Her Majesty the Queen v. Kporwodu et al. [Indexed as: R. v. Kporwodu]
75 O.R. (3d) 190
[2005] O.J. No. 1405
Docket: C40276
Court of Appeal for Ontario,
Moldaver, Gillese and Juriansz JJ.A.
April 15, 2005
Charter of Rights and Freedoms -- Trial within reasonable time -- Two accused being charged with first-degree murder in death of their child -- Trial being delayed for approximately two years because of failings of pathologist who performed autopsy on deceased -- Trial judge erring in including pre- charge delay in his s. 11(b) analysis as remedy for violation of parents' rights under ss. 7 and 11(d) of Charter occasioned when child's body was cremated instead of being preserved for second autopsy -- Remains being in control of parents and crematorium and not in control of any state actors at time of cremation -- Trial judge not being entitled to include pre-charge delay for s. 11(b) purposes even if violations of ss. 7 and 11(d) were made out -- Accused suffering actual prejudice to their liberty and security interests as result of delay -- Total delay of 55 months (in case of father) and 42[cents] months (in case of mother) violating s. 11(b) of Charter -- Canadian Charter of Rights and Fr eedoms, s. 11(b).
K and V were charged with murdering their three-month-old daughter. K was originally charged with manslaughter on May 3, 1999, 14 months after the child's death. In July 1999, S, the pathologist who performed the 1998 autopsy on the deceased, verbally informed the Crown and police for first time that he believed that an injury to the child's liver, observed during his autopsy, likely occurred within 12 hours of death. If accurate, this provided grounds for elevating the [page191] charge against K to second-degree murder and charging V with second-degree murder. S was asked to provide written confirmation. He did so eight and a half months later. The accused were charged with second-degree murder in May 2000.
The preliminary inquiry began on January 15, 2001. Before S was called as a Crown witness, two unrelated murder prosecutions were withdrawn at the request of the Crown; both involved the death of children and in each case, S was the pathologist who performed the autopsy. The withdrawal of the charges was linked directly to the unreliability of S's autopsy findings. The Coroner's Office commenced an internal review of certain homicide cases involving S. The Crown sought an adjournment of the preliminary inquiry to obtain an independent review of S's autopsy report. Over defence counsels' objections, the preliminary hearing was adjourned to November 5, 2001. The independent review was delivered to the Crown and disclosed to the defence in September 2001.
The preliminary hearing resumed on November 5 and concluded in January 2002, with the accused being committed to stand trial on charges of second-degree murder. The Crown ultimately preferred an indictment against the accused, alleging first- degree murder. The trial commenced on October 28, 2002. The accused brought a motion for production of documents in the possession of the Coroner's Office relating to its review of files involving S. The Crown moved to quash the subpoenas relating to this motion. The trial judge ordered the Coroner's Officer to produce 17 criminal autopsy files to the Crown for disclosure to the accused. The trial judge dismissed the request of the Coroner's Office for a stay of the production order, pending an application for leave to the Supreme Court of Canada. In his ruling, he made findings that impugned the professional integrity of counsel for the Coroner and Crown counsel.
A new Assistant Crown Attorney and new counsel for the Coroner's Office appeared, and an adjournment was granted. The trial resumed on April 7, 2003. The accused brought an application for a stay of proceedings on the basis that their rights under s. 11(b) of the Canadian Charter of Rights and Freedoms to be tried within a reasonable time was violated. The trial judge granted the application. In concluding that K and V's s. 11(b) rights had been violated, the trial judge included the period of pre-charge delay in his calculation as a remedy for a separate breach of their rights under ss. 7 and 11(d) of the Charter resulting from the cremation of the child's remains in May 1998. According to the trial judge, the ss. 7 and 11(d) breaches consisted of "unacceptable negligence" on the part of the police and the Deputy Chief Coroner in failing to preserve the remains, despite knowing that the accused might wish a second autopsy. The Crown appealed the s tay of proceedings.
Held, the appeal should be dismissed.
The trial judge erred in including the period of pre-charge delay in his s. 11(b) analysis. As the child's remains were still in the control of the accused and the crematorium when the cremation occurred, it was wrong of the trial judge to blame the police, the Deputy Chief Coroner or S for the failure to preserve the remains. There was no unacceptable negligence on the part of the state actors. Even if the state was unacceptably negligent in failing to preserve the remains, the trial judge was not entitled to include pre-charge delay for s. 11(b) purposes as a remedy for a breach of s. 7 or s. 11(d) of the Charter. Finally, the trial judge's finding that the loss of the remains occasioned prejudice to the accused was not sustainable.
The entire transition phase (the 12-month period from the date K was charged with manslaughter to the date he and V were charged with second-degree murder) [page192] was a lost year for K, primarily because of the failings of S, for which the Crown accepted responsibility. Had S included the timing of the liver injury in his original autopsy report, K and V would have been charged with murder, and the charges would have been laid long before May 2000. Even if there was a legitimate explanation for not including the "new" information in the original autopsy report, there was no justification for the eight and one-half months it took S to prepare a one and one- half page written confirmation. The Crown bore responsibility for the 12-month delay between the laying of the manslaughter charge and the laying of the second-degree murder charge against K.
The inquiry into S's competence and the need for an independent review of his work were not unforeseen events, and the time associated with this review should not be treated as part of the inherent time requirements of the case. The police and the Crown knew of a controversy surrounding S's competence and objectivity as early as July 1999. The Crown had to bear responsibility for the seven-month delay in obtaining the independent review, the following additional two months of delay before the preliminary inquiry could be resumed, and three weeks of further delay occasioned by the inability of S to continue his evidence once the preliminary hearing resumed. In total, approximately ten months of delay in the preliminary hearing phase was attributable to the Crown.
There were reasonable bases for the Crown and the Coroner's Office to resist the production motion brought by the accused, and the trial judge erred in ascribing the entire seven months taken up with the production motion to the Crown. Ordinarily, the time taken to hear a production motion would be considered neutral time or time attributable to the moving party. That is how the time relating to the production motion in this case should have been assessed, save for the state bearing responsibility for the three or four months of delay that followed the change of counsel that resulted from the trial judge making findings of misconduct against Crown counsel and counsel for the Coroner. In resisting the production motion, the Crown and counsel for the Coroner advanced legitimate arguments that were reasonably based and by no means oppressive. It would have been reasonable for counsel to believe that they could not remain on the record following the trial judge's findings of misconduct that impugned their profe ssional integrity. Those findings of misconduct were unwarranted. The state had to bear responsibility for the delay that followed this change in counsel.
The accused suffered actual prejudice to their liberty and security interests. When determining prejudice for the purpose of s. 11(b), it is an error in principle to consider prejudice that arises from events occurring before charges are laid. Section 11(b) is designed to protect an accused from the prejudice that flows from unreasonable delay in being tried on criminal and quasi-criminal charges. Events occurring before such charges are laid cannot result in prejudice within the meaning of s. 11(b). However, the hardship that the accused suffered before being charged was not irrelevant when assessing the actual prejudice they suffered during the time between the charges and the anticipated end of the trial. Their lives were devastated. Their son, who had been apprehended by the Children's Aid Society before the charges were laid, was sent to live with his grandparents in Ghana after the accused were charged. The accused were released on restrictive bail conditions which prevented them from seeing their son, save for one occasion when the Crown consented to a bail variation so that V could visit the child in Ghana. When V became pregnant, she had an abortion because of her fear that the Children's Aid Society would apprehend the baby if she were to have it. While K and V's feelings of depression, anger, frustration and loss related to the loss of custody over their son and V's abortion were not properly part of the calculation of prejudice, the court required such background information in order to assess the [page193] stress and anxiety suffered by the accused during the delay period. To ignore such considerations would be to circumscribe the scope of K and V's security interests unfairly.
In conducting the balancing exercise required in a s. 11(b) analysis, the trial judge was alive to the seriousness of the offence. As he noted, the seriousness of the offence is not a separately enumerated factor to be considered in and of itself. There is no separate analysis of reasonableness, in light of the seriousness of the offence. Rather, the seriousness of the offence must inform the court's consideration of each factor and the balancing exercise. While society has a heightened interest in seeing that serious offences are tried, the Crown has a heightened obligation to ensure that the trials for such offences are held in a timely fashion. Societal interests and the interests of the accused do not automatically conflict in a s. 11(b) analysis. In this case, the interests of K and V were not served by delay, but by having the charges against them resolved expeditiously. Societal interests, the needs and wishes of the accused and the goals of s. 11(b) were consonant.
The post-charge delay of 55 months for K and 42[cents] months for V violated their right to be tried within a reasonable time.
R. v. Kalanj, 1989 63 (SCC), [1989] 1 S.C.R. 1594, [1989] S.C.J. No. 71, 96 N.R. 191, [1989] 6 W.W.R. 577, 40 C.R.R. 50, 48 C.C.C. (3d) 459, 70 C.R. (3d) 260; R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771, [1992] S.C.J. No. 25, 134 N.R. 321, 8 C.R.R. (2d) 193, 71 C.C.C. (3d) 1, 12 C.R. (4th) 1, apld
R. v. Atkinson (1991), 1991 7113 (ON CA), 5 O.R. (3d) 301, [1991] O.J. No. 1913, 68 C.C.C. (3d) 109, (C.A.), affd. 1992 43 (SCC), [1992] 3 S.C.R. 465, [1992] S.C.J. No. 91, 11 O.R. (3d) 160, 143 N.R. 389, 76 C.C.C. (3d) 288; R. v. Kovacs-Tatar (2004), 2004 42923 (ON CA), 73 O.R. (3d) 161, [2004] O.J. No. 4756, 192 O.A.C. 268, 192 C.C.C. (3d) 91 (C.A.); R. v. Qureshi, 2004 40657 (ON CA), [2004] O.J. No. 4711, 192 O.A.C. 50, 190 C.C.C. (3d) 453, 27 C.R. (6th) 142(C.A.); R. v. Satkunananthan, 2001 24061 (ON CA), [2001] O.J. No. 1019, 81 C.R.R. (2d) 285, 152 C.C.C. (3d) 321, 42 C.R. (5th) 220 (C.A.); R. v. Seegmiller, 2004 46219 (ON CA), [2004] O.J. No. 5004, 192 O.A.C. 320, 191 C.C.C. (3d) 347 (C.A.), consd
Other cases referred to
New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 653 (SCC), [1999] 3 S.C.R. 46, [1999] S.C.J. No. 47, 216 N.B.R. (2d) 25, 177 D.L.R. (4th) 124, 244 N.R. 276, 552 A.P.R. 25, 66 C.R.R. (2d) 267, 50 R.F.L. (4th) 63, 26 C.R. (5th) 203; R. v. Allen, 1997 331 (SCC), [1997] 3 S.C.R. 700, [1997] S.C.J. No. 91, 220 N.R. 67, 119 C.C.C. (3d) 1, 11 C.R. (5th) 296, affg 1996 4011 (ON CA), [1996] O.J. No. 3175, 110 C.C.C. (3d) 331 (C.A.); R. v. Askov, 1990 45 (SCC), [1990] 2 S.C.R. 1199, [1990] S.C.J. No. 106, 75 O.R. (2d) 673, 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. Batte, 2000 5750 (ON CA), [2000] O.J. No. 2186, 145 C.C.C. (3d) 498, 34 C.R. (5th) 263, 76 C.R.R. (2d) 189 (C.A.); R. v. Bennett 1992 61 (SCC), [1992] 2 S.C.R. 168, [1992] S.C.J. No. 58, 74 C.C.C. (3d) 384, affg (1991), 1991 2701 (ON CA), 3 O.R. (3d) 193, [1991] O.J. No. 884, 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. Dawson, [1998] O.J. No. 4223, 77 O.T.C. 224; R. v. Gingras, 1992 2826 (AB CA), [1992] A.J. No. 107, (1992), 71 C.C.C. (3d) 53, 11 C.R. (4th) 294 (C.A.) [Application to extend time for leave to appeal to S.C.C.] dismissed [1992] S.C.C.A. No. 348; R. v. MacDougall, 1998 763 (SCC), [1998] 3 S.C.R. 45, [1998] S.C.J. No. 74, 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. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668, [1999] S.C.J. No. 68, 75 Alta. L.R. (3d) 1, 180 D.L.R. (4th) 1, 248 N.R. 101, [2000] 2 W.W.R. 180, 69 C.R.R. (2d) 1, 139 C.C.C. (3d) 321, 28 C.R. (5th) 207 (sub nom. R. v. M. (B.J.), Mills v. Canada (Attorney General)); R. v. Mills, 1986 17 (SCC), [1986] 1 S.C.R. 863, 58 O.R. (2d) 543, [1986] S.C.J. No. 39, 16 O.A.C. 81, 29 D.L.R. (4th) 161, 21 C.R.R. 76, 26 C.C.C. (3d) 481, 52 C.R. (3d) 1; [page194] R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98, 130 D.L.R. (4th) 235, 191 N.R. 1, [1996] 2 W.W.R. 153, 33 C.R.R. (2d) 1, 103 C.C.C. (3d) 1, 44 C.R. (4th) 1 (sub nom. R. v. O'Connor (No. 2)); R. v. Smith, 1989 12 (SCC), [1989] 2 S.C.R. 1120, [1989] S.C.J. No. 119, 63 Man. R. (2d) 81, 102 N.R. 205, 45 C.R.R. 314, 52 C.C.C. (3d) 97, 73 C.R. (3d) 1; R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326, [1991] S.C.J. No. 83, 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; R. v. Trotta, 2004 60014 (ON CA), [2004] O.J. No. 2439, 119 C.R.R. (2d) 334, 23 C.R. (6th) 261 (C.A.); Rahey v. R., 1987 52 (SCC), [1987] 1 S.C.R. 588, [1987] S.C.J. No. 23, 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, R. v. McIntyre)
Statutes referred to
Canadian Charter of Rights and Freedoms, ss. 7, 11(b),(d).
