Charter of Rights and Freedoms, s. 11(b)

Paul Calarco, for appellant. Alexander D. Smith, for respondent.

[1] BY THE COURT: -- The appellant, a chiropractor, was charged with one count of sexual assault on a female patient. In response to the appellant's motion that his right to be tried within a reasonable time pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms had been infringed, the trial judge ordered that the charge be stayed. The Summary Conviction Appeal Judge ("SCAJ") lifted the stay and ordered that the matter proceed to trial. The issues on this appeal all relate to whether the SCAJ erred in so doing.

[2] The appellant submits that the SCAJ erred in three respects. First, she stated that the trial judge found that the institutional delay was "acceptable" thereby misapprehending the trial judge's reasons. Second, she substituted her views as to prejudice for those of the trial judge and further erred in holding the appellant at fault for not expediting the matter. Third, she erred in holding that the trial judge did not balance society's need to have a serious charge tried with the appellant's interest in being tried within a reasonable time.

[3] Although the SCAJ misapprehended the trial judge's reasons in that he did not hold the institutional delay in this case was "acceptable", the institutional delay of about 12 months did not greatly exceed the eight- to ten-month guideline established in the jurisprudence for matters in provincial court. The SCAJ correctly held that the trial judge erred in his assessment of financial prejudice due to institutional delay. The appellant's own affidavit stated that the prejudice to his financial status was due to the fact of his being charged and the resulting publicity.

[4] Both the SCAJ and the trial judge erred in assessing the prejudice to the appellant's health. The prejudice to the appellant's health was not due entirely to institutional delay, as found by the trial judge; nor was it due entirely to the fact of being charged, as found by the SCAJ. Initially the prejudice to the appellant's health was related to the fact of being charged as he began taking anti-anxiety medication within a month of the charge. About eight months after the trial date was set, the appellant began taking anti-depressant medication. It was open to the trial judge to find that at this point the institutional delay was prejudicial to the appellant's health.

[5] The trial judge's reasons make no specific mention of balancing society's interests in having a serious charge tried with the appellant's interest in being tried within a reasonable time. The SCAJ inferred that the trial judge did not engage in this [page164] balancing process. Even if the trial judge engaged in this balancing process, his conclusion in granting a stay is undermined by the errors he made in assessing the specific prejudice to the appellant. Bearing in mind the errors of the SCAJ, and engaging in the balancing process ourselves, we would nevertheless agree with her that the stay should be lifted and we would dismiss the appeal.

Factual Background to this Appeal

[6] The appellant was arrested and charged with sexually assaulting the complainant patient on November 15, 2001. The Crown elected to proceed summarily. The overall delay from the date of the charge to the date set for trial, March 6, 2003, was approximately 16 months.

[7] The day after the appellant's arrest, he was released on bail with conditions. One of the conditions of his bail was that another adult person be present at all times when the appellant dealt with a female patient.

[8] At the appellant's first appearance on November 20, 2001, the Crown indicated that disclosure would be ready in approximately three to four weeks. By December 18, the complainant's videotaped statement was available and the appellant had retained a lawyer, not Mr. Calarco, who was requesting that the matter be put over until January 15, 2002. On January 15, 2002, the lawyer advised the court he was still not ready to set a trial date. He had not picked up some of the disclosure including the videotape. He also indicated that he had been advised the Crown was obtaining an expert medical report and that he would not set a trial date until he had received it. He asked for the matter to be put over to February 26, but a date was set for February 6. On that date, the lawyer stated he still did not have the expert medical report and was not willing to set a trial date without it. He talked about not giving up his "Stinchcombe rights". The Crown argued that it was not necessary that counsel have the expert report for the purposes of holding a pre-trial and setting a date for trial. The justice of the peace adjourned the matter to March 13, 2002 and suggested that the Crown make efforts to accelerate the completion of the expert's report.

[9] On February 19, 2002, the expert's report was provided to the defence and Crown counsel suggested that the defence might wish to bring the trial set date forward. The defence did not do so. On March 13, 2002, the appellant's counsel attended and advised the court that the earliest date that the trial co- ordinator had available was March 6 and 7, 2003. A pre-trial date was set for July 19. Reference was made at this appearance to a strike by [page165] court support services but there is no indication as to how, if at all, it affected the setting of trial dates.

