DATE: 2004-12-09

DOCKET: C41094

COURT OF APPEAL FOR ONTARIO

DOHERTY, CRONK and JURIANSZ JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Mary-Ellen Hurman, for the appellant

Appellant

• and -

WILLIAM SEEGMILLER

J. Brennan Smart, for the respondent

Respondent

Heard: November 18, 2004

On appeal from the order of Justice C. S. Glithero of the Superior Court of Justice dated November 19, 2003, granting a stay of a charge of sexual assault, reported at [2003] O.J. No. 5411.

CRONK J.A.:

I. Overview

[1] The respondent William Seegmiller was charged with sexual assault. It was alleged that he raped a young woman who attended a party at his home. The Crown contended that the complainant passed out after she had too much to drink and awoke to find Seegmiller raping her.

[2] Unfortunately, there was a delay of about 7 months in moving this case to trial occasioned by late Crown disclosure. However, as matters stand at present, there will never be a trial on the merits. The trial judge held that despite no real prejudice to Seegmiller flowing from the delay, Seegmiller’s right to trial within a reasonable time had been denied, necessitating a stay of proceedings.

[3] With respect, I think that the trial judge erred in so holding. Accordingly, for the reasons that follow, I would set aside the stay and direct that the matter proceed to trial.

II. Background

[4] Seegmiller was arrested on October 26, 2001 and released on his promise to appear. An information charging him with sexual assault was sworn on December 3, 2001. He was before the court for his first court appearance in mid-December 2001. By that time, various urine, blood and sexual assault kit samples had been sent to the Centre of Forensic Sciences (the “CFS”) in Toronto for testing. A CFS toxicology report concerning alcohol analysis of certain of the samples had also been completed and mailed to the police and the Crown, although it was not then provided to the defence. On December 12, 2001, Seegmiller’s case was adjourned until February 1, 2002.

[5] Within days, Seegmiller’s counsel requested disclosure of various documents from the Crown, including the results of any CFS examinations concerning evidence of sexual intercourse or alcohol consumption. Subsequently, Seegmiller’s case was adjourned until early April 2002 and a judicial pre-trial was conducted. On April 5, 2002, the parties sought to set a date for Seegmiller’s preliminary inquiry. The earliest dates available through the court offices were October 30 and 31, 2002 and those dates were fixed.

[6] By mid-October 2002, Seegmiller’s counsel had made at least two additional disclosure requests of the Crown. Although the precise date of the Crown’s disclosure of the CFS toxicology and biology reports is in dispute, it appears that disclosure of most, although not all, of the test results was made on October 28, 2002, two days prior to the scheduled commencement of the preliminary inquiry. On October 30, 2002, because of the late and incomplete disclosure by the Crown, the defence obtained an adjournment of the preliminary inquiry. The first available date for the re-scheduling of the inquiry was April 28, 2003.

[7] The outstanding Crown disclosure was made in the spring of 2003 and the preliminary inquiry commenced on April 28, 2003. It continued intermittently until completion on June 16, 2003, when Seegmiller was committed to stand trial. Thereafter, a judicial pre-trial was held in the Superior Court of Justice in mid-August 2003 and, on August 29, 2003, trial dates were set for January 26 to 30, 2004.

[8] On November 3, 2003, Seegmiller’s counsel applied for a stay of proceedings pursuant to s. 24(1) of the Charter of Rights and Freedoms, arguing that Seegmiller’s right to trial within a reasonable time under s. 11(b) of the Charter had been breached by delay. By order dated November 19, 2003, the applications judge granted the stay application, reasoning as follows (at para. 60):

The period of delay that is relevant to the determination of this s. 11(b) application is that which occurred from April 5, 2002, when the parties were ready for a preliminary hearing, through to June 16, 2003, when the preliminary hearing was completed. That period of fourteen and one-half months is outside the guideline suggested as being acceptable by the Supreme Court of Canada in Morin [R. v. Morin (1992), 1992 89 (SCC), 71 C.C.C. (3d) 1 (S.C.C.)] and is outside what is reasonable in this community. The length of that period was the result of the adjournment of the preliminary hearing on October 30, 2002 by reason of the late and incomplete disclosure. In my opinion the period from October 30, 2002 through to June 16, 2003 is partially attributable to the actions of the Crown or those at the CFS for whom the Crown is responsible, and is partly institutional delay by reason of the inability of the system to provide sufficient resources to effect a timely completion of the case once it was adjourned [citation added].