Authorities referred to
Martin, G.A., Report of the General's Advisory Committee on Charge, Screening, Disclosure, and Resolution Discussions (Ontario: Queen's Printer, 1993)
APPEAL by the Crown from a stay of proceedings by Trafford J. of the Superior Court of Justice, dated June 23, 2003.
Michal Fairburn and Jennifer Woollcombe, for appellant.
Marlys Edwardh and Breese Davies, for respondent Anthony Kporwodu.
John M. Rosen and Cindy R. Wasser, for respondent Angela Veno.
TABLE OF CONTENTS
A. Introduction para. 1
B. Overview para. 6
C. Chronology para. 17
D. Phase 1: Pre-Charge Phase para. 20 (March 6, 1998 to May 3, 1999)
(1) Trial judge's reasons para. 20
(2) Crown's position regarding the pre-charge phase para. 23
(3) Analysis regarding the pre-charge phase para. 24
(a) Cremation of Athena's remains para. 24
(b) Including pre-charge delay in the s. 11(b) analysis as remedy for s. 7 and s. 11(d) breaches para. 30
E. Phase 2: Transition Phase (May 3, 1999 to May 15, 2000) para. 37
(1) Facts para. 37
[page195]
(2) Trial judge's reasons para. 44
(3) Crown's position regarding the transition phase para. 47
(4) Analysis regarding the transition phase para. 52
(a) Dr. Smith's failure to produce a timely addendum to his autopsy report para. 52
(b) Time for disclosure and other regular intake requirements para. 56
F. Phase 3: Preliminary Hearing Phase (January 15, 2001 to January 17, 2002) para. 63
(1) Facts para. 63
(2) Delay related to obtaining Dr. McFeeley's independent review report para. 75
G. Phase 4: Trial Phase (October 28, 2002 to June 23, 2003) para. 98
(1) Facts relating to the production motion para. 101
(2) Positions of the Crown and the Coroner's Office on the production motion para. 115
(a) Crown's motion to quash the respondents' subpoenas para. 123
(b) Crown possession and control of the criminal autopsy files para. 127
(c) Privacy interests of the families of the deceased children para. 133
(d) Relevance of certain materials in the criminal autopsy files para. 136
(e) Conclusion regarding the positions of the Crown and the Coroner's Office on the production motion para. 138
(3) Delay relating to the change in counsel para. 140
(a) Facts relating to the change in counsel and the ensuing delay para. 141
(b) Responsibility for the delay relating to the change of counsel para. 148
H. Prejudice to the Respondents para. 156
(1) Liberty interests para. 165
(2) Security interests para. 172
(3) Fair trial interests para. 182
[page196]
(4) Balancing of the interests protected by s. 11(b) para. 184
I. Conclusion para. 198
BY THE COURT:--
A. Introduction
[1] This appeal brings into sharp focus the dire consequences that follow when persons charged with serious crimes are not tried within a reasonable time. On June 23, 2003, Trafford J. stayed charges of first-degree murder against the respondents Anthony Kporwodu and Angela Veno. The charges related to the death of the couple's three-month-old daughter, Athena. Trafford J. stayed the charges because he found that the respondents had been deprived of their right to be tried within a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedoms. The Crown appeals from that order.
[2] Section 11(b) of the Charter provides that any person charged with an offence has the right to be tried within a reasonable time. As is apparent, s. 11(b) casts a wide net. People charged with simple assault are protected by it; so too are people charged with first-degree murder. Paradoxically, when s. 11(b) is breached, its breadth narrows considerably. No flexibility exists; a stay of proceedings must be ordered [^1].
[3] This dichotomy produces tension, especially when the crimes involved are serious. Staying charges of first-degree murder without a trial on the merits is almost unthinkable. And yet, that is what must occur if s. 11(b) is breached.
[4] In order to ensure that charges are not stayed for delay, the Crown must be vigilant in bringing accused persons to trial within a reasonable time, especially when the charges are serious. Constant attention must be paid to the s. 11(b) clock. Matters should not be allowed to get out of hand. Crises should be managed efficiently and effectively and with all reasonable dispatch. Flexible approaches and resourceful solutions may be needed to move the case along. In sum, the Crown must take all reasonable steps to ensure compliance with s. 11(b). [page197]
[5] The issue before us is whether Trafford J. came to the correct result in finding that the respondents' right to be tried within a reasonable time was breached. In our view, he did. Accordingly, we would dismiss the appeal.
B. Overview
[6] As indicated, the trial judge stayed the charges against the respondents because of unreasonable delay. In Mr. Kporwodu's case, the delay from the date he was charged to the anticipated completion of his trial totalled four and one- half years; in Ms. Veno's case, three and one-half years. In his 190-page ruling, the trial judge canvassed the history of the case from start to finish. He also addressed the issue of prejudice to the respondents in considerable detail.
[7] In concluding that a stay should be ordered, the trial judge was highly critical of several state actors, including the Assistant Crown Attorney originally assigned to the case, counsel to the Chief Coroner for Ontario originally assigned to the case, the homicide officers in charge of the investigation, the Deputy Chief Coroner for Ontario and other persons affiliated with or employed by the Coroner's Office. In his view, these state actors were largely responsible for the lengthy and unwarranted delays that permeated the proceedings and culminated in a breach of the respondents' right under s. 11(b).
[8] The Crown raises numerous grounds of appeal. Overall, the Crown submits that the trial judge lost his focus and treated the respondents' s. 11(b) application as if it were an abuse of process application under s. 7 of the Charter. Instead of applying the principles that govern a s. 11(b) analysis, the trial judge focused on the performance of the various state actors and used "s. 11(b) as a sword to punish the Crown for what he perceived to be Crown misconduct".
[9] According to the Crown, the trial judge's flawed analysis is "best evidenced by the virtual absence of any recognition of the dead child, the grave injuries she suffered and ultimately, the seriousness of the offences before the court". In approaching the matter as he did, the trial judge "utterly overlooked" the societal interest in bringing the respondents to trial "on the most serious offence known to law".
[10] In sum, the Crown submits that the trial judge reached the wrong result because he applied the wrong principles. Had he engaged in a proper analysis, he would have dismissed the s. 11(b) application.
[11] Manifestly, this is a difficult case. As we indicated earlier, the prospect of freeing someone on a charge of first- degree murder [page198] without a trial on the merits is almost unthinkable. At the same time, as Cory J. observed in R. v. Askov, 1990 45 (SCC), [1990] 2 S.C.R. 1199, 75 O.R. (2d) 673, [1990] S.C.J. No. 106, 59 C.C.C. (3d) 449, at pp. 1219-20 S.C.R., p. 474 C.C.C., speedy trials strengthen societal interests "in ensuring that those who transgress the law are brought to trial and dealt with according to the law" and that "individuals on trial [are] treated fairly and justly". On the record before us, we are satisfied that the trial judge arrived at the correct result.
[12] In so concluding, we are not to be taken as agreeing with the trial judge's reasons in their entirety. On the contrary, as will become apparent, we disagree with aspects of his legal analysis, particularly his treatment of the pre- charge delay. We also believe that he was overly critical of many of the state actors. In some instances, his findings of unacceptable conduct were overstated; in others, they were undeserved.
[13] In this vein, his findings of misconduct against the original Assistant Crown Attorney and counsel for the Coroner's Office were inappropriate and most unfortunate. They made it impossible for either counsel to remain on the record. In turn, that resulted in a further delay of several months while a new Assistant Crown Attorney familiarized herself with the file and the trial judge commenced and completed another murder trial. Unfortunately, this added several further months of delay to an already prolonged prosecution. The delay occasioned by the removal of counsel from the record should not have occurred and the state must bear responsibility for it.
[14] In the end, however, leaving those extra few months aside, it is inescapable that the trial of this matter was delayed for the better part of two years because of the failings of the chief Crown witness, Dr. Charles Smith, the pathologist who performed the autopsy on Athena. But for those failings, which we will detail in due course, the trial of this matter should have occurred within two to two and one-half years following the time that the respondents were first charged. Apart from the complexities of the pathological evidence, which we acknowledge, this was not otherwise an overly difficult or complex case. There were not a lot of witnesses. The central issues were narrow and well-defined. Had the trial proceeded, the outcome would have turned on three critical findings - the cause of Athena's death, the timing of her injuries, and the person or persons responsible for inflicting them. Taking into account systemic delays, inherent delays and delays attributable to the defence, on any reasonable ass essment of the matter, but for lengthy periods of delay attributable to Dr. Smith, it should not [page199] have taken three and one-half years to try Ms. Veno and four and one-half years to try Mr. Kporwodu.
[15] That, however, does not complete the analysis. More is required before a finding of unreasonable delay can properly be made. The charges here were extremely serious. Society has a high interest in ensuring that persons charged with such crimes are tried on the merits of the charge. That interest however must be balanced against the prejudice occasioned to the respondents by reason of the delay. On that score, the trial judge made strong findings of fact in the respondents' favour. In his opinion, the delay impacted significantly on their liberty and security interests and overall, it had a devastating effect on their lives. Importantly, in making that assessment, he placed considerable emphasis on the efforts made by the respondents to move the case along and have it tried. In that sense, unlike many accused who do not want an early trial, the respondents' interest in being tried within a reasonable time paralleled those of society.
[16] In these circumstances, considering the length of the delay, the reasons for it and the prejudice suffered by the respondents, and weighing those factors against the gravity of the crimes and society's interest in bringing the respondents to trial, we are satisfied that the delay was unreasonable and that the trial judge reached the correct conclusion. Accordingly, we would dismiss the appeal.
C. Chronology
[17] The history of this matter is not particularly complicated. There are certain pivotal events that bear mention. These are outlined below:
Date: March 6, 1998 Event: Athena Kporwodu dies at age three months.
Date: March 7, 1998 Event: Dr. Smith performs an autopsy on Athena.
Date: May 29, 1998 Event: Athena's remains are cremated.
Date: October 26, 1998 Event: Dr. Smith completes his autopsy report on Athena.
Date: May 3, 1999 Event: Mr. Kporwodu is charged with manslaughter. [page200]
Date: July 20, 1999 Event: Dr. Smith verbally provides new information to the Crown and police that forms the basis for charging Mr. Kporwodu and Ms. Veno with second-degree murder. Police require written confirmation of this information.
Date: April 4, 2000 Event: Dr. Smith produces a one and one-half page addendum confirming the new information that he verbally provided on July 20, 1999.
Date: April 10, 2000 Event: Dr. Smith's one and one-half page report is disclosed to defence counsel.
Date: May 15, 2000 Event: Mr. Kporwodu and Ms. Veno are charged with second-degree murder.
Date: May 26, 2000 Event: The manslaughter charge against Mr. Kporwodu is withdrawn.
Date: January 15, 2001 Event: The preliminary hearing on charges of second-degree murder begins.
Date: January 22 to the end of January, 2001 Event: Two unrelated murder charges are withdrawn as a result of the unreliability of Dr. Smith's autopsy reports in the two cases. The Chief Coroner for Ontario announces a general competence review of Dr. Smith's work, which was not followed up on for reasons not relevant to this appeal. However, the Coroner's Office undertakes an internal review of certain homicide cases involving Dr. Smith. If the internal review indicates that Dr. Smith's findings are open to dispute or when a Crown Attorney requests that a specific autopsy file in a current case be reviewed, the files are sent for independent external review. [page201]
Date: February 8, 2001 Event: At the Crown's request, the preliminary hearing is adjourned to obtain an independent review of Dr. Smith's autopsy findings regarding Athena.
Date: September 9, 2001 Event: Dr. McFeeley's independent review of Dr. Smith's autopsy is delivered to the Crown and disclosed to the defence the following day.
Date: November 5, 2001 Event: The preliminary hearing resumes.
Date: January 17, 2002 Event: The preliminary hearing concludes. The respondents are committed to stand trial on charges of second-degree murder.
Date: February 20, 2002 Event: The Crown prefers an indictment against the respondents alleging first-degree murder.
Date: October 28, 2002 Event: The trial commences before Trafford J. in the Superior Court.
The respondents move for production of documents in the possession of the Coroner's Office relating to its review of files involving Dr. Smith. The Crown moves to quash the respondents' subpoenas relating to this motion.
Date: December 4, 2002 Event: The trial judge orders the Coroner's Office to produce 17 criminal autopsy files to the Crown for disclosure to the respondents.
Date: December 10, 2002 Event: The trial judge and the parties discuss compliance with his production order made on December 4.
Date: December 20, 2002 Event: The trial judge dismisses the request by the Coroner's Office for a stay of his production order pending an application for leave to appeal to the Supreme Court of Canada. In his ruling, he made findings that impugned the professional integrity of Crown counsel and counsel for the Coroner. [page202]
Date: January 6, 2003 Event: Crown counsel advises that a new Assistant Crown Attorney will appear. New counsel appears for the Coroner's Office.
Date: January 10, 2003 Event: A new Assistant Crown Attorney appears.
Date: January 16, 2003 Event: The new Assistant Crown Attorney requests a one to two- week adjournment to prepare for continuation. The trial judge indicates that he is about to start another murder trial and adjourns the case until March 3, 2003, and then to April 22, 2003.
Date: April 7, 2003 Event: The trial judge completes the other murder trial and resumes the trial of this matter.
Date: June 23, 2003 Event: The trial judge stays the proceedings on account of unreasonable delay.
Date: November 30, 2003 [^2] Event: The date upon which the respondents' trial would have ended had it proceeded.
[18] Within the approximately 70-month time frame from March 6, 1998, the date of Athena's death, to November 30, 2003, the date on which the respondents' trial would have ended, four time periods deserve special attention. They are central to our analysis. In chronological order, the four periods are set out below:
(i) Phase 1: Pre-charge phase - The 14-month period from March 6, 1998 (Athena's death) to May 3, 1999 (the date on which Mr. Kporwodu was charged with manslaughter).