[10] Following this appearance, the appellant retained new counsel, who was unavailable for the pre-trial on July 19, 2002, and it was put over to September 11, 2002. On that date, the previous proposed trial dates of March 6 and 7 were confirmed and, at the request of the defence, the additional date of March 31 was added.

[11] On January 9, 2003, the appellant brought a motion pursuant to s. 11(b) of the Charter. Crown counsel conceded that the delay to the outset of the trial exceeded the normal range suggested by the Supreme Court of Canada. The trial judge commented:

In this jurisdiction, where I have been now for almost 12 years . . . . we are falling further and further behind. We are now probably at a crisis stage in the sense that these 11(b) applications are now coming rather like Lake Erie falls over Niagara Falls. In my judgment and experience, 11(b) applications are a fairly clear identifier of a crisis. If we cannot get an apparently uncomplicated summary conviction matter on for trial within a year of counsel being able to set a trial date, things are in a pretty bad state.

I think if I had only the factor of delay to deal with, although I would have been tempted to issue a stay, I probably would have let the case proceed. However, when I add in two aspects of the specific prejudice to the accused, I am driven inexorably to the conclusion that this charge must be stayed.

[12] The two aspects of specific prejudice found by the trial judge were the impact of the delay on the appellant's health, as articulated in paras. 28-30 of the appellant's affidavit, and to a lesser extent, financial prejudice, as articulated in paras. 18 and 19 of his affidavit. As well, the trial judge regarded "what the College of Chiropractors has done as disclosed in paragraphs 20 and following" of the appellant's affidavit as some evidence of prejudice.

[13] In paras. 28 to 30 of his affidavit, the appellant swore that he had been taking anti-anxiety medication since December 14, 2001 and had begun taking anti-depressants on November 19, 2002. Thus, he began taking anti-anxiety medication approximately a month after he was charged and anti-depressants about a year later or four months before his trial was scheduled to take place.

[14] In paras. 18 and 19 of his affidavit, the appellant swore "As a result of the allegations and subsequent press release . . ." (emphasis added), he had lost 1,464 patient visits from the previous year and that this represented a decrease of approximately 38 per cent of his revenue. He also swore that he would continue to lose clients as long as he was required to have a third-party adult present during his interaction with a female patient until [page166] after the trial of his charge. He could not afford to hire a receptionist, he said, and had to rely on his wife's availability after 4:00 p.m. on weekdays or on Saturdays. In his evidence, the appellant testified that his 2002 income was down approximately $1,000 per month from the previous year. He testified that he was borrowing money to stave off bankruptcy, but could not borrow any more money.

[15] In para. 20 and following of his affidavit, the appellant stated that on February 18, 2002, the same complainant had lodged a written complaint with the College alleging the appellant had sexually assaulted her. The appellant asked the College to delay holding a hearing into the allegations until the resolution of the criminal charge against him. The appellant's request was granted provided he give the undertaking the College requested. The appellant gave the undertaking on September 3, 2002. In it, he undertook to ensure a third party was present during any examination or treatment of female patients. In addition, the female patient had to decide if she wanted a person of her own choosing to be present or a third party of the appellant's choice. Without the requirement to offer female patients a choice as to the third party who was present, the appellant swore "I could have used a student from the College to satisfy the third party requirement and presented the presence of the student as part of an ed ucational process."

[16] At the hearing of the Charter motion, the appellant explained why he had not adopted the approach of having a student present in order to comply with his bail condition between November 2001 and September 2002. He said it was because". . . . they all day there. Also there, also I have to explain. So also I embarrass myself, and also I am suspicious, and also they talk."

[17] In November 2002, the College required a further undertaking, namely that his undertaking signed in September be placed on the public portion of the College's register until his matter had been disposed of by the Discipline Committee.

[18] At this point, it may be helpful to summarize the chronology.

November 15, 2001 Charge laid.

November 16, 2001 Appellant released on bail on consent with condition that another adult be present when he deals with female patients.

November 20, 2001 1st appearance -- adjourned to December 11, 2001. [page167]

December 14, 2001 Appellant begins taking anti-anxiety medication.

December 18, 2001 2nd appearance -- disclosure was available including videotape of complainant's statement. Defence does not want to set trial date until after Crown pre-trial January 9, 2002; adjourned to January 15, 2002.