III. Discussion

[9] The right of an accused to be tried within a reasonable time is enshrined in s. 11(b) of the Charter. Section 11(b) is designed to protect both the individual rights of an accused and the rights of society. The societal rights protected by s. 11(b) include the community’s interests in law enforcement by having those who break the law tried quickly and in having those accused of crime dealt with fairly: R. v. Qureshi, 2004 40657 (ON CA), [2004] O.J. No. 4711 (Ont. C.A.)

[10] In Morin, supra, the Supreme Court of Canada held that the assessment of whether an accused’s s. 11(b) right to be tried within a reasonable time has been infringed involves the balancing of the interests that s. 11(b) is designed to protect against “the factors which inevitably lead to delay or are otherwise the cause of delay” (at p. 13). This balancing exercise permits a judicial analysis as to whether the delay experienced in a particular case is constitutionally unreasonable.

[11] The relevant period to be considered in this ‘reasonableness’ analysis is the time from the date of the charge against the accused to the date of the end of the trial. Four factors are critical: (1) the length of the delay; (2) any waiver by the accused of time periods; (3) the reasons for the delay; and (4) any prejudice to the accused: Morin at p. 13. See also R. v. Smith (1989), 1989 12 (SCC), 52 C.C.C. (3d) 97 (S.C.C.) at 105-6; R. v. Askov (1990), 1990 45 (SCC), 59 C.C.C. (3d) 449 (S.C.C.) at 483-4; and Qureshi at paras. 10 to 14.

[12] In this case, the first two factors are not in issue. The overall period of delay is the 27 months elapsed from October 26, 2001 (when Seegmiller was arrested) to the end of January 2004 (the scheduled date for his trial). On the return of the stay application, the Crown acknowledged, and the applications judge accepted, that the delay was sufficient to warrant judicial examination. In addition, after an extensive review of the procedural history of this matter and the actions of the Crown and Seegmiller prior to the stay application, the applications judge concluded that Seegmiller had not waived his s. 11(b) rights. This finding is uncontested.

[13] Accordingly, the factors in play on this appeal are the reasons for the delay in bringing Seegmiller to trial and any prejudice to him occasioned by the delay. Both were considered by the applications judge in his thoughtful and thorough reasons.

(i) Reasons for the Delay

[14] The interval between October 26, 2001, when Seegmiller was arrested, and October 30, 2002, his first preliminary inquiry date, involved various inherent time requirements necessary to process Seegmiller’s case through the criminal justice system (October 2001 to April 5, 2002) and, thereafter, a further 7 month delay before the preliminary inquiry could commence because the system could not accommodate an earlier date for the inquiry. The applications judge held that this intake period and the subsequent period of institutional delay in scheduling the preliminary inquiry were not unreasonable when measured against the guidelines articulated in Morin for use by the courts in assessing delay. I agree.

[15] However, the post-October 2002 delay in the conduct of the preliminary inquiry was of a different character. It arose from the Crown’s failure to make timely and adequate disclosure prior to October 30, 2002. As a result, the defence obtained a 6 month adjournment of the preliminary inquiry, with a new commencement date set for April 28, 2003. The applications judge concluded that the Crown must be assigned responsibility for the fact that the preliminary inquiry did not proceed as originally scheduled. Again, I agree.

[16] The Crown does not contest that the defence was entitled to an adjournment of the inquiry. Instead, Crown counsel asserts that part of the delay caused by the adjournment should be attributed to the defence because defence counsel sought the adjournment in order to consult one or more experts regarding the CFS documents then disclosed by the Crown.