(ii) Phase 2: Transition phase - The 12-month period from May 3, 1999 (the date on which Mr. Kporwodu was charged with the manslaughter) to May 15, 2000 (the date on which Mr. Kporwodu and Ms. Veno were charged with second-degree murder). [page203]
(iii) Phase 3: Preliminary hearing phase - The 12-month period from January 15, 2001 (the date on which the preliminary hearing commenced) to January 17, 2002 (the date on which the respondents were committed to stand trial on charges of second-degree murder).
(iv) Phase 4: Trial phase - The eight-month period from October 28, 2002 (the date on which the trial commenced in the Superior Court) to June 23, 2003 (the date on which the trial judge stayed the proceedings).
[19] As indicated, these phases are central to our analysis. Each contains its own discrete set of facts. We begin with the pre-charge phase.
D. Phase 1: Pre-Charge Phase (March 6, 1998 to May 3, 1999)
(1) Trial judge's reasons
[20] We address this 14-month period because the trial judge included it in his assessment of the overall length of delay for s. 11(b) purposes. In other words, even though Mr. Kporwodu was not charged with manslaughter until May 3, 1999, the trial judge calculated the overall length of delay in his case as approximately 70 months, which included 14 months from March 6, 1998 (the date of Athena's death) to May 3, 1999 (the date on which Mr. Kporwodu was charged with manslaughter) and another 55 months from May 3, 1999 to November 30, 2003 (the date on which the respondents' trial would have completed had it proceeded). The trial judge took a similar approach with Ms. Veno, except that in her case, he included the 26 months of pre-charge delay from March 6, 1998 (the date of Athena's death) to May 15, 2000 (the date on which Ms. Veno was charged with second-degree murder).
[21] The trial judge included in his s. 11(b) analysis for both respondents the pre-charge period of 14 months from Athena's death to the date of the manslaughter charge against Mr. Kporwodu. He did so as a means of remedying a separate breach of the respondents' rights under ss. 7 and 11(d) of the Charter resulting from the cremation of Athena's remains on May 29, 1998. The ss. 7 and 11(d) breaches, as found by the trial judge, consisted of "unacceptable negligence" on the part of the police and the Deputy Chief Coroner in failing to preserve Athena's remains despite knowing that the respondents might wish a second autopsy should they be dissatisfied with Dr. Smith's "as yet unknown" autopsy findings. In the same context, the trial [page204] judge blamed Dr. Smith for having failed to produce a "pending further tests" autopsy report prior to the date of Athena's cremation on May 29, 1998. But for Dr. Smith's delinquency, the respondents would have had his preliminary report prior to May 29 and they could have proceeded with a second autopsy if so advised. Dr. Smith's failure to produce a report until October 1998 deprived them of that opportunity.
[22] The trial judge's reason for including an additional 12 months of pre-charge delay in Ms. Veno's s. 11(b) calculation is somewhat less clear. In his analysis, he did not ascribe it (at least not directly) to the ss. 7 and 11(d) breaches arising from Athena's cremation. Perhaps he was influenced by the fact that the delay in charging Ms. Veno stemmed from Dr. Smith's failure to disclose at an early stage the information about Athena's liver injury, which information led to Ms. Veno eventually being charged. In the opinion of the trial judge "the timing of the fatal injury should have been included in [Dr. Smith's] original report [of October 1998]" and if this had been done "the first appearances on the murder charge probably would have been in January 1999 as opposed to May 2000".
(2) Crown's position regarding the pre-charge phase
[23] The Crown takes issue with the trial judge's entire pre-charge delay analysis. In Mr. Kporwodu's case, the Crown submits that in calculating the overall length of delay for s. 11(b) purposes, the proper starting point should have been May 3, 1999, the date on which he was charged with manslaughter. As for Ms. Veno, the proper starting date should have been May 15, 2000, the date on which she was charged with second-degree murder. In concluding otherwise, the Crown submits that the trial judge made numerous errors. We would distill them into two categories: the cremation of Athena's remains did not occasion a breach of the respondents' rights under ss. 7 or 11(d) of the Charter, and even if it did, it was not open to the trial judge to remedy the breach in the manner that he did. We agree with both submissions.
(3) Analysis regarding the pre-charge phase
(a) Cremation of Athena's remains
[24] With respect, in the circumstances, it was wrong for the trial judge to blame the police, the Deputy Chief Coroner (Dr. Bennett) and Dr. Smith for the failure to preserve Athena's remains. When the cremation occurred, Athena's remains were in control of the respondents and the crematorium to which [page205] they had entrusted the remains, not the police and not the Coroner. While it is true that Dr. Bennett could have reasserted control over the body, on the facts of this case, he was not obliged to do so. In this respect, we disagree with the trial judge's finding that Dr. Bennett and the police had a positive duty of care to the respondents to preserve Athena's remains because they knew the respondents might want a second autopsy should they be dissatisfied with Dr. Smith's findings.
[25] The respondents did not ask Dr. Bennett or the police to assist them in preserving Athena's remains, nor apparently, were the respondents directed to do so by the lawyer with whom they consulted at the time. The police and Dr. Bennett knew that the respondents had spoken to counsel. In view of that, they were entitled to rely on counsel to inform the respondents of their right to seek assistance in storing the body if such assistance was required [^3].
[26] Moreover, the crematorium had instructions from the respondents not to cremate Athena unless the respondents ordered otherwise. Why the crematorium chose to ignore those instructions is unknown. No one from the crematorium was called to give evidence; nor was Dr. Bennett.
[27] As for Dr. Smith, holding him responsible for failing to release a "pending further tests" report prior to May 29, 1998 (the date of the cremation) is equally untenable. There was no evidence that Dr. Smith knew of the respondents' interest in a second autopsy; nor did he have any reason to think (if he even knew) that the crematorium would disobey the respondents' instructions.
[28] In any event, there was no duty on Dr. Smith to produce a "pending further tests" report and certainly none that would have required him to do so before May 29, 1998. The trial judge recognized this in his reasons. He acknowledged that Dr. Smith would have been acting competently had he produced such a report by the end of May, two days after Athena's unannounced and unexpected cremation. Moreover, as the record indicates, the respondents made no calls to Dr. Smith before May 29 to find out when his report might be ready or to notify him that the situation was urgent. Whatever calls the respondents did place to Dr. Smith were made in August 1998, long after Athena's cremation. [page206]
[29] In sum, we are respectfully of the view that the trial judge erred in concluding that "unacceptable negligence" on the part of various state actors caused or materially contributed to Athena's cremation.
(b) Including pre-charge delay in the s. 11(b) analysis as a remedy for s. 7 and s. 11(d) breaches
[30] Alternatively, if the state was "unacceptably negligent" in failing to preserve Athena's remains, the ensuing breach of the respondents' right under s. 7 (and perhaps s. 11(d)) did not, in our view, entitle the trial judge to fashion the remedy he did for two reasons.
[31] First, he was not entitled to include pre-charge delay for s. 11(b) purposes as a remedy for a breach of ss. 7 or 11(d). The law on this subject was settled by the Supreme Court of Canada in R. v. Kalanj, 1989 63 (SCC), [1989] 1 S.C.R. 1594, [1989] S.C.J. No. 71, 48 C.C.C. (3d) 459. At p. 1607 S.C.R., p. 469 C.C.C., McIntyre J., for the majority, held that for purposes of s. 11(b), a person is "charged with an offence" within the meaning of the provision "when an information is sworn alleging an offence against him, or where a direct indictment is laid against him when no information is sworn". Significantly, at p. 1610 S.C.R., p. 471 C.C.C. of the same decision, McIntyre J. considered and rejected the notion that special circumstances could arise that, in the interests of justice, would require some consideration of pre-charge delay for s. 11(b) purposes:
It has been considered that special circumstances could arise which, in the interests of justice, would require some consideration of pre-charge delay because of prejudice which could result from its occurrence. In my view, however, the exceptional cases should be dealt with by reliance on the general rules of law and, where necessary, the other sections of the Charter.
[32] Applying that reasoning to this case, if the loss of Athena's remains constituted a breach of the respondents' right under s. 7 of the Charter, then, to the extent that it prevented the respondents from making full answer and defence, they were entitled to seek a remedy that redressed their inability to make full answer and defence, not one that redressed the time it took to get their matter tried.
[33] Second, the trial judge's finding (made without explanation or analysis) that the loss of Athena's remains occasioned prejudice to the respondents is not sustainable. Dr. McFeeley (who conducted the independent review of Dr. Smith's autopsy of Athena's body) was able to review Dr. Smith's work using slides, x-rays, photographs and other information available to [page207] or generated by him. She did not suggest that her work was hampered by a lack of information and the respondents presented no evidence to counter this.
[34] Apart from bald assertions to the contrary, there was no evidence that the loss of Athena's remains occasioned any prejudice to the respondents, let alone prejudice that would entitle them to a stay of proceedings. In other words, had the matter been approached as a "lost evidence" breach under s. 7, the respondents would have been entitled to no remedy since they had not established that they had suffered harm. With respect, the trial judge failed to recognize this. In consequence, he provided the respondents with a remedy to which they were not entitled. Moreover, he created a remedy that bore no relationship to the alleged breach. In doing so, he did indirectly what Kalanj prohibited him from doing directly.
[35] In conclusion, we agree with the Crown that the trial judge erred in taking pre-charge delay into account in respect of both respondents when calculating the overall length of delay for s. 11(b) purposes.
[36] With that in mind, we turn to the transition phase.
E. Phase 2: Transition Phase (May 3, 1999 to May 15, 2000)
(1) Facts
[37] The transition phase relates to the year between the date on which Mr. Kporwodu was charged with manslaughter and the date on which he was charged with second-degree murder.
[38] By the time Mr. Kporwodu was charged with manslaughter on May 3, 1999, the police had been investigating the case for more than a year and they had consulted with senior Crown Attorneys to determine whether Mr. Kporwodu should be charged, and if so, with what offence. When the manslaughter charge was laid, Mr. Kporwodu already had counsel. On his first court appearance, he was released on bail. Two and one-half months later, on July 16, the Crown made its initial disclosure to the defence. By all accounts, the amount of disclosure material was considerable.
[39] Four days later, on July 20, Ms. Zaied, the assigned Assistant Crown Attorney, met with Detective Crone from the police homicide unit and Dr. Smith. At that meeting, Dr. Smith revealed for the first time his opinion that an injury to Athena's liver, observed during the autopsy on March 7, 1998, likely occurred within 12 hours of her death. If accurate, this meant that both respondents were present when the injury was [page208] inflicted. As well, given the timing of Athena's other injuries, it meant that Athena had been physically abused on more than one occasion. The importance of this information was immediately apparent. According to Detective Crone, it provided him with reasonable grounds to charge Ms. Veno with second-degree murder and to elevate the charge against Mr. Kporwodu from manslaughter to second-degree murder.
[40] Thus, on July 20, 1999, the complexion of the case changed dramatically. In consultation with Ms. Zaied, Detective Crone decided to charge both of the respondents with second- degree murder. Before doing so however, he wanted Dr. Smith to confirm the "new" information in writing. To that end, he immediately contacted Dr. Smith and requested written confirmation. In the meantime, Mr. Kporwodu (and through him Ms. Veno) was informed that he and Ms. Veno were going to be charged with murder.
[41] For reasons that remain a mystery to this day, it took Dr. Smith until April 4, 2000 to produce a one and one-half page addendum containing the new information. The addendum was provided to the defence counsel on April 10, 2000, some eight and one-half months after it had been requested by Detective Crone.
[42] While awaiting Dr. Smith's addendum, several pre-trial hearings were conducted. The first one occurred on November 5, 1999. At each pre-trial, mention was made of the missing addendum and the need to obtain it before the matter could proceed.
[43] Once the addendum was received, it took the police several weeks to arrange for the surrender of the respondents. By May 2, everything was in place. However, to accommodate the respondents, the charges of second-degree murder were not laid until May 15, two weeks later. By prearrangement, the respondents surrendered to the police on May 15 and they were released on consent from court later that day.
(2) Trial judge's reasons
[44] Although the trial judge's reasons are not entirely clear, it would appear that he considered the entire transition period from May 3, 1999 to May 15, 2000 to be unacceptable delay attributable to the Crown. In his ruling, he addressed two matters: delay in making initial disclosure and delay in obtaining Dr. Smith's addendum.
[45] With respect to the former, the trial judge was critical of the Crown for taking two and one-half months from May 3 to [page209] make initial disclosure. In his view, having regard to the history of the matter and the length of time available to the police to complete their investigation, disclosure should have been provided to the defence when Mr. Kporwodu was charged with manslaughter on May 3.
[46] As for Dr. Smith's addendum, the trial judge took the view that the "new" information should have been included in Dr. Smith's original October 1998 autopsy report. Had that been done, Mr. Kporwodu (and Ms. Veno) would have been charged with murder in January 1999 instead of May 2000. Hence, the entire period from May 3, 1999 to May 15, 2000 was lost time for both respondents for which the Crown bore responsibility.
(3) Crown's position regarding the transition phase
[47] The Crown maintains that the trial judge made three errors in his analysis relating to this aspect of the delay in the respondents' trial.
[48] First, the Crown submits that this time frame should not have been considered at all in relation to Ms. Veno since it constituted pre-charge delay. For reasons already stated, we agree.
[49] Second, the Crown submits that in view of the complexity of the case, the two-and-one-half-month delay in making disclosure to Mr. Kporwodu was entirely reasonable and the trial judge erred in holding otherwise.
[50] Third, the Crown maintains that the trial judge erred in his s. 11(b) analysis by failing to consider the inherent time requirements (sometimes referred to as "intake requirements") associated with a case of this nature. In view of the complexity of the case, the amount of disclosure involved, and the need for defence counsel to learn the case, the trial judge should have considered the six-month time period from May 3, 1999 to the first judicial pre-trial on November 5, 1999 as "intake" time and treated it as neutral.