January 15, 2002 3rd appearance -- defence counsel has not picked up and therefore not viewed videotape; defence learns Crown retaining expert and seeks return date of February 26, 2002. Defence refuses to set trial date until has expert report. Adjourned to February 6, 2002.

February 6, 2002 4th appearance -- expert report still not available, Crown wants to set date; defence refuses; adjourned to March 13, 2002.

February 19, 2002 Expert report provided to defence; Crown asks if defence wants matter brought forward to set earlier date; no response.

February 20, 2002 Complainant lays complaint with College of Chiropractors; appellant asks hearing be delayed until after criminal charges dealt with; College agrees if appellant enters into undertaking.

March 13, 2002 5th appearance -- target trial date set for March 6 and 7, 2003, judicial pre-trial set for July 19, 2002.

July 19, 2002 6th appearance -- judicial pre-trial not held as appellant has retained new counsel who is not available. Adjourned to September 11 for judicial pre-trial.

September 3, 2002 Appellant provides undertaking to College that female patient could decide if wanted third party of her choice present during treatment.

September 11, 2002 7th appearance -- March trial dates confirmed and third day of March 3lst added. [page168]

November 19, 2002 Appellant begins taking anti-depression medication.

November 20, 2002 Appellant required to give further undertaking to College that September undertaking be placed on public portion of the College's register.

January 9, 2003 Charter motion argued, stay granted by Cole J.

March 6, 2003 Original trial date.

The Reasons of the Summary Conviction Appeal Court

[19] On July 7, 2003, the SCAJ overturned the stay. In doing so she stated at para. 17 of her reasons:

I am in accord with the trial judge's finding that the institutional delay, by itself, was not unreasonable.

She observed that in R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771, 71 C.C.C. (3d) 1, the Supreme Court of Canada suggested a rough administrative guideline for institutional delay would be eight to ten months in the trial court. However, those guidelines were not meant to have the force of a judicially developed limitation period. As noted in R. v. Bennett (1991), 1991 2701 (ON CA), 3 O.R. (3d) 193, 64 C.C.C. (3d) 449 (C.A.), at p. 208 O.R., p. 465 C.C.C., affd, 1992 61 (SCC), [1992] 2 S.C.R. 168, 74 C.C.C. (3d) 384, this would "isolate and over-emphasize systemic delay and reduce the concept of reasonableness in s. 11(b) to 'a simplistic computation of time'".

[20] The SCAJ then stated at para. 20:

In any event, in the circumstances here, the stated parameters were not exceeded and the 12 or 12 1/2 month period from the setting of the trial date to its projected conclusion would be classified as acceptable institutional delay. That is not really in dispute.

[21] The SCAJ then articulated the four factors to be weighed in deciding whether a motion under s. 11(b) should be granted, namely: (1) the length of the delay; (2) waiver of time periods; (3) reasons for the delay; and (4) prejudice to the accused.

[22] She held, firstly, that the trial judge's reasons indicated no discussion or analysis of these four factors. At para. 31 of her reasons, she held the appellant:

. . . failed to bring his complaints to the attention of the Crown or the court at an earlier date nor did he attempt to expedite the matter. On the contrary, he refused, through counsel, on at least two occasions, to set a trial date without the expert's report. [page169]

[23] Secondly, she held that the trial judge misapprehended the meaning of prejudice within the context of the s. 11(b) analysis in that he had not differentiated the prejudice associated with the laying of the charge from delay in processing or disposing of the charge.

[24] At para. 30 of her reasons, the SCAJ observed that:

It is evident that within one month of the charge, the respondent was experiencing anxiety and stress for which he began to take medication. It may well be that his symptoms and complaints escalated over time; however, no objective tests, treatment plan or diagnosis has been offered, relating or linking the complaints to any delay.

[25] With respect to the condition that the appellant have another adult person present, the SCAJ cited the note from a physician attached to the affidavit of the appellant to the effect that the recognizance and undertaking had caused him " . . . severe emotional distress, great anxiety and embarrassment, damage to his professional reputation . . . .". She then referred to the appellant's evidence as to why he had not hired a college student that we have quoted above, namely, that he was embarrassed and suspicious they would talk. She concluded "[c]learly, [the appellant's] business losses and his health problems stemmed from the shame and embarrassment resulting from the charge and not from any delay in the proceedings". She also held "[t]here is no evidence of a diminishment of the [appellant's] ability to make full answer and defence".