[17] This contention must be rejected. The adjournment request was reasonable given the Crown’s late and incomplete disclosure of the CFS documents. The defence was also entitled to seek expert advice concerning the CFS documents prior to proceeding with the preliminary inquiry. Because of the adjournment, Seegmiller’s case remained ‘in the system’, awaiting a preliminary inquiry, for about 6 months longer than otherwise would have applied, had timely disclosure been made. Ultimately, as observed by the applications judge, the combined effect of institutional delay factors and the loss of the original preliminary inquiry date resulted in a delay of approximately 14.5 months from the time when the parties first sought a preliminary inquiry date (April 5, 2002) to the date when Seegmiller was committed for trial (June 16, 2003). It is this period of delay that the trial judge found to be unreasonable.

(ii) Prejudice

[18] As this court recently outlined in Qureshi at para. 14, two kinds of prejudice are relevant on a s. 11(b) delay challenge: first, the court may infer prejudice from the delay itself and is more likely to do so the longer the delay (however, action or inaction by an accused that indicates a desire to avoid a trial on the merits may negate such an inference); second, the accused or the Crown may lead evidence to establish either the existence or the absence of actual prejudice: see also Morin at pp. 23-4 and R. v. Kovacs-Tatar, 2004 42923 (ON CA), [2004] O.J. No. 4756 (Ont. C.A.) at para. 38.

[19] There is no suggestion here that the defence sought to avoid or delay a trial on the merits. To the contrary, notwithstanding the late disclosure by the Crown of the CFS test results, Seegmiller’s counsel agreed to commence the preliminary inquiry on October 30, 2002 with the evidence-in-chief of the complainant, on the understanding that cross-examination of the complainant would be conducted following the adjournment and subsequent continuation of the inquiry. Counsel then consulted with the trial co-ordinator and ascertained that April 28, 2003 was the first available date for the continuation of the inquiry. Thus, the adjournment itself was necessitated by the actions of the Crown, and the inability to secure an early suitable continuation date was attributable to institutional factors, rather than to the defence.

[20] The applications judge recognized that prejudice to an accused can be inferred as the result of a long delay. However, he concluded that the prejudice to Seegmiller caused by the delay in bringing him to trial was “not deserving of great weight”. This finding is amply supported by the evidence and is not seriously challenged by Seegmiller in this proceeding: Seegmiller was not incarcerated pending trial; his bail conditions were not onerous and were varied on several occasions at his request; and there was no evidence that his ability to make full answer and defence was impaired by the delay. Indeed, the only asserted negative impact of the delay on Seegmiller was social embarrassment arising from occasional police inquiries concerning his suspected contravention of his bail term that prohibited his consumption of alcohol. This prohibition was deleted as a condition of Seegmiller’s bail early in 2003. Accordingly, the prejudice to Seegmiller occasioned by pre-trial delay was minimal, at most.

(iii) Striking the Balance

[21] As I have mentioned, although the primary purpose of s. 11(b) is the protection of an accused’s individual rights, s. 11(b) also engages the interests of Canadian society as a whole. In Morin, Sopinka J., writing for a majority of the Supreme Court of Canada, described the nature of these societal interests in these terms (at pp. 12-13):

Society as a whole has an interest in seeing that the least fortunate of its citizens who are accused of crimes are treated humanely and fairly. In this respect trials held promptly enjoy the confidence of the public. …

In Conway [R. v. Conway, 1989 66 (SCC), [1989] 1 S.C.R. 1659], a majority of this court recognized that the interests of the accused must be balanced by the interests of society in law enforcement. This theme was picked up in Askov in the reasons of Cory J. who referred to “a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law” (p. 474) [citation added].

[22] The Supreme Court also emphasized in Morin at p. 13, “As the seriousness of the offence increases so does the societal demand that the accused be brought to trial.”

[23] The applications judge alluded in his reasons to the need to balance society’s interests against the individual rights of an accused under s. 11(b) of the Charter. Contrary to the Crown’s contention that he failed to take into account the gravity of the offence charged and the need for the matter to be dealt with on its merits, the applications judge correctly noted the seriousness of the charge faced by Seegmiller.