[51] With those adjustments, and the two-week period from May 2 to May 15 required to accommodate the respondents' schedule for surrendering, the Crown acknowledges responsibility for the five months from November 5, 1999 to April 4, 2000 awaiting Dr. Smith's addendum, as well as the additional few weeks in April 2000 that the police needed to make arrangements for the respondents' surrender. In other words, in relation to Mr. Kporwodu, the Crown accepts responsibility for about six months of delay during the transition phase. [page210]
(4) Analysis regarding the transition phase
(a) Dr. Smith's failure to produce a timely addendum to his autopsy report
[52] With respect, we view the transition phase differently from the Crown. In assessing this one-year period, we do not find it particularly useful to carve it into pieces. No matter how one chooses to approach it, practically speaking, the transition phase was a lost year for Mr. Kporwodu, and it was lost primarily because of the failings of Dr. Smith - failings for which the Crown accepts responsibility [^4].
[53] Whether Dr. Smith should have included the "new" information in his original autopsy report is of no great concern. He probably should have. The excuse he gave for failing to do so (as reported by Detective Crone) - it was beyond his purview to speak to the timing of injuries and he could only offer an opinion as to the time of death — was rejected by the trial judge and, in our view, rightly so. Had Dr. Smith included the timing of the liver injury in his original autopsy report, Mr. Kporwodu would not have been charged with manslaughter at all; rather, he and Ms. Veno would have been charged with murder and the charges would have been laid long before May 2000.
[54] But even if there was a legitimate explanation for not including the "new" information in the original autopsy report, there is simply no justification for the eight and one-half months it took Dr. Smith to prepare a one-and-one-half page confirmatory addendum.
[55] In so concluding, we recognize that Detective Crone made some efforts along the way to prod Dr. Smith and that Dr. Smith either put him off or misled him. Ms. Zaied also made similar efforts, albeit long after the matter had gotten out of hand. In the circumstances, we believe that the police and Ms. Zaied should have made considerably greater efforts and been more resourceful in obtaining the long-awaited information from Dr. Smith. That said, in the last analysis, the responsibility for preparing the report rests with Dr. Smith. Absent some explanation, we see no reason why he could not have completed the one-and-one-half page addendum within a few days of his July 20, 1999 meeting with the Ms. Zaied and the police. [page211]
(b) Time for disclosure and other regular intake requirements
[56] Be that as it may, the Crown submits that on a proper analysis of the one-year transition phase, it should only be held responsible for the six-month period of delay from November 5, 1999 (the date of the first judicial pre-trial) to May 2, 2000 (the date on which the police were ready to lay the murder charges). In maintaining that position, the Crown argues that the trial judge erred in failing to consider the regular intake requirements of the case, including the two and one-half months needed to make disclosure, the time needed for the defence to learn the case and, generally, the extra time required to process a case of this complexity, including the need for at least one judicial pre-trial.
[57] The Crown's argument involves carving the one-year transition phase into its various components. As mentioned, given our overriding view that the entire year was lost time for Mr. Kporwodu, we do not find that approach to be particularly useful. Nonetheless, we feel obliged to address the Crown's submissions.
[58] Beginning with the issue of disclosure, we reject the Crown's submission that the trial judge erred in holding the state accountable for the two-and-one-half-month delay between the laying of the manslaughter charge and the making of disclosure. Contrary to the Crown's submission, in coming to that conclusion, the trial judge did not purport to lay down a hard and fast rule that in all cases where the investigation has been lengthy, the Crown must be ready to make disclosure on the day charges are laid. Such a rule would, of course, contravene this court's decision in R. v. Atkinson (1991), 1991 7113 (ON CA), 5 O.R. (3d) 301, [1991] O.J. No. 1913, 68 C.C.C. (3d) 109 (C.A.); affd 1992 43 (SCC), [1992] 3 S.C.R. 465, 11 O.R. (3d) 160, [1992] S.C.J. No. 91, 76 C.C.C. (3d) 288. At p. 318 O.R., p. 126 C.C.C. of that decision, Osborne J.A. observed:
I am not prepared to say that there should be a firm rule that disclosure should be completed, in cases such as this, when the charges are laid. Nor do I think that it is realistic to impose fixed time-frames within which disclosure must be made. Rules of this sort would be impractical and would simply lead to the police and prosecuting authorities delaying the laying of charges.
Disclosure could have been attended to earlier had Detective Hayes had more assistance in the investigation. Some deference should be given to decisions made concerning the commitment of investigative resources to a particular matter, just as deference must be given to political decisions concerning the provisions of court-house facilities and Crown Attorneys: see Askov, supra at 478. [page212]
[59] Osborne J.A.'s remarks must be read in context. In Atkinson, the investigating officer gave extensive evidence in which he explained the complex nature of the investigation and the amount of time and effort he personally had to expend to compile the material for disclosure. No comparable evidence was led in this case. On the contrary, based on the evidence before him, the trial judge was satisfied that the materials disclosed to the defence in July were "in the possession of the Homicide Squad by February l, 1999 and, therefore, could have been collated and produced to the Crown Attorney forthwith upon the laying of the manslaughter charges [on May 3] ...". In our view, that finding was open to the trial judge and we see no basis for disturbing it.
[60] We now turn to two other regular intake requirements of the case: time for the accused person to retain counsel and apply for bail, and time for defence counsel to review the case. Mr. Kporwodu had already retained counsel by the time the manslaughter charge was laid and did not require additional time to retain counsel or obtain bail. Time, however, was needed for Mr. Kporwodu's counsel to learn the case against him. Given the extent of the material and the complexities of the pathological evidence, two to three months to do so would not have been out of line. Normally that would be considered neutral time. However, to do so in Mr. Kporwodu's case would permit the Crown to double count this neutral time.
[61] We say that for this reason. After the second-degree murder charges were laid on May 15, 2000, it took another eight months to commence the preliminary hearing. In view of the complexity of the case, regular intake requirements and the need for several weeks of court time to conduct the preliminary hearing, no one would ordinarily quarrel with an eight-month period between the laying of the second-degree murder charge and the commencement of the preliminary hearing. Here, however, other than the addition of Dr. Smith's one-and-one-half-page addendum, the Crown's case against Mr. Kporwodu remained virtually the same between the laying of the manslaughter charge and the laying of the second-degree murder charge. Accordingly, defence counsel's preparation time would have been the same for the second-degree murder charge as for the manslaughter charge and ought not to be counted as neutral in respect of each charge. If the delay for the regular intake requirements in Mr. Kporwodu's case is ascribed to the second- degree murder charge and treated as neutral time, the Crown cannot then also treat it as neutral time on the manslaughter charge. [page213]
[62] That example illustrates why we find it unhelpful to approach the one-year transition period on a piecemeal basis. To repeat, in our view, for practical purposes, the year between when Mr. Kporwodu was charged with manslaughter and when he was charged with second-degree murder was lost time for him. As such, it delayed his right to be tried within a reasonable time. In the end, regardless of what form the analysis takes, the Crown must bear responsibility for a delay of approximately 12 months between the laying of the manslaughter charge and the laying of the second-degree murder charge against Mr. Kporwodu.
F. Phase 3: Preliminary Hearing Phase (January 15, 2001 to January 17, 2002)
(1) Facts
[63] As noted earlier, the respondents were charged with second-degree murder on May 15, 2000. Eight months later, on January 15, 2001, the preliminary hearing for both respondents began. Having regard to the nature of the case and the number of anticipated witnesses, it was felt that four weeks of court time would be needed to complete the hearing. Various dates in January and February 2001 were reserved accordingly.
[64] The preliminary hearing commenced as scheduled on January 15. It proceeded smoothly until January 18, at which time it was adjourned to February 5 for continuation. Doctor Smith and another doctor were expected to be the next Crown witnesses. That, however, turned out not to be the case.
[65] On January 22 and 25, 2001, two unrelated murder prosecutions were withdrawn at the request of the Crown. Each received media attention at the time. Both involved the death of children and in each instance, Dr. Smith was the pathologist who performed the autopsy. The withdrawal of the charges was linked directly to the unreliability of his autopsy findings.
[66] This was not the first unfavourable media attention that Dr. Smith had received. In May 1999, an article questioning his competence and objectivity appeared in Maclean's magazine. In November 1999, similar concerns were raised on the "Fifth Estate", a national television program.
[67] In view of the controversy around Dr. Smith following the withdrawal of the two unrelated murder charges in January 2001, the Chief Coroner for Ontario announced that the Coroner's Office would undertake a general competence review of Dr. Smith's work. For reasons unrelated to this appeal, the Coroner's Office did not follow up with this formal competence review. However, at a meeting between the Regional Director of [page214] Crown Operations for Toronto, a senior homicide police officer and representatives from the Coroner's Office at the end of January 2001, it was decided that the Coroner's Office would internally review certain homicide cases involving Dr. Smith. If the internal review indicated that Dr. Smith's findings were open to dispute or when a Crown Attorney requested that a specific autopsy file in a current case be reviewed, the files would be sent for independent external review. In this case, Ms. Zaied requested that Dr. Smith's autopsy report regarding Athena be sent for an independ ent external review.
[68] Hence, when the preliminary hearing resumed on February 5, Ms. Zaied announced that she would be seeking an adjournment to obtain an independent review of Dr. Smith's autopsy report. The defence objected. They wanted to proceed with Dr. Smith's evidence and the remainder of the witnesses. Ms. Zaied, however, persisted. She advised the court that the decision to continue the prosecution could well depend on the outcome of the independent review and that it would be pointless to continue the preliminary hearing only to learn later on that the proceedings should have been halted.
[69] The preliminary hearing judge acceded to Ms. Zaied's request. He felt that her proposal was reasonable and that an adjournment would be "in the interest of the administration of justice". Nonetheless, he was concerned that the court could not provide dates to complete the preliminary hearing until November, some eight months later. Ms. Zaied acknowledged the concern but remained steadfast in her request for an adjournment. Accordingly, over defence counsels' objection, the preliminary hearing was adjourned to November 5, 2001 for continuation. Before adjourning, Ms. Zaied announced that Dr. McFeeley had been retained to perform the independent review. She also advised that she had further information about court space and that five days in July were available to resume the preliminary hearing. Defence counsel agreed to keep those dates open in the hope that the matter would proceed as soon as possible.
[70] The matter did not proceed on the July dates. Dr. McFeeley's report of her independent review did not arrive at the Crown's office until September 9, 2001. No explanation for the seven-month delay was offered. The record does however reveal that in July 2001, defence counsel wrote to Ms. Zaied seeking Dr. McFeeley's report. In September 2001, the defence counsel threatened to unilaterally schedule a judicial pre- trial in the event her report was not forthcoming within a week.
[71] Once received, Dr. McFeeley's report was immediately disclosed to defence counsel. The preliminary hearing resumed [page215] on November 5, 2001 and it eventually ended on January 17, 2002. In that period, three weeks from November 27 to December 17 were lost due to Dr. Smith's unavailability to complete his evidence.
[72] On the s. 11(b) application before the trial judge, Ms. Battersby (the Assistant Crown Attorney who replaced Ms. Zaied in January 2003) conceded that the Crown was responsible for the seven-month delay in obtaining Dr. McFeeley's report and the following further two-month delay to resume the preliminary hearing. The trial judge agreed. In his view, although Ms. Zaied acted properly in seeking an adjournment, in the final analysis, the delay in obtaining Dr. McFeeley's report and recommencing the preliminary hearing was delay for which the Crown bore responsibility.
[73] The trial judge also found, albeit in a different context, that as of July 1999, Detective Crone, Ms. Zaied and other homicide officers "knew of a controversy concerning Dr. Smith's capability and objectivity as a forensic pediatric pathologist". According to the trial judge, that explained why Detective Crone "did not feel that it was appropriate to arrest Mr. Kporwodu and Ms. Veno for second degree murder until such time as he received written confirmation from Dr. Smith of the timing of the injuries to the deceased".
[74] We mention those findings now because they play a role in our assessment of the Crown's argument, raised for the first time on appeal, that the delay in obtaining Dr. McFeeley's report should be treated as "part of the inherent time requirements of the case" and thus considered neutral. We turn to that argument now.
(2) Delay related to obtaining Dr. McFeeley's independent review report
[75] The Crown's argument derives from R. v. MacDougall, 1998 763 (SCC), [1998] 3 S.C.R. 45, [1998] S.C.J. No. 74, 128 C.C.C. (3d) 483. At para. 45 of that decision, McLachlin J., for the court, stated 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" (citation omitted, emphasis added).
[76] In MacDougall, the judge fell ill in the middle of a sentence hearing and resigned nine months later. The Crown had no way of knowing that the judge would resign; indeed, everyone expected that he would return. Within a few weeks of his resignation, the Crown moved to have a new judge assigned. [page216]
[77] On those facts, McLachlin J. held that the delay occasioned by the judge's illness should be considered as part of the inherent time requirements of the case and treated as neutral for s. 11(b) purposes. At para. 46, she observed:
A trial judge falling ill may be such an [extraordinary and unforeseeable] event. Judges being human, it is inevitable that they will occasionally fall ill. Where this occurs and where it is not reasonable for the Crown to immediately apply to have the judge replaced [. . .], the delay due to the judge's illness may be regarded as part of the inherent time required to complete the case. At the point, however, where it is reasonable for the Crown to apply to have the judge replaced, the inherent delay due to the judge's illness changes to Crown delay.
[78] In the present case, the Crown submits that the inquiry into Dr. Smith's competence and the need for an independent review of his work were "unforeseen events" and that the time associated with this review should be treated as part of the inherent time requirements of the case.
[79] The respondents take issue with that submission. They rely upon the trial judge's finding, noted above, that as early as July 1999, Detective Crone, other homicide officers and Ms. Zaied "knew of a controversy concerning Dr. Smith's capability and objectivity as a forensic pediatric pathologist". Armed with that finding, the respondents submit that it hardly lies with the Crown to argue that the inquiry into Dr. Smith's competence came as an unforeseeable surprise and they contend that it should not be viewed that way for s. 11(b) purposes.