[26] Thirdly, the SCAJ held the trial judge did not engage in a balancing of the interests of the appellant in a fair and speedy trial with the interests of society in proper law enforcement and in bringing wrongdoers to justice. She stated that he considered the factor of prejudice in isolation and without any indication in his reasons that he balanced society's interest in the trial of a serious charge. She allowed the appeal, lifted the stay and ordered the appellant to stand trial on an expedited basis.

Analysis

Whether the SCAJ Misapprehended the Trial Judge's Reasons Concerning the Length of Institutional Delay

[27] The appellant submits that the SCAJ's statement that the trial judge "found [the institutional delay], in itself, not to be unreasonable" is a misstatement. The trial judge reached no firm conclusion on institutional delay alone. The appellant submits the SCAJ further erred in stating that there really was no issue that the 12 to 12 1/2 month period to trial was "acceptable institutional delay". We agree with the appellant that the trial judge did not find the length of institutional delay acceptable and that the SCAJ erred in this regard. At worst, he did not make a finding on [page170] this issue and his other comments that things are "in a pretty bad state" if an apparently uncomplicated summary conviction matter cannot be brought to trial within a year suggest that he did not consider the institutional delay acceptable.

[28] Although the SCAJ misapprehended the trial judge's reasons in that the trial judge did not hold the institutional delay in this case was "acceptable", the institutional delay in this case of about 12 months did not greatly exceed the eight- to ten-month guideline established in the jurisprudence for matters in the provincial court. As the SCAJ noted, the guidelines should not be given the force of a judicially developed limitation period.

[29] We would make one further comment concerning institutional delay. Beyond conceding that the delay here exceeded the guidelines set out by the Supreme Court, the Crown presented no evidence upon which to adequately analyze whether the delay in the Ontario Court of Justice in this particular region was unreasonable. Cory J.'s comments in R. v. Askov, 1990 45 (SCC), [1990] 2 S.C.R. 1199, 74 D.L.R. (4th) 355, to the effect that "how long is too long" may be resolved by the Crown introducing evidence comparing the jurisdiction in question to the standard maintained by the best comparable jurisdiction in the country were reiterated by Arbour J.A. in R. v. Bennett, supra, at pp. 214-15 O.R., pp. 470-71 C.C.C. Her comments at p. 215 O.R., p. 471 C.C.C. are equally apt, if not more so, in 2004:

What is acceptable systemic delay may vary greatly throughout the province. What is appropriate in one district may not be tolerable in another and what was a reasonable time in 1984 may no longer be so in 1991.

She added at p. 217 O.R., p. 473 C.C.C.:

Acceptable time-limits must thus not only be set locally, but adjusted periodically to reflect the comparative position of that jurisdiction, at that time, to the best similar one in the country.

[30] It might have been helpful had the Crown provided more up to date information. As a result of the Crown's omission, the trial judge measured whether the institutional delay was acceptable solely by reference to his own experience within the jurisdiction. In the circumstances, he was entitled to do so. His comments indicate that this case was not an isolated case.

Whether the SCAJ Erred by Substituting Her Views as to Prejudice for Those of the Trial Judge, and Whether the SCAJ Erred in Holding the Appellant at Fault for Not Expediting the Matter.

[31] The appellant submits that the SCAJ substituted her views as to prejudice for those of the trial judge and did not give his conclusion the deference to which it was entitled. [page171]

[32] There is a difference between prejudice arising from merely being charged with a criminal offence and prejudice arising from delay. In dealing with the appellant's submission it is helpful to briefly review the distinction. In R. v. Rahey, 1987 52 (SCC), [1987] 1 S.C.R. 588, 39 D.L.R. (4th) 481, Wilson J. stated at p. 624 S.C.R. that:

[T]he impairment or prejudice we are concerned with under s. 11(b) is the impairment or prejudice arising from the delay in processing or disposing of the charges against an accused and not the impairment or prejudice arising from the fact that he has been charged. The prejudice arising from the fact of being charged with a criminal offence is suffered even where the accused is tried within a reasonable time. It is, so to speak, inherent in the system itself. I agree with Lamer J., however, that that prejudice must be kept to a minimum by a speedy disposition of the charges against the accused. If this is not done, then the degree of prejudice will exceed that which is the inevitable concomitant of the system and be directly attributable to the delay under s. 11(b).