[24] However, the applications judge failed to factor the heightened societal interest in a trial on the merits, given the very serious nature of Seegmiller’s alleged crime, into his balancing of the interests protected by s. 11(b) of the Charter. This was an error in principle. In accordance with the principles articulated in Morin, the gravity of the offence of sexual assault, by itself, increased society’s interest in ensuring that Seegmiller was brought to trial.

[25] Where the nature of the allegation establishes a heightened societal interest in a trial on the merits, the absence of prejudice (particularly to the accused’s fair trial interests) takes on added significance in the s. 11(b) calculus. The applications judge found that the suggested prejudice to Seegmiller was deserving of little weight, but failed to appreciate the significance of that assessment in a case like this one, where the societal interest in a trial on the merits is high. The applications judge also observed that “the degree of prejudice to the accused is not such as to require that the period of acceptable delay be shortened”. This observation correctly recognizes that real prejudice can shorten the period of acceptable delay in a proper case; however, it fails to also recognize that the absence of meaningful prejudice can lengthen the period of delay that is constitutionally tolerable. I agree with the Crown’s submission that the applications judge failed to appreciate how the lack of real prejudice to Seegmiller impacted on the requisite s. 11(b) analysis. This is reversible error.

(iv) Reasonableness of the Delay

[26] The determination of what constitutes a ‘reasonable’ time for trial under s. 11(b) of the Charter is fact driven and case specific. Accordingly, the weight to be attached to the governing factors in assessing the ‘reasonableness’ of delay and in balancing the sometimes competing interests protected by s. 11(b) will vary from case to case. Not every pre-trial delay will constitute unreasonable delay for constitutional purposes.

[27] The applications judge found that Seegmiller’s ability to make full answer and defence to the serious charge against him was not impaired by delay. As well, on the record before this court, there is no suggestion that trial fairness will be compromised should a trial proceed.

[28] As I have said, Seegmiller experienced little prejudice from the delay in bringing him to trial. The degree of prejudice is an important factor in determining the length of institutional delay that will be tolerated. Although the Supreme Court in Morin approved an administrative guideline of 8 to 10 months for use by the courts in assessing institutional delay in trial courts, Sopinka J. stated that “deviations of several months in either direction can be justified by the presence or absence of prejudice” (at p. 28). In addition, administrative time guidelines, such as those described in Morin, are not intended to “reduce the concept of reasonableness in s. 11(b) to a simplistic computation of time”: R. v. Bennett (1991), 1991 2701 (ON CA), 64 C.C.C. (3d) 449 (Ont. C.A.) at 465; affirmed 1992 61 (SCC), [1992] 2 S.C.R. 168.

[29] In this case, 7 months institutional delay occurred in the scheduling of Seegmiller’s original preliminary inquiry date (April to October 2002). Thereafter, the preliminary inquiry was adjourned due to the Crown’s late disclosure. Following that adjournment, the judicial system could not accommodate another inquiry date for 6 months (October 2002 to April 2003). In the circumstances of this case, where no real prejudice was experienced by the respondent, the institutional delay components of these delay periods do not offend the guidelines identified in Morin. Thereafter, a period of 7 months notional institutional delay occurred from the time that Seegmiller was committed for trial (June 2003) to the target date for his trial (January 2004). This delay, occasioned by institutional factors, is within the range of 6 to 8 months suggested in Askov and described in Morin as acceptable for institutional delay after committal for trial.

[30] Based on all these factors, I conclude that the overall delay in this case, although clearly not desirable, was not unreasonable and that s. 11(b) was not infringed. Sopinka J.’s cautionary words in Morin at p. 24 bear repetition: “The purpose of s. 11(b) is to expedite trials and minimize prejudice and not to avoid trials on the merits.” A proper balancing of Seegmiller’s s. 11(b) right to be tried within a reasonable time against the strong societal interests in ensuring that he is tried for the offence charged demands that the stay be set aside and a trial be held.

IV. Disposition

[31] I would allow the appeal, set aside the stay of proceedings and direct that the matter proceed to trial. The court co-ordinator should schedule an early trial date.

RELEASED:

“DD” “E.A. Cronk J.A.”

“DEC –9 2004” “I agree Doherty J.A.”

“I agree R.G. Juriansz”