[80] The Crown counters with the submission that the trial judge's finding was unwarranted on the evidence. If there was a controversy about Dr. Smith in 1999, it related to his tardiness in preparing reports, not his competence. Hence, the Crown maintains its "unforeseen events" argument and submits that the trial judge erred in failing to treat the time it took to obtain Dr. McFeeley's independent review report as part of the inherent time requirements of the case. With respect, we disagree with the Crown's argument for two reasons.
[81] First, contrary to the Crown's submission, we are satisfied there was an evidentiary basis from which the trial judge could find that as early as July 1999, Detective Crone and Ms. Zaied knew of a controversy concerning Dr. Smith's competence and objectivity. The best evidence of that comes from Detective Crone himself.
[82] It will be recalled that following the July 20, 1999 meeting with Ms. Zaied and Dr. Smith, Detective Crone concluded that he had reasonable grounds to arrest the respondents for murder based on oral information from Dr. Smith regarding the [page217] timing of Athena's liver injury. And yet, without written confirmation from Dr. Smith, Detective Crone was not prepared to make the arrests.
[83] In his testimony on the s. 11(b) voir dire before Trafford J., Detective Crone made several revealing admissions as to why he needed written confirmation before proceeding with the murder charges. The relevant excerpts from his testimony are reproduced below:
Q. You'll agree with me that in general, once you have reasonable and probable grounds to arrest someone in your own mind, you can go out and arrest them and lay a charge without written confirmation?
A. Yes.
Q. And in this particular case, you say you had reasonable and probable grounds to effect the arrests and lay second degree murder charges based on the oral information from Dr. Smith?
A. That's correct.
Q. The Crown pathologist in this case?
A. That's correct, sir.
Q. But you were not willing to act on the oral information in this particular case?
A. That's correct.
Q. Am I correct that you were afraid that if Dr. Smith changed his opinion after you laid a charge, you would be seen as a person responsible for laying an improper charge?
A. I think it's fair to say that was one of my concerns, yes.
THE COURT: You've indicated that in your judgment, as an experienced homicide investigator, it was appropriate for you, in the circumstances of this case, to wait for the written addendum to the post-mortem report before you proceeded with your belief that murder charges were appropriate against both defendants.
THE WITNESS: That's correct.
THE COURT: Why did you proceed with such caution in this case?
THE WITNESS: I was aware of the controversy surrounding some of Mister - Dr. Smith's more recent cases and the difficulties that ensued as a result of that. And under ù in that context, I felt it was prudent to wait for the written addendum.
THE COURT: You were aware of that controversy; I take it, as of July of 1999?
THE WITNESS: Yes, sir. [page218]
THE COURT: Was the Crown Attorney aware of that controversy as of July 1999, to your knowledge?
THE WITNESS: I believe she was, yes.
THE COURT: Was your knowledge of this controversy such that you felt it would be better to have another pathologist review the work of Dr. Smith on this case before you proceeded with charges of second-degree murder?
THE WITNESS: No, I didn't consider that at the time, sir.
THE COURT: Did you discuss that possibility with the Crown Attorney in July of 1999?
THE WITNESS: I'm sorry, your Honour, I don't recall.
THE COURT: Thank you, sir.
MR. ROSEN: Q. His Honour asked whether you gave any consideration to having the ù another pathologist review Dr. Smith's work, and you said you didn't consider that.
A. I personally, no, sir.
Q. So it just didn't cross your mind to do it or to ask it or raise it?
A. Well, I felt the injuries in this case were fairly unequivocal. I didn't think it was necessary.
Q. Right. But you didn't discuss it with anybody in light of the controversy that had proceeded Dr. Smith.
A. Eventually, yes, it was discussed.
Q. Eventually, right?
A. But me of my own accord, no, I didn't think it was necessary.
Q. Okay. And when it became a matter of public concern in January of 2000 - just trying to think of the dates. By January 2001, it had become a matter of public concern because of newspapers, right?
A. Yes.
Q. Obviously, it had been discussed at that point?
A. Yes.
Q. And it was common knowledge within the Homicide Squad, among you and your colleagues, that this was a problem?
A. That's correct.
Q. And, in fact, before the newspaper articles, you and your colleagues in the Metropolitan Toronto homicide unit knew about the controversy with Dr. Smith and the public concerns about it in a number of other cases, right?
A. That's right.
(Emphasis added) [page219]
[84] In our view, these excerpts show that as early as July 1999, Detective Crone and Ms. Zaied knew of a controversy surrounding Dr. Smith that went beyond tardiness and related to his competence.
[85] For example, when asked why he wanted written confirmation before charging the respondents with murder, Detective Crone said he was concerned that if Dr. Smith changed his opinion after charges had been laid, he (Crone) would be seen as the person responsible for laying an improper charge. That is hardly the response one would expect if tardiness was his only concern.
[86] Similarly, Detective Crone admitted that in July 1999, he was "aware of the controversy surrounding Dr. Smith's more recent cases and the difficulties that ensued as a result". Again, the difficulties relating to the other cases went beyond tardiness. This was made clear in the Maclean's magazine article and later, in the November 1999 "Fifth Estate" television program.
[87] Detective Crone's notebook also contains some revealing information. In a notation dated November 30, 1999 (20 days after the "Fifth Estate" television program aired), Detective Crone recorded a voice message from Ms. Zaied saying that she had spoken with the Director of Crown Attorneys who was of the view that the respondents should be charged with murder. Despite this, on December 14, 1999, Detective Crone made a notation of a call to the same Director "expressing concern over charging Angela Veno prior to written confirmation from Dr. Chas Smith concerning the timing of the liver injury".
[88] With respect, it defies common sense and logic to believe that as late as December 1999, despite receiving advice from the Director of Crown Attorneys to lay murder charges, Detective Crone was resisting because of a concern that Dr. Smith was known to be tardy in producing his reports.
[89] Beyond all of the foregoing, it is clear that the decision to withdraw the two other unrelated murder charges in January 2001 did not happen overnight. The cases in question had been in the system for a considerable period of time. As such, it only stands to reason that Dr. Smith's competence must have been a topic of concern with the police and the Crown's office long before January 2001. Detective Crone effectively admitted this when he agreed, in questioning by Mr. Rosen, that he and his colleagues at Metro Homicide "knew about the controversy with Dr. Smith and the public concerns about it in a number of other cases" before the publication of the January 2001 newspaper articles reporting on the withdrawal of the two murder charges. [page220]
[90] In sum, as indicated, we are satisfied that there was evidence upon which the trial judge could find that as early as July 1999, the police and Crown counsel were aware of a controversy surrounding Dr. Smith's competence and objectivity. Accordingly, we do not accept the Crown's submission that the events of January 2001 and the decision to obtain an independent review of Dr. Smith's autopsy on Athena were unforeseeable.
[91] In affirming the trial judge's findings, however, we are not to be taken as holding that Ms. Zaied and Detective Crone were negligent in failing to have Dr. Smith's work reviewed earlier. In hindsight, that probably would have been a prudent course of action, particularly in view of the seriousness of the charges and looming s. 11(b) concerns. But neither Ms. Zaied nor Detective Crone is to be judged against a standard of perfection.
[92] In the future, when s. 11(b) concerns are at the forefront of a serious case, other measures will no doubt be explored when competence issues arise in relation to a chief Crown witness. For the present, it is enough to say that on the facts of this case, insofar as s. 11(b) is concerned, the need for an independent review of Dr. Smith's work was not an unforeseen event such that the time taken to obtain Dr. McFeeley's report should be treated as part of the inherent time requirements of the case.
[93] We have spent a considerable amount of time on the foreseeability issue because that is how the Crown framed its argument to explain the delay occasioned by the adjournment of the preliminary hearing in order to obtain an independent review of Dr. Smith's autopsy report. With respect, however, we view the issue of the adjournment as far less complicated. That brings us to the second reason for rejecting the Crown's submission that the adjournment of the preliminary hearing to obtain Dr. McFeeley's report should be treated as part of the inherent time requirements of the case.
[94] There can be no doubt that, in seeking an adjournment to obtain an independent review of Dr. Smith's autopsy findings, the Crown was acting properly. That said, it must be remembered that the defence wanted to proceed with Dr. Smith's evidence and complete the preliminary hearing. The Crown could have acceded to that request and had it done so, it also would have been acting properly.
[95] Thus, although there was nothing wrong with the Crown's request for an adjournment, delay occasioned by it cannot be relied upon by the Crown to explain away delay that is otherwise unreasonable. That point was made by Sopinka J. in R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771, [1992] S.C.J. No. 25, 71 C.C.C. (3d) 1, at p. 794 S.C.R., p. 18 C.C.C. [page221] where, under the heading "Actions of the Crown", he said:
As with the conduct of the accused, this factor does not serve to assign blame. This factor simply serves as a means whereby actions of the Crown which delay the trial may be investigated. Such actions include adjournments requested by the Crown, failure or delay in disclosure, change of venue motions, etc. An example of action of this type is provided in Smith, supra, where adjournments were sought due to the wish of the Crown to have a particular investigating officer attend the trial. As I stated in that case, there is nothing wrong with the Crown seeking such adjournments but such delays cannot be relied upon by the Crown to explain away delay that is otherwise unreasonable.
(Emphasis added)
[96] In our view, the situation of the missing investigating officer referred to by Sopinka J. is akin to the situation here. For legitimate reasons, the Crown in this case sought an adjournment of the preliminary hearing over the objection of defence counsel. While the Crown is not to be faulted for doing so, the delay occasioned by the adjournment cannot be relied upon by the Crown to explain away delay that is otherwise unreasonable.
[97] In sum, we are of the view that the Crown must bear responsibility for the seven-month delay in obtaining Dr. McFeeley's report, the following additional two months of delay before the preliminary hearing could be resumed, and three weeks of further delay occasioned by the inability of Dr. Smith to continue his evidence once the preliminary hearing resumed. In total, approximately ten months of delay in the preliminary hearing phase is attributable to the Crown.
G. Phase 4: Trial Phase (October 28, 2002 to June 23, 2003)
[98] The trial phase was essentially taken up with two motions initiated by the respondents. The first motion was for the production of the criminal autopsy files in the possession of the Coroner's Office that were reviewed internally by the Coroner's Office. The second motion was the s. 11(b) motion to stay the proceedings for unreasonable delay, which resulted in the stay order that underlies this appeal. The one month taken to hear the s. 11(b) motion is not in issue and this time does not factor into our analysis of the trial phase of the proceedings.
[99] At issue in the trial phase is the seven months taken up with the respondents' production motion (as well as the two or three weeks taken up with the production motion during the preliminary hearing). The trial judge ascribed that entire time to the Crown on the basis that the Crown and the Coroner's Office [page222] acted oppressively in resisting the motion. With respect, we believe that there were reasonable bases for the Crown and the Coroner's Office to resist the production motion and that the trial judge erred in ascribing this entire time to the Crown.
[100] Ordinarily, the time taken to hear a production motion would be considered neutral time or time attributable to the moving party. In our view, that is how the time relating to the respondents' production motion should have been assessed in this case, save for the state bearing responsibility for the three or four months of delay that followed a change in counsel. This change in counsel for the Crown and counsel for the Coroner's Office resulted from the trial judge making findings of misconduct against Ms. Zaied and counsel for the Coroner during his ruling on an application by the Coroner's Office for a stay of his production order. As will be seen, it is our view that the trial judge erred in making findings against Ms. Zaied and counsel for the Coroner's Office that impugned their professional integrity and any resulting delay from the change of counsel must be borne by the state (see R. v. Rahey, supra).
(1) Facts relating to the production motion
[101] The respondents' production motion began at the preliminary hearing stage of the proceedings. As set out earlier, the preliminary hearing, which had been halted on February 8, 2001 to permit for Dr. McFeeley's independent review, resumed on November 5, 2001 and eventually concluded on January 17, 2002. At the resumption of the preliminary hearing in November 2001, the respondents moved for production of all documentation arising from the review of Dr. Smith's work by the Coroner's Office.
[102] The respondents originally sought production of all documentation relating to what the respondents referred to as a general competence review of Dr. Smith undertaken by the Coroner's Office. It appears that by "general competence review", the respondents were referring to the review announced by the Chief Coroner, which was never completed. As will be seen, the production motion eventually proceeded in respect of the internal review that the Coroner's Office undertook in respect of certain homicide cases involving Dr. Smith.
[103] At the preliminary hearing stage, the production motion took up several weeks of court time. The preliminary hearing judge eventually dismissed the motion because he found that the families of the deceased children had privacy interests in the files that had to be weighed against the interests of the [page223] respondents in obtaining disclosure of such files. In those circumstances, the preliminary hearing judge ruled, correctly in our view, that from a jurisdictional standpoint, the production motion involved Charter considerations that went beyond his jurisdiction and could only be resolved by the trial judge. The respondents were, however, allowed to call evidence and elicit information intended to support their production motion at trial. To that end, they subpoenaed and examined Dr. Cairns, the Deputy Chief Coroner, Investigations.
[104] Dr. Cairns testified that the Coroner's Office had internally reviewed 17 criminal autopsy files in which Dr. Smith had performed the autopsy. He described the review as "informal" and he stated that the internal reviewers generally kept no notes and may only have placed a tick mark in a particular file to indicate that it had been reviewed. When an internal review indicated that Dr. Smith's findings were open to dispute or when a Crown Attorney requested that a specific autopsy file in a current case be reviewed, the files were sent for independent external review. No report was prepared regarding Dr. Smith's general competence to perform criminal autopsies.
[105] Dr. Cairns also testified that Dr. Carpenter, Head of Pathology at the Children's Hospital of Eastern Ontario, reviewed six of Dr. Smith's non-criminal autopsy files. Dr. Carpenter prepared a formal report on Dr. Smith's competence as it related to these non-criminal cases and that report was disclosed to the respondents.
[106] Additionally, with consent of the Crown, the preliminary hearing judge ordered that the office file numbers of the 17 criminal autopsy files and six non-criminal autopsy files in the possession of the Coroner's Office be disclosed to the respondents. This was done.