[33] The focus of prejudice under s. 11(b) is the prejudice flowing from a situation "prolonged" by delay rather than the mere fact of being charged with a criminal offence: Bennett, supra, at p. 222 O.R., p. 478 C.C.C. In R. v. Silveira, [1998] O.J. No. 1622, 35 M.V.R. (3d) 30 (Gen. Div.), Hill J. clarified at para. 53, that "[t]he shame of disclosure to family, the expense of defending criminal charges, and the like, arise from the laying of the criminal charge itself and not from delay to trial". He accepted, however, that the delay to trial beyond the guidelines prolongs an accused's shame and increases his or her anxiety. Thus, what was initially prejudice from being charged may become prejudice caused by institutional delay due to a delay beyond the guidelines.

[34] The trial judge referred to Silveira, and was clearly aware of the distinction between prejudice from delay and prejudice from the charge. However, we agree with the SCAJ that the trial judge misapprehended the evidence of prejudice. The appellant's affidavit, on which the trial judge relied in holding that there had been specific prejudice to him financially, states at para. 18 that "[a]s a result of the allegations and subsequent press release, my practice has suffered extreme financial pressures" (emphasis added). Initially at least this was prejudice from being charged. As the SCAJ pointed out at para. 34 of her reasons, the appellant testified that he chose not to have a student from the College present when he examined a female patient due to his embarrassment at being charged and his suspicion that the student would talk about him. This is also prejudice from the charge.

[35] We now turn to the second aspect of specific prejudice alleged, namely, the effect of institutional delay on the appellant's health. The fact the appellant began taking anti- anxiety medication one month after being charged, as noted by the SCAJ, [page172] would also be prejudice as a result of being charged. No delay in disposing of the charge had yet occurred so the prejudice arising from the appellant's anxiety could not be attributable to that. However, given the evidence that the appellant's condition worsened and he began taking anti-depressants in November 2002, the trial judge's finding that there was prejudice from the institutional delay affecting the appellant's health was a finding that was open to him to make. See R. v. Christie (2001), 2001 NSCA 147, 160 C.C.C. (3d) 192, 197 N.S.R. (2d) 398 (C.A.). The SCAJ erred in not giving this finding deference and in holding that all of the prejudice to the appellant's health was the result of being charged.

[36] The appellant takes issue with the SCAJ's comments that it was the responsibility of the appellant to bring his complaints concerning the onerous bail condition and the undertaking required by the College to the attention of the Crown or the court at an earlier date and also that he did not attempt to expedite the matter. In support of his position, the appellant relies on the decision of the Supreme Court of Canada in R. v. Sharma, 1992 90 (SCC), [1992] 1 S.C.R. 814, 71 C.C.C. (3d) 184, at p. 815 S.C.R., p. 196 C.C.C., to the effect that restrictive bail conditions can lead to prejudice that increases with delay. The appellant also relies on the decision of Sopinka J. in Morin, to the effect that it is the duty of the Crown to bring an accused to trial and there is no obligation on an accused to press for a trial.

[37] In our view, the SCAJ did not err. While it is the duty of the Crown to bring the accused to trial, in considering the impact of specific prejudice the court will take into account the accused's conduct during the period. Some forms of prejudice such as incarceration pending trial are obvious. Others, such as whether a particular bail condition is an onerous one or whether an accused's health is suffering due to institutional delay, are not so readily apparent. As Arbour J.A. pointed out at p. 222 O.R., p. 478 C.C.C. of Bennett, supra:

[I]f an accused is being prejudiced by delay in a less apparent way, he or she must bear the responsibility for taking the initiative in alleviating that prejudice.

This, in my view, is not inconsistent with the proposition that an accused need not assert his s. 11(b) right. An accused who claims prejudice, beyond the prejudice common to most accused and inferred from any delay, is claiming an entitlement to a speedier trial than other accused in apparently similar circumstances. The only way for the system to accommodate that claim is to hear it expressed. There comes a point, in my opinion, where an accused who is suffering a special prejudice from the delay of his trial must bring his or her plight to the attention of the prosecuting authorities and the courts.