[107] In preparation for their production motion at trial, the respondents issued subpoenas to the Coroner's Office, Dr. Smith and the College of Physicians and Surgeons of Ontario [^5]. The Crown, in turn, moved to quash these subpoenas.
[108] The trial judge decided to hear the respondents' production motion in conjunction with the Crown's application to quash the subpoenas. He further decided that he would hear those two motions first before addressing the other motions brought by the respondents, including the s. 11(b) motion. [page224]
[109] The production motion began on October 28, 2002. On December 4, 2002, the trial judge ruled that the Coroner's Office had to turn over the 17 criminal autopsy files in its possession to the Assistant Crown Attorney for disclosure to the respondents in accordance with R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326, [1991] S.C.J. No. 83. He also made orders with respect to the six non-criminal autopsy files in the possession of the Coroner's Office and the files in the possession of the College of Physicians and Surgeons of Ontario, the details of which are not relevant to this appeal.
[110] The Coroner's Office sought a stay of this production order pending an application for leave to appeal to the Supreme Court of Canada. On December 20, the trial judge refused to grant a stay. In his reasons, the trial judge chastised the Assistant Crown Attorney, Ms. Zaied, and counsel for the Coroner's Office, Ms. Dwyer, for their lack of professionalism. He also found that they had engaged in duplicitous conduct and had acted in bad faith. The trial judge's findings regarding counsel prompted a change in counsel for both the Crown and the Coroner's Office, with a resulting adjournment of the trial from January 16, 2003 to April 7, 2003. A portion of that time was needed for the new Assistant Crown Attorney to familiarize herself with the file; however, the bulk of this time was required by the trial judge to complete an unrelated murder trial that he decided to conduct in the interim.
[111] The trial resumed on April 7, 2003. All outstanding disclosure and production issues were addressed and resolved by May 21, 2003. The trial judge then turned his attention to the respondents' s. 11(b) motion.
[112] In his s. 11(b) analysis, the trial judge held the Crown responsible for the time spent at the preliminary hearing and at trial litigating the respondents' motion for production of the 17 criminal autopsy files in the possession of the Coroner's Office. In essence, he did so because he believed that the Crown and the Coroner's Office should not have resisted the motion and that in doing so, they engaged in "oppressive" conduct that caused unnecessary delay.
[113] According to the trial judge, the oppressive conduct took various forms including: unreasonably withholding disclosure; taking positions that were frivolous, vexatious or advanced for an oblique motive; failing to facilitate the orderly determination of the motion, and, in general, being overly confrontational and failing to act in a spirit of cooperation. In accordance with R. v. Dawson, [1998] O.J. No. 4223, 77 O.T.C. 224 (S.C.J.), a decision of Dambrot J. with which the trial judge agreed, delay occasioned [page225] by oppressive Crown conduct was delay for which the Crown should bear responsibility even in the context of proceedings initiated by the defence.
[114] Against that backdrop, we turn to our analysis of the trial judge's assessment of the positions of the Crown and the Coroner's Office in response to the production motion, and his decision to assign to the Crown the time taken in connection with this motion and the delay that followed the change in counsel. For the purposes of our analysis, we are prepared to assume, without deciding, that Dawson correctly states the law.
(2) Positions of the Crown and the Coroner's Office on the production motion
[115] We begin our analysis with the trite but important observation that if there was a reasonable basis in fact or in law for the Crown and the Coroner's Office to resist the respondents' production motion, then their decision to do so cannot amount to oppressive conduct. Positions that are reasonably held and legitimately advanced may, in the end, prove unsuccessful; that, however, does not make them oppressive.
[116] With respect, we believe the trial judge failed to make this important distinction and because of this, he made findings of oppressive conduct against Ms. Zaied for the Crown and Ms. Dwyer for the Coroner's Office that were unwarranted. Contrary to the trial judge's assessment of the matter, we are satisfied that in resisting the respondents' production motion, the Crown and the Coroner's Office advanced legitimate arguments that were reasonably based and by no means oppressive.
[117] In essence, the Crown and the Coroner's Office raised three arguments in support of their positions that they should not have to produce to the respondents the 17 criminal autopsy files in possession of the Coroner's Office. They further argued that if a production order was made, it should only apply to those documents in the autopsy files that were considered relevant to an assessment of Dr. Smith's competence. These four arguments may be summarized as follows.
[118] First, beginning with the Crown's motion to quash the subpoenas issued to the Coroner's Office and others, Ms. Zaied argued that the subpoenas suffered from overbreadth and that they lacked materiality.
[119] Second, Ms. Zaied and Ms. Dwyer took the position that the 17 criminal autopsy files that were in the possession of the Coroner's Office were not in the Crown's possession or control. For disclosure purposes, they maintained that the Crown and [page226] the Coroner's Office should be treated as separate entities and that, in reviewing Dr. Smith's work, the Coroner's Office was acting independently and not as an agent for the Crown. To the extent that the Coroner's Office may have complied with requests from individual Assistant Crown Attorneys to have particular ongoing criminal files reviewed externally, that occurred on a case-by-case basis and it was done at the invitation of the Coroner's Office independently of the Crown.
[120] Third, Ms. Zaied and Ms. Dwyer maintained that even if the 17 criminal autopsy files were found to be in the Crown's control and possession, such a finding did not entitle the respondents to automatic disclosure under Stinchombe. While that may have been the thinking at one time, the decision of the Supreme Court of Canada in R. v. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668, [1999] S.C.J. No. 68, 139 C.C.C. (3d) 321 had shed new light on the subject and in this case, the families of the deceased children had third-party privacy interests that had to be weighed against the respondents' interests in obtaining disclosure.
[121] Fourth, Ms. Zaied submitted that even if the interests of the respondents were to prevail over those of the third parties, the files contained material such as Children's Aid reports that should not be disclosed because they would likely not have been relevant to any assessment of Dr. Smith's competence and would therefore not have been reviewed internally by the Coroner's Office. The trial judge's production order required disclosure of "the materials relied upon in the [internal] review".
[122] As stated, we believe that there was a reasonable basis for advancing each of those arguments, regardless of their ultimate merit. As the issue for us is the reasonableness of the arguments raised by the Crown and the Coroner's Office in resisting the respondents' production motion, and not their ultimate merit, we will briefly explain why we believe that each of the arguments was tenable.
(a) Crown's motion to quash the respondents' subpoenas
[123] The subpoenas issued by the respondents, particularly the one issued to the Coroner's Office, were extremely wide. The subpoena issued to the Coroner's Office provided as follows:
Any and all records, files, notes, charts, medical reports and similar documentation in your possession relating to or concerning the investigation of Dr. Charles Randall Smith, the review of his credentials and competence, the review of his work in any manner including all post-mortem examinations and all reports generated by him that have been or are now the subject matter of any such investigation or review. [page227]
[124] In our view, the overbreadth of the material sought is self-evident. The request could be understood to apply to every file that Dr. Smith had ever worked on for the Coroner's Office. It would also include files in which an internal review performed by the Coroner's Office had vindicated Dr. Smith and endorsed his findings. In such cases, if the Coroner's Office was not acting as an agent of the Crown, relevance would be difficult to discern and the request could well be viewed as a fishing expedition.
[125] In this context, the trial judge was critical of Ms. Zaied for failing to clarify with the respondents the precise files and records that they were seeking. With respect, we think that criticism was unwarranted. When the subpoenas were drafted, the respondents had sufficient information to identify all of the files that they were seeking. To the extent they needed further information, they could have initiated discussions with Ms. Zaied. In short, when counsel serve such broad subpoenas without explaining to those subpoenaed the precise records that they are seeking, a responding application to quash the subpoenas is not unreasonable.
[126] That said, this is an example of the type of problem that can occur when Crown and defence counsel stop communicating in a meaningful way and become intransigent. Conduct of that nature should be assiduously avoided but where it exists, trial judges should make every effort to suppress it as quickly as possible. Trial judges should use the authority of their office to exhort Crown and defence counsel to co- operate and communicate in a positive and constructive fashion both in and out of the courtroom. Litigation conducted in an atmosphere of mistrust and acrimony does not serve the interests of justice and can lead to miscarriages of justice.
(b) Crown possession and control of the criminal autopsy files
[127] Turning to the second argument ù that the Coroner's Office and the Crown are separate entities and that because the 17 criminal autopsy files were in the possession and control of the Coroner's Office, they were not subject to Stinchombe obligations - we simply note that this court has not yet engaged in an in-depth analysis of the applicability of the theory of Crown indivisibility to disclosure in criminal cases. We observe, however, that some support exists for the Crown's position: see The Honourable G. Arthur Martin, Report of the Attorney General's Advisory Committee on Charge, Screening, Disclosure, and Resolution [page228] Discussions (Ontario: Queen's Printer, 1993), at p. 256 and R. v. Gingras, 1992 2826 (AB CA), [1992] A.J. No. 107, 71 C.C.C. (3d) 53 (C.A.), at p. 59 C.C.C., application to extend time for leave to appeal dismissed [1992] S.C.C.A. No. 348.
[128] Be that as it may, the trial judge did not resort to any theory of Crown indivisibility in ordering the Coroner's Office to turn over the 17 criminal autopsy files to Ms. Zaied for disclosure to the respondents. Rather, on the evidence before him, he found as a fact that in carrying out an internal review of Dr. Smith's work, the Coroner's Office was acting in conjunction with, and as an agent for, the Regional Director of Crown Operations. In so concluding, the trial judge rejected other evidence relied upon by the Crown and the Coroner's Office in support of their position that the Coroner's Office was not acting as an agent for the Crown and that any files that the Coroner's Office arranged to have reviewed for individual Assistant Crown Attorneys occurred on a case-by-case basis at invitation of the Coroner's Office.
[129] The trial judge was clearly entitled to find that the Coroner's Office acted as the Crown's agent in conducting an internal review of Dr. Smith's work. That said, this finding was far from inevitable. By no means can it be said that Ms. Zaied acted oppressively in advancing her argument that the Coroner's Office and the Crown acted independently of each other. Further, Ms. Zaied adopted this position from the outset and did not change her position during the course of the production motion. The respondents and the trial judge were wrong in suggesting otherwise and any criticism of Ms. Zaied for going back on her word was unwarranted.
[130] That is but one example of criticism levelled at Ms. Zaied that was unwarranted. There are others. Unfortunately, as we indicated at the outset, the trial judge was overly critical of many state actors, not just Ms. Zaied, in respect of their response to, and handling of, the respondents' motion for production. We believe that much of the trial judge's criticism of Ms. Zaied, Ms. Dwyer, the doctors from the Coroner's Office who conducted internal reviews of Dr. Smith's work, and the Regional Director of Crown Operations was premised on the trial judge's erroneous view that everyone involved, from the outset, should have recognized as inevitable his finding that the Coroner's Office was acting as the Crown's agent in its internal review of Dr. Smith's competence. As already stated, this finding was not inevitable and, as a result, much of the trial judge's criticism of the various state actors was unwarranted.
[131] For instance, the Regional Director of Crown Operations should not have been criticized for failing to ask for a formal [page229] report setting out the conclusions of the internal review by the Coroner's Office. In the circumstances, it was not unreasonable for the Regional Director to have regarded his involvement as limited to identifying particular ongoing criminal cases for the Coroner's Office to review. Likewise, the doctors from the Coroner's Office who conducted the internal review should not have been criticized for failing to make notes of their findings. As with the Regional Director, it was not unreasonable for the doctors to believe that they were doing this work for the Coroner's Office and not as agents of the Crown.
[132] The same can be said of the trial judge's criticism of Ms. Zaied for failing to persuade the Coroner's Office to produce the files at issue voluntarily or alternatively, for failing to have the police seize the files under a search warrant. Once again, that presumes that Ms. Zaied should have known that the trial judge would reject the Crown's position on the agency issue.
(c) Privacy interests of the families of the deceased children
[133] Turning to the third argument (advanced by Ms. Dwyer and supported by Ms. Zaied) ù that even if Stinchcombe applied, there were third-party privacy interests that had to be considered before the 17 criminal autopsy files could be disclosed to the respondents - there can be no doubt that those submissions were proper. They were based on R. v. Mills, supra, in which the Supreme Court of Canada at paras. 108-09 observed that it was wrong to equate "Crown possession or control with a total loss of any reasonable expectation of privacy" and that "Stinchcombe and O'Connor [R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98, 103 C.C.C. (3d) 1] did not address the situation ... [of] records in the Crown's possession in which a complainant or witness has a reasonable, and non- waived, expectation of privacy" (see also R. v. Trotta, 2004 60014 (ON CA), [2004] O.J. No. 2439 (C.A.), at paras. 13 and 18).
[134] In the course of her oral argument before the trial judge, Ms. Dwyer referred at length to Mills. Her argument can hardly be described as frivolous, vexatious or advanced for an oblique motive. In any event, she ought not to have been criticized for advancing an argument at trial that had found favour with the preliminary hearing judge. Of note, when he rejected the respondents' production application at the preliminary hearing stage, the preliminary hearing judge observed that "Mills has carved out a new exception to the usual Stinchcombe rules such that documents can be subject to the privacy exception even when in the hands of the Crown or the State". [page230]
[135] In his December 4 ruling ordering production of the 17 criminal autopsy files pursuant to Stinchcombe, the trial judge did not refer to Ms. Dwyer's third-party privacy submissions. More will be said about that when we address the trial judge's findings of misconduct against Ms. Dwyer and Ms. Zaied made in the context of his ruling refusing a stay of his production order pending an application for leave to appeal to the Supreme Court of Canada. For now, we simply reiterate that Ms. Dwyer's third-party privacy submissions were not oppressive and Ms. Zaied did not engage in oppressive conduct in supporting them.
(d) Relevance of certain materials in the criminal autopsy files
[136] The final argument advanced by Ms. Zaied followed the trial judge's production ruling of December 4. In essence, Ms. Zaied wanted clarification about whether all of the material in the 17 criminal autopsy files had to be produced to the respondents or whether some of the materials in the files, such as Children's Aid reports, could be held back because they lacked relevance and may not have been reviewed by the internal reviewers.
[137] In our view, Ms. Zaied's concerns were both reasonably held and legitimately advanced. And yet, the trial judge became impatient with her, particularly when she pressed the issue. With respect, we do not believe that the trial judge's criticism of Ms. Zaied was warranted. The wording of his production order was open to debate and it was not unreasonable for Ms. Zaied to seek clarification as to whether some material in the criminal autopsy files could be withheld.
(e) Conclusion regarding the positions of the Crown and the Coroner's Office on the production motion
[138] We are respectfully of the view that the trial judge erred in finding that Ms. Zaied, Ms. Dwyer, and other state actors acted oppressively in resisting the respondents' motion for production of the 17 criminal autopsy files reviewed internally by the Coroner's Office. It follows that the trial judge also erred in ascribing to the Crown the time spent litigating the production issue at trial and at the preliminary hearing.
[139] In so concluding, we are not to be taken as intimating that all of the trial judge's criticism of Ms. Zaied was unwarranted. For example, we agree with the trial judge that she should have disclosed her knowledge of the controversy about Dr. Smith when she learned of it in July 1999. Likewise, we [page231] agree that she should have disclosed the list of cases that had been prepared by the Regional Director of Crown Operations and provided to the Coroner's Office for review. That said, if s. 11(b) can be used as a vehicle for sanctioning oppressive conduct (which we specifically refrain from deciding), this can be done only if it is established that such conduct has occasioned delay. The lack of disclosure in these two instances did not cause delay and for that reason alone, it was irrelevant for s. 11(b) purposes.
(3) Delay relating to the change in counsel
[140] As already mentioned, following the trial judge's production order there was a further delay of three or four months occasioned, in small part, by a change in counsel for the Crown and, in much larger part, by the trial judge's decision to start and finish an unrelated murder trial. Having determined that the Crown and other state actors did not act oppressively in resisting the respondents' production motion, the question that remains is who should bear responsibility for this further delay. It is to that issue that we now turn.
(a) Facts relating to the change in counsel and the ensuing delay
[141] The atmosphere in the courtroom leading up to the trial judge's ruling denying a stay of his production order was strained. The trial judge had been critical of Ms. Zaied and Ms. Dwyer for the way in which they were conducting themselves. The record discloses a number of heated exchanges between the two lawyers and the trial judge. Unfortunately, the situation escalated and in his ruling denying the application by the Coroner's Office for a stay of his production order pending an application for leave to appeal to the Supreme Court of Canada, the trial judge made findings against Ms. Zaied and Ms. Dwyer that impugned their professional integrity.
[142] As his stay ruling discloses, the trial judge found it particularly troublesome that in her proposed application for leave to appeal to the Supreme Court of Canada, Ms. Dwyer had raised, as the primary ground of appeal, his failure to consider the impact of Mills on third-party records contained in the seventeen criminal autopsy files. According to the trial judge, he did not address the Mills issue in his production order because Ms. Dwyer had not asked him to find that Mills had changed the Crown's disclosure obligations under Stinchcombe. He was also perturbed that in her oral submissions to him on the stay application, Ms. Dwyer referred to certain remarks he had [page232] made on December 10 which related to his production order made on December 4 and which Ms. Dwyer (and Ms. Zaied) described a "ruling" on the Mills point. In the opinion of the trial judge, Ms. Dwyer was being "unduly adversarial" in referring to his December 10 comments as a "ruling". He further found that in general, Ms. Dwyer and Ms. Zaied had handled the Mills third-party privacy issue in a "completely inappropriate" fashion.
[143] The trial judge went on in his stay ruling to find, in essence, that Ms. Zaied and Ms. Dwyer had deliberately misled the court when, on December 10, they had asked for more time than the short time he had allotted to comply which his production order. In his reasons, he found that their request for an indulgence was, in part, a ploy intended to gain more time to decide whether to seek leave to appeal his production order. As such, he felt that Ms. Dwyer and Ms. Zaied had failed to be "completely candid with the court" and that they had not acted "with [the] utmost good faith" expected of them.
[144] Faced with those findings, steps were taken to replace Ms. Zaied and Ms. Dwyer as counsel of record. To that end, on January 6, 2003, other counsel from Ms. Zaied's office appeared before the trial judge to indicate that new counsel would be replacing Ms. Zaied. New counsel for the Coroner's Office also appeared that day.
[145] In the face of a comment by the trial judge that he might not permit Ms. Zaied's removal from the record, Ms. Zaied's superior appeared on January 10 and advised the trial judge that in consultation with the Regional Director of Crown Operations, it was felt that the administration of justice would be best served if Ms. Zaied did not continue with the prosecution given that it appeared that the court "had lost confidence in Ms. Zaied ... as an officer of the court". He further indicated that both he and the Regional Director disagreed with the trial judge's findings of misconduct against Ms. Zaied, but because it was the trial judge's "province to make those rulings", they believed that the interests of justice would best be served by replacing Ms. Zaied with new counsel.
[146] We mention the submissions of Ms. Zaied's superior now because in the trial judge's s. 11(b) ruling, he indicated, erroneously in our view, that Ms. Zaied and Ms. Dwyer had improperly failed to keep their principals informed of the proceedings in court and that both had been removed from the record by their principals.
[147] In the end, the trial judge allowed Ms. Zaied to be removed from the record and a new Assistant Crown Attorney [page233] (Ms. Battersby) appeared in court on January 10 along with Ms. Zaied's superior. The matter was then adjourned to January 16, at which time Ms. Battersby sought a one or two week remand to prepare for continuation. That, however, was not to be. The trial judge indicated that he was about to start another murder trial and, accordingly, the trial judge adjourned the respondents' trial for almost three months. The trial resumed on April 7, 2003 after the trial judge had completed the other murder trial.
(b) Responsibility for the delay relating to the change of counsel
[148] In his reasons for staying the proceedings under s. 11(b), the trial judge held the Crown responsible for the delay from January 2003 to April 2003 that followed the change in counsel. We agree that the state must bear responsibility for that period but we do so for reasons that differ from those of the trial judge.
[149] Briefly, in our view, it would have been reasonable for Ms. Zaied and Ms. Dwyer to believe that they could not remain on the record following the trial judge's findings of misconduct that impugned their professional integrity. For the reasons set out below, it is also our view that these findings of misconduct were unwarranted and accordingly, the state must bear responsibility for the delay that followed this change in counsel.
[150] First, in considering Ms. Dwyer's application for leave to appeal to the Supreme Court of Canada from his production order, the trial judge took unnecessary exception to her characterization of his December 10 remarks as a "ruling". While the trial judge's comments may not have been a ruling, these comments made it perfectly clear that in his view, records in the Crown's possession had to be disclosed regardless of any privacy interests that might attach to them. In the circumstances, Ms. Dwyer (and Ms. Zaied) can be forgiven for believing that these comments were linked to his December 4 production order. In any event, the draft leave application stated that only the production order was being appealed, not the December 10 "ruling".
[151] Second, in his ruling on the stay application, the trial judge was clearly mistaken in holding that Ms. Dwyer had not raised Mills and third-party privacy issues as a basis for resisting the automatic disclosure of records found to be in the Crown's possession and control. As indicated earlier, Ms. Dwyer made extensive submissions about the impact of Mills on [page234] Stinchcombe. We see no need to reproduce them. Suffice it to say that, in our view, the record shows that Ms. Dwyer did indeed raise the Mills issue for the trial judge's determination on the production motion and the trial judge erred in holding otherwise.
[152] Third, having erred in holding that Ms. Dwyer did not raise the Mills issue as a basis for resisting the respondents' production motion, the trial judge further erred in finding that it was inappropriate for her to seek leave to challenge his production order on that basis.
[153] Fourth, the record does not support the trial judge's finding that the request by Ms. Dwyer and Ms. Zaied for more time to comply with his production order was a ploy to gain time to consider whether to seek leave to appeal the order. The fact that Ms. Dwyer may have been considering a leave application at the time that she and Ms. Zaied made the request for more time does not of itself establish such duplicity. The two positions were quite capable of co-existing without guile. With respect, the trial judge's finding to the contrary was speculative.
[154] Fifth, as indicated, in his s. 11(b) ruling, the trial judge accused Ms. Zaied and Ms. Dwyer of improperly failing to keep their principals informed of the proceedings. He also found that their principals had removed them from the record. With respect, there was no evidence to substantiate these findings. Indeed, as discussed earlier in respect of Ms. Zaied's superiors, the only evidence on the point is to the contrary.
[155] In sum, from their perspective, it would have been reasonable for Ms. Zaied and Ms. Dwyer to believe that they could no longer act as counsel of record following the trial judge's findings of misconduct that impugned their professional integrity. As those findings were unsupported by the evidence, the state must bear responsibility for the change in counsel and the delay occasioned by it. The delay of approximately three months from January 2003 to April 2003 during the trial phase must accordingly be borne by the state.
H. Prejudice to the Respondents
[156] Having reviewed the four phases of the trial proceedings and set out our conclusions about the delays for which the Crown bears responsibility, we now turn to a consideration of the effect of these delays on the respondents' right under s. 11(b) to be tried within a reasonable time. As stated at the beginning of these reasons, there is no room for remedial flexibility if s. 11(b) is breached; a stay of proceedings must be ordered in those circumstances. [page235]
[157] Section 11(b) protects an individual from impairment of his or her right to liberty, to security of the person, and to make full answer and defence. The defence has the burden of demonstrating that those interests have been prejudiced as a consequence of the Crown's failure to bring the accused to trial within a reasonable time, not as a matter of having been charged. See R. v. Morin, supra, at pp. 786, 788 S.C.R., pp. 12, 14 C.C.C.
[158] As the Crown concedes, prejudice may be inferred simply because of over-long delay. See Morin at p. 801 S.C.R., p. 23 C.C.C., R. v. Satkunananthan, 2001 24061 (ON CA), [2001] O.J. No. 1019, 152 C.C.C. (3d) 321 (C.A.), at paras. 57û58, R. v. Qureshi, 2004 40657 (ON CA), [2004] O.J. No. 4711, 190 C.C.C. (3d) 453 (C.A.), at para. 14, and R. v. Seegmiller, 2004 46219 (ON CA), [2004] O.J. No. 5004, 191 C.C.C. (3d) 347 (C.A.), at para. 18. The Crown may call evidence to establish that long delay has caused no prejudice.
[159] In our view, it is appropriate to infer prejudice to the respondents in this case. The three and one-half years to try Ms. Veno and the four and one-half years to try Mr. Kporwodu, by themselves, are sufficiently long to infer prejudice. The Crown called no evidence to rebut this inference. Additionally, over the years that the charges were pending against them, the respondents pressed to have their matters tried and we have taken that into account as well in concluding that prejudice may be inferred. That said, our analysis does not depend solely on inferred prejudice as we are also satisfied that the respondents suffered actual prejudice in respect of the individual interests that s. 11(b) is designed to protect.
[160] Before turning to our reasons for concluding that the respondents suffered actual prejudice, we propose to briefly deal with the Crown's submission that the trial judge misunderstood the meaning of prejudice within the s. 11(b) analysis by considering events that occurred before charges were laid. We accept that submission.
[161] In assessing actual prejudice, the trial judge considered events both before and after the date on which the respondents were charged. The events that pre-dated the laying of the charges include the apprehension by the Children's Aid Society of the respondents' son Julius, Athena's cremation contrary to the respondents' instructions, Ms. Veno's decision to have an abortion because of her fears that the Children's Aid Society would apprehend her newborn as it had done with Julius, the deterioration in the respondents' relationship, and the anxiety the respondents suffered because of the prospect of being charged. [page236]
[162] In our view, when determining prejudice for the purpose of s. 11(b), it is an error in principle to consider prejudice that arises from events occurring before charges are laid. Rather, the period under consideration begins with the laying of the charge and continues to the end of trial. Our reasoning is simple. Section 11(b) is designed to protect an accused from the prejudice that flows from unreasonable delay in being tried on criminal and quasi-criminal charges. It is, therefore, axiomatic that events occurring before such charges are laid cannot result in prejudice within the meaning of s. 11(b).
[163] Having said that, as we discuss more fully below when we consider the security interests protected by s. 11(b), the hardship that the respondents suffered before being charged is not irrelevant when assessing the actual prejudice they suffered during the time period between when they were charged and when their trial was predicted to end.
[164] Returning to the actual prejudice suffered by the respondents after they were charged, we come to the same conclusion as the trial judge, namely, that the respondents' lives were devastated and their liberty and security interests adversely affected as a consequence of the delay in the proceedings against them. We will consider, in turn, each of the three interests protected by s. 11(b) in relation to the circumstances of the respondents. We will also consider the trial judge's balancing of the individual and societal interests that underlie s. 11(b) with the length and causes of the delay.
(1) Liberty interests
[165] As the Supreme Court of Canada affirmed in R. v. Rahey, supra, at p. 605 S.C.R., p. 300 C.C.C., an individual's liberty interests can be impaired by restrictions on their free movement that are imposed while the individual is released on bail.
[166] In this case, Mr. Kporwodu's bail conditions required him to report to the police once a week, to remain in Ontario, to refrain from being in the presence of children under the age of ten unless accompanied by another adult, and to surrender his passport. Ms. Veno's original bail conditions included remaining in Ontario, reporting to the police not less than twice a week, not applying for any travel documents, and residing at an approved address. She later obtained a variation so that she was required to report only once a week.
[167] Additionally, the respondents' son Julius, who had been apprehended by the Children's Aid Society from the respondents' custody before the charges were laid, was sent to live [page237] with his paternal grandparents in Ghana after the respondents were charged.
[168] The Crown argues that the respondents' liberty interests were minimally impaired because they were not incarcerated pending trial and because their bail conditions did not interfere with their relationship with Julius. While it is correct that the respondents were only in custody for very brief periods of time, we do not accept the Crown's contention that the respondents' liberty interests were minimally impaired. In our view, for the reasons given below, the bail conditions restricted the respondents' free movement and infringed upon their liberty interests.