(Emphasis added) [page173]

[38] The appellant did not bring his plight to the attention of the prosecuting authorities and the courts until the motion respecting s. 11(b) was brought in January 2003. He had numerous opportunities to do so, such as when the original trial date was set in March 2002 and at the September 11, 2002 pre-trial. He also failed to take advantage of the offer by Crown counsel to bring the case forward to set a trial date. The SCAJ did not err in taking into consideration the fact that the appellant did not take any steps to try and alleviate the special prejudice by bringing the matter to the attention of the courts so that an earlier date might have been set. On this record, we do not know whether earlier dates would have been available. However, the burden of proving a Charter violation was on the appellant. Any action or inaction on the part of an accused that is inconsistent with a desire for a timely trial is relevant to the assessment of prejudice: R. v. MacDougall, 1998 763 (SCC), [1998] 3 S.C.R. 45, 128 C.C.C. (3d) 483, at para. 58.

[39] As Sopinka J. said in Morin at p. 808 S.C.R., p. 28 C.C.C., the court may take account the accused's own inaction in assessing prejudice. An accused person's inaction could mean that the accused was "content with the pace at which things were proceeding and that therefore there was little or no prejudice occasioned by the delay".

[40] Finally, as the SCAJ noted, the appellant's fair trial interest was not affected.

Whether the SCAJ Erred in Holding That The Trial Judge Did Not Engage in a Proper Analysis of the Factors Required in Determining Unreasonable Delay

[41] The SCAJ held that the trial judge erred because " . . . he failed to engage in the required balancing of interests or to consider the serious nature of the sexual assault charge and society's interest in bringing the charge to trial".

[42] In his reasons, the trial judge did not specifically advert to the requirement that he balance the public interest in having the appellant tried with the appellant's right to be tried in a reasonable time. The SCAJ inferred that he failed to balance their interests especially in light of trial judge's failure to explicitly deal with the Morin factors. There is a legal presumption that judges are presumed to know the law with which they work on a daily basis. See R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, 162 C.C.C. (3d) 298, at para. 54. However, judges are expected to state their conclusions on the main issues at least briefly: Sheppard, supra, at para. 33. In this case, the trial judge circumnavigated, without [page174] explanation, the sometimes conflicting interests of the appellant and society. Our concern at this omission is exacerbated by the fact that the trial judge did not properly assess the majority of the evidence pertaining to the issue of prejudice. Th e SCAJ explicitly engaged in the balancing process but inasmuch as she too erred in assessing the prejudice to the appellant it falls to us to decide whether the stay should be lifted. We will return to the matter of balancing at the conclusion of these reasons.

[43] Although the focus of the trial judge was almost exclusively on the questions of prejudice and institutional delay, to determine whether the delay was unreasonable it is necessary to consider all of the factors. We will do so briefly.

(1) The length of delay

[44] The period of 16 months from the date of charge to the target trial date was, as conceded by the Crown, sufficiently long to require investigation.

(2) Waiver of time periods

[45] Neither the trial judge nor the SCAJ found that the appellant had waived any time periods. Given the high standard for waiver, we see no reason to disagree. However, that does not mean that the conduct of the appellant is not to be considered, especially as it may impact on the claim of prejudice. We will do so below.

(3) The reasons for the delay

(a) Inherent time requirements

[46] The charge in this case was laid on November 15, 2001. The court did not set a trial date until March 13, 2002. This is a period of four months. While the trial judge referred to this as an uncomplicated summary conviction matter, we have some concern with this characterization. This was an allegation of sexual assault by a health care provider and the Crown intended to call expert evidence. More importantly, it is apparent that the appellant did not consider this period unreasonable. He was given three opportunities to set a trial date before March 13, 2002 but refused to do so. By January 15, 2002, disclosure was available, but some had not yet been picked up. All that was outstanding was the expert report. Rather than setting a trial date, counsel sought an adjournment of almost six weeks to February 26, 2002 because he had not yet viewed the videotape. On February 6, 2002, the Crown asked that a trial [page175] date be set but counsel for the appellant refused because the expert report was not available. There is no reason to think that at least at this stage the appellant was not content with the pace of proceedings.

[47] Something should be said about counsel's refusal to set a date because the expert report was not available. The Crown is obliged to make initial disclosure before the accused is called upon to plead or to elect the mode of his trial. See the comments of Sopinka J. in R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326, 68 C.C.C. (3d) 1, at pp. 342-43 S.C.R., pp. 13-14 C.C.C. In this case, since the Crown had elected to proceed summarily, election of the mode of trial was not an issue. Having regard to the length of time before trial, the appellant's counsel knew the expert's report would be completed many months before the appellant had to plead and the appellant would have had ample time to obtain his own expert's report had he wished to do so. Also, because the obligation of the Crown to make disclosure is a continuing one, the Crown is not obliged to disclose every last bit of evidence before a trial date is set. The defence was not forfeiting its "Stinchcombe rights" by agreeing to set a tri al date. Counsel for the appellant did not act reasonably in insisting that he receive the expert report before setting a trial date.

(b) Actions of the accused

[48] In Morin at p. 793 S.C.R., p. 17 C.C.C., Sopinka J. explained how actions of the accused, short of waiver, are to be taken into account:

This aspect of the reasons for the delay should not be read as putting the "blame" on the accused for certain portions of delay. There is no necessity to impute improper motives to the accused in considering this factor. Included under this heading are all actions taken by the accused which may have caused delay. In this section I am concerned with actions of the accused which are voluntarily undertaken. Actions which could be included in this category include change of venue motions, attacks on wiretap packets, adjournments which do not amount to waiver, attacks on search warrants, etc.

(Emphasis added)

[49] After referring to the decision in R. v. Conway, 1989 66 (SCC), [1989] 1 S.C.R. 1659, 49 C.C.C. (3d) 289, Sopinka J. held that actions of the accused that contribute to the delay"must therefore be taken into consideration in determining whether the overall delay suffered by the accused was reasonable". Accordingly, we take into account the two adjournments requested by the appellant on January 15th and February 6th in determining whether the overall delay was reasonable. [page176]

(c) Actions by the Crown

[50] It was not suggested that any actions by the Crown, such as adjournment requests, contributed to the delay. To the contrary, the record tends to show that it was the Crown that was interested in proceeding with the trial and the appellant who was content with the more leisurely pace, at least in the early part of 2002.

(d) Limits on institutional resources (institutional delay)

[51] The institutional delay in this case of 12 months is cause for concern especially if, as noted by the trial judge, such delays are becoming chronic in his jurisdiction. Twelve years ago in R. v. Morin at p. 798 S.C.R., p. 21 C.C.C., Sopinka J. suggested guidelines for institutional delay in the provincial courts:

In this case we are dealing with the Provincial Court. The suggested period of institutional delay ranges from 6 to 10 months. The respondent suggests that 8 to 10 months of purely systemic delay would not be unreasonable in the Provincial Court. It admits, however, that it is aiming at institutional delay of no more than six to eight months in Provincial Court. Arbour J.A. in Bennett, supra, suggests "a delay of 8 1/2 to 9 months in getting a case to trial in the Provincial Court, although not a model of brevity, is not outside the range of reasonableness" (p. 474).

In Askov, Cory J., after reviewing comparative statistics, suggested that a period in the range of 6 to 8 months between committal and trial would not be unreasonable. Based on the foregoing, it is appropriate for this Court to suggest a period of institutional delay of between eight and 10 months as a guide to Provincial Courts.

(Emphasis added)

[52] On this record, we see no reason to depart from the eight- to ten-month guideline set in Morin, bearing in mind that this should not be taken as a judicially created limitation period. Naturally, we are concerned that 12 years after Morin the Crown's aim of reducing this period to no more than six to eight months is apparently unfulfilled in some busy jurisdictions. As we have suggested at para. 30, it might have been helpful had the Crown provided more up to date information. In any event, the 12 months of institutional delay does not greatly exceed the eight- to ten-month guideline.

(e) Other reasons for delay

[53] There was no suggestion that there were other reasons for delay that needed to be taken into account.

(4) Prejudice to the accused

[54] In considering the impact of prejudice, especially inferred prejudice, the court is entitled to take into account the actions of [page177] the accused. In Morin at p. 802 S.C.R., p. 24 C.C.C., Sopinka J. held as follows:

Action or non-action by the accused which is inconsistent with a desire for a timely trial is something that the court must consider. This position is consistent with decisions of this court in regard to other Charter provisions. . . . Nonetheless, in taking into account inaction by the accused, the Court must be careful not to subvert the principle that there is no legal obligation on the accused to assert the right. Inaction may, however, be relevant in assessing the degree of prejudice, if any, that an accused has suffered as a result of delay.

[55] As we have said, the actions and inaction by the appellant in the early months of 2002 suggest that the degree of prejudice was not significant. This is important in assessing the degree of prejudice because, as we have said, much of the prejudice suffered by the appellant was the result of the charge being laid, not the delay. We accept the trial judge's finding, however, that at some point the increasing delay was impacting on the appellant's health. Certainly, by November 19, 2002, when the appellant had to resort to anti- depression medication, the delay was beginning to take a toll.

[56] We also think there was some financial prejudice from the delay. By September the appellant was coming under increased pressure because of the further undertaking he was required to give to the College [See Note 1 at the end of the document]. It would be reasonable to assume that the appellant was feeling increased financial pressure. Unfortunately, the appellant made no attempt to quantify the pressure resulting from the initial charging and the continued delay other than his estimate that he was losing $1,000 per month because of the charges. The most reasonable view of the record is that the appellant was suffering special financial prejudice by September 2002 and increased prejudice to his health because of the delay by mid-November 2002. There is no suggestion that the appellant's ability to make full answer and defence was affected by the delay.

(5) Balancing the interests

[57] Section 11(b) is framed in terms of reasonableness. As noted, the courts have refrained from creating limitation periods [page178] within which certain types of cases must be tried lest the judicial guillotine descend in the form of a stay of proceedings. This inevitably requires the trial court to exercise judgment, having regard to the factors enumerated in Morin. In Morin at p. 787 S.C.R., p. 13 C.C.C., Sopinka J. described the exercise in these terms:

The general approach to a determination as to whether the right has been denied is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay. As I noted in Smith, supra [R. v. Smith (1989), 52 C.C.C. (3d) 97]"[i]t is axiomatic that some delay is inevitable. The question is, at what point does the delay become unreasonable?" (p. 105).

[58] The interests involved do not just include the accused's liberty and security interests and his or her interest in a fair trial. There are societal interests in ensuring that an accused is tried within a reasonable time, to minimize the prejudice to accused and ensure they are treated humanely and fairly (Morin at p. 786 S.C.R., p. 12 C.C.C.). But, there is also a societal interest in ensuring that accused are tried on their merits. As Sopinka J. said at p. 787 S.C.R., p. 13 C.C.C. of Morin"As the seriousness of the offence increases so does the societal demand that the accused be brought to trial."

[59] In this case, we have 16 months' delay from the date of the charge to the target trial date. To quote Sopinka J. in Morin at p. 803 S.C.R., p. 25 C.C.C., such a period "can hardly be described as a model of dispatch" but like the 141/2 months in Morin may be excused in suitable circumstances. Of the 16 months, four months is neutral being properly considered part of the inherent time requirements. During that time, the appellant had several opportunities to speed up the proceedings but either sought to prolong them or took no action in the face of a Crown request for earlier action.

[60] The institutional delay of 12 months exceeded, but just barely, the eight- to ten-month guideline set out in Morin.

[61] The appellant has established that he suffered special prejudice above that which can be normally inferred from delay. However, that special prejudice seems to have crystallized around September to November 2002, and the appellant took no steps to bring his plight to the court so that an earlier trial date might have been obtained.

[62] Having regard to these factors, we are satisfied that the SCAJ properly set aside the stay of proceedings. By the time the appellant was suffering significant prejudice attributable to the delay, the trial was only four months away. Had the appellant [page179] taken steps early in the proceedings to set a trial date instead of taking an unreasonable position respecting disclosure, his trial date could have been set at least two months earlier. Considering the overall period of time and the seriousness of the offence, an allegation of sexual assault and thus breach of trust, by a health care provider on a patient, we are satisfied that s. 11(b) was not infringed.

Disposition

[63] Accordingly, we would dismiss the appeal.

Appeal dismissed.

Notes

Note 1: In this case, we do not think it is helpful or even possible to attempt to segregate the prejudice from the delay in prosecuting the criminal case and the impact of the disciplinary proceedings. Not unreasonably, the appellant sought to delay the disciplinary proceedings until after the criminal charge was disposed of and so the two became inextricably tied together. The bail condition initially imposed was similar to the first undertaking the appellant had to give to the College.