[169] Both respondents rely on the prejudice they suffered from having to report to the police hundreds of times as a result of their bail reporting requirements, which lasted four and one-half years for Mr. Kporwodu and three and one-half years for Ms. Veno. It is clear from this court's judgment in Satkunananthan, supra, that reporting obligations can amount to restrictions on liberty. As in Satkunananthan, the duration of the reporting requirements in this case, coupled with the mobility restrictions prescribed by the respondents' bail conditions, justify the trial judge's finding that the respondents' liberty interests were impaired.
[170] The Crown takes the position that it was an error to find prejudice flowing from impairment of the respondents' mobility rights, arguing that it was the respondents' limited finances that prevented them from travelling to see their son Julius. In our view, that argument ignores the impact of the respondents' bail conditions on their ability to travel, and therefore to see Julius, who was living in Ghana for most of the time that the charges against the respondents were pending. Clearly, the bail condition barring the respondents from leaving Ontario impaired their ability to travel and see their son, even if finances posed an additional hurdle for them. While Ms. Veno sought and obtained a bail variation once, with the Crown's consent, so that she could travel to Ghana for a month to see Julius, a one-month visit can do little to repair the damage to the bond between a parent and a child that flows from an extended period of separation. Mr. Kporwodu did not seek a bail variation because the Crown indi cated it would not consent to such an application and, given that he was born in Ghana, the prospect of obtaining such a variation without Crown consent was probably slight in light of flight concerns. Moreover, Mr. Kporwodu had the additional restriction that he was not allowed to be in the presence of a child under the age of ten unless accompanied by another adult. [page238]
[171] For these reasons, we see no error in the trial judge's finding that the respondents' liberty interests were impaired as a result of the bail conditions.
(2) Security interests
[172] In R. v. Mills, 1986 17 (SCC), [1986] 1 S.C.R. 863, 58 O.R. (2d) 543, [1986] S.C.J. No. 39, 26 C.C.C. (3d) 481, at p. 868 S.C.R., p. 581 C.C.C., Lamer J. (as he then was) adopted the following description of what is encompassed by the phrase "security of the person" in the context of s. 11(b): "It encompasses aeprotection against overlong subjection to the vexations and vicissitudes of a pending criminal accusation'". Security of the person recognizes the stigmatization, loss of privacy, and stress and anxiety created by criminal proceedings. (See Morin, supra, at p. 786 S.C.R., 12 C.C.C.) As well, an individual's security interest can be infringed by any state action that has a "serious and profound effect on a person's psychological integrity", including state interference with a person's familial relations. (See New Brunswick (Ministry of Health and Community Services) v. G. (J.), 1999 653 (SCC), [1999] 3 S.C.R. 46, [1999] S.C.J. No. 47, at paras. 60-61.)
[173] At the time that the respondents were charged, they were already very stressed. They were physically and emotional weary from the events that followed Athena's death. They had lived for a significant period of time with the prospect of being criminally charged for Athena's death. They suffered over Athena's unauthorized cremation. They needed to grieve Athena's death but were hampered by the ongoing criminal investigation. The possibility of a trial precluded any sort of closure. Their plans of marriage and marital relations were disrupted.
[174] Both respondents also suffered greatly from losing their son Julius. While Julius was in foster care, they found it difficult to see him being raised by other people and were concerned about the care that he was receiving. In the first week after the Children's Aid Society apprehended Julius, they were not permitted to see him. Thereafter, access was limited and only when supervised. After Julius was sent to live with his paternal grandparents in Ghana, they were unable to be an integral part of his life. Contact was limited to a weekly telephone call.
[175] In addition to the foregoing circumstances faced by both respondents, Ms. Veno had an abortion in December 1998. Ms. Veno stated that when she unexpectedly became pregnant, the Children's Aid Society advised her that the baby might be taken from her if she continued the pregnancy. She was also told that [page239] this might not happen if she and Mr. Kporwodu were cleared of wrongdoing in Athena's death. However, there was no possibility of being cleared because Dr. Smith's report had not been issued. Ms. Veno decided to terminate her pregnancy because of her fear that the Children's Aid Society would apprehend the baby if she were to have it.
[176] The Crown submits that the duration of the criminal proceedings is irrelevant to the respondents' situation in respect of Julius because his apprehension occurred before the respondents were charged and would have taken place regardless of whether they had been criminally charged. Similarly, the Crown submits that Ms. Veno's decision to abort, which was made well in advance of her being criminally charged, was not connected to the speed of the criminal proceedings or to the delay in the issuance of Dr. Smith's report, and therefore was erroneously considered by the trial judge when he determined prejudice.
[177] As stated earlier, while events that pre-date the charges are not properly included in a determination of prejudice, in our view it would be a mistake to disregard such events completely. A thoughtful determination of the impact of delay on Mr. Kporwodu's and Ms. Veno's security interests during the post-charge period must begin with an understanding of their emotional, psychological, and physical states at the time the charges were laid. An appreciation of the relevant events that occurred between Athena's death and the charge against Mr. Kporwodu in May 1999 and Ms. Veno in May 2000 provides the context within which the court can properly assess the effects of the criminal proceedings upon the respondents' security interests after they were charged. While Mr. Kporwodu and Ms. Veno's feelings of depression, anger, frustration, and loss related to the loss of custody over Julius and Ms. Veno's abortion are not properly part of the calculation of prejudice, the court requires such background informatio n in order to properly assess the stress and anxiety suffered by the respondents during the delay period.
[178] To describe and recognize pre-charge events is not to equate them to prejudice for the purposes of s. 11(b). It is a recognition of the respondents' legitimate emotional, psychological, and physical states at the date the charges were laid so that a fair assessment can be made of the impact the delay had on the respondents' security interests after that date. To ignore such considerations would be to unfairly circumscribe the scope of their security interests. [page240]
[179] The trial judge made separate findings for the period after the respondents were charged. He found that the respondents suffered from increasing stress and depression and that they suffered from not being actively involved in raising their son. The ever-increasing period of separation from Julius weakened the normal bond between a parent and a child and made them feel like strangers to their own child.
[180] The Crown contends that the trial judge's finding that Mr. Kporwodu's health had been adversely affected was influenced by evidence about the increase in Mr. Kporwodu's blood pressure. We do not accept this submission. While the trial judge referred to this evidence when summarizing Mr. Kporwodu's medical condition, he did not refer to it when he decided the matter of prejudice. There is no suggestion that Mr. Kporwodu's blood pressure was a factor in the trial judge's finding that Mr. Kporwodu suffered from increasing stress and depression as a result of the delay in bringing the matter to trial.
[181] In light of the record, it can hardly be suggested that there was no evidence of actual prejudice to the respondents' health and well-being or that the prejudice was not due to the length of time that the criminal proceedings took. There is no basis upon which to interfere with the trial judge's findings in this regard, nor with his determination that the respondents' security interests had been seriously impaired as a result of delay.
(3) Fair trial interests
[182] According to the Supreme Court of Canada in Morin, supra, at p. 786 S.C.R., p. 12 C.C.C., s. 11(b) protects an accused person's right to a fair trial by "attempting to ensure that proceedings take place while evidence is available and fresh". The Crown argues that the respondents' fair trial interests have not been adversely affected. The respondents contend otherwise, pointing to Athena's unauthorized cremation and their resulting inability to obtain a second, independent autopsy. The respondents further argue that the Crown's case is no longer fresh.
[183] We are not satisfied that the evidence supports either of the respondents' submissions. Apart from the fact that Athena was cremated through no fault of the state before charges were laid, there was no evidence to show that a medical expert required Athena's body in order to provide a reliable second opinion. And, while the passage of time normally hinders the ability of witnesses to recall details, again there was no evidence on the [page241] record that could establish prejudice in this regard. Virtually all witnesses were available and there was ample documentary evidence upon which witnesses could rely to refresh their memories.
(4) Balancing of the interests protected by s. 11(b)
[184] In Morin, Sopinka J., at p. 788 S.C.R., p. 13 C.C.C., described the balancing exercise required in a s. 11(b) analysis in these terms:
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.
[185] This court, in R. v. Batte, 2000 5750 (ON CA), [2000] O.J. No. 2186, 145 C.C.C. (3d) 498 (C.A.), at para. 86, commented further on this balancing, stating: "The purpose of the analysis of the delay under the various Morin headings is to provide a framework for the balancing exercise." Thus, the task of a judge in deciding whether s. 11(b) has been infringed and proceedings against the accused must be stayed, is to balance the individual and societal interests that underlie s. 11(b) with the length and causes of delay. (See also Qureshi, supra, at para. 10).
[186] The trial judge described the legal principles applicable to the balancing exercise in his stay ruling as follows:
No one factor is determinative. Rather, all of the factors must be balanced in the circumstances of the case, having regard to the interests s. 11(b) of the Charter is designed to protect. The test is not one of balancing the societal interest in a trial on the merits, particularly where the charge is a serious one such as murder, against the prejudice to the defendant. The seriousness of the charge is one circumstance that informs the Court's consideration of each, and all, of the enumerated factors. The seriousness of the charge is not a factor in and of itself. See R. v. Sharma (1992), 1992 90 (SCC), 71 C.C.C. (3d) 184 at 196 (S.C.C.). The general approach to a determination of whether or not 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 the factors which either inevitably lead to delay or are otherwise the cause of delay. Some d elay is inevitable. At some point, the delay becomes unreasonable. See R. v. Morin, supra, at 13 and R. v. Smith (1989), 1989 12 (SCC), 52 C.C.C. (3d) 97 at 105 (S.C.C.).
However, the Court should examine the various segments of time in order to determine the legal significance of the entire delay. This approach is necessary to, and an integral part of the balancing of the interests protected by s. 11(b) of the Charter. If the overall delay is compatible with the values underlying this section, the fact that any given interval of time leading to the total delay is excessive, when viewed in isolation, is of no consequence to this application. [page242]
[187] The trial judge then quoted at length from Doherty J.A.'s reasons in R. v. Allen, 1996 4011 (ON CA), [1996] O.J. No. 3175, 110 C.C.C. (3d) 331 (C.A.), at p. 345 C.C.C., affd 1997 331 (SCC), [1997] 3 S.C.R. 700, [1997] S.C.J. No. 91, 119 C.C.C. (3d) 1, and Arbour J.A.'s reasons in R. v. Bennett, supra, at p. 211 O.R., 467 C.C.C. Both decisions reinforced his view of the principles to be applied to the balancing process.
[188] We agree with the trial judge's approach to, and articulation of, the principles involved in the balancing that is required in all s. 11(b) analyses. Balancing is not to be paid mere lip service, nor is a mechanical approach to be taken to the computation of time when assessing reasonableness for the purposes of s. 11(b).
[189] The Crown concedes that the trial judge correctly stated the applicable legal principles, but argues that he failed to properly balance the relevant factors. Specifically, the Crown argues that, given the seriousness of the alleged offences, the trial judge failed to give proper consideration to the societal interest protected by s. 11(b) in ensuring that alleged offenders are brought to trial and dealt with according to law. The Crown stresses that as the seriousness of the offence increases, so does the societal demand that accused persons be brought to trial and urges us to find that the trial judge failed to give this interest appropriate weight or recognition.
[190] No one disputes the first part of the Crown's contention. Indeed, in Morin, supra, at p. 787 S.C.R., p. 13 C.C.C., Sopinka J. stated: "As the seriousness of the offence increases so does the societal demand that the accused be brought to trial." However, we do not accept that the trial judge failed to give this interest due consideration. In so concluding, a number of points must be made.
[191] First, there can be no question that the trial judge was alive to the seriousness of the offence. In the extract from the reasons quoted above, the trial judge expressly adverts to the seriousness of the offence, noting that balancing is particularly difficult when "the charge is a serious one such as murder".
[192] Second, as the trial judge noted, the seriousness of the offence is not a separately enumerated factor to be considered in and of itself. There is no separate analysis of reasonableness in light of the seriousness of the offence. Rather, the seriousness of the offence must inform both the court's consideration of each factor and the balancing exercise.
[193] In making this statement, we wish also to respond to the suggestion that in the recent cases of Qureshi, supra, Seegmiller, supra, and R. v. Kovacs-Tatar (2004), 2004 42923 (ON CA), 73 O.R. (3d) 161, [2004] O.J. No. 4756, 192 C.C.C. (3d) 91 (C.A.), [page243] this court treated the seriousness of the offence as an independent factor to be pitted against the interests of an accused. We do not read those cases as suggesting that some type of separate analysis is required for more serious offences. In each case, this court followed the analytical framework established in Morin, considered the four factors relevant to delay, and engaged in the requisite balancing process.
[194] Third, while society has a heightened interest in seeing that serious offences are tried, the Crown has a heightened obligation to ensure that the trials for such offences are held in a timely fashion.
[195] Fourth, societal interests and the interests of an accused do not automatically conflict in a s. 11(b) analysis. As referred to at the beginning of these reasons, Cory J. discussed the duality of the societal interest in having trials within reasonable times in Askov, supra, at pp. 1219-20 S.C.R., p. 474 C.C.C. as follows:
First, there is a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law. Secondly, those individuals on trial must be treated fairly and justly. Speedy trials strengthen both those aspects of the community interest.
[196] No doubt there are cases in which accused persons attempt to delay their trials. That is not this case. Here, the respondents' interests were not served by delay but by having the charges against them resolved expeditiously. Their son had been apprehended and would not likely be returned to them unless they were cleared of wrongdoing in Athena's death. Their ability to seek closure in respect of Athena's death and to begin to rebuild their lives and their relationship depended upon resolution of the charges against them.
[197] In this case, the societal interest in a speedy resolution of the charges on the merits and the respondents' interests coincided. As a result, the tension that can exist under s. 11(b) between the aims of an accused and the interests of society did not arise. Societal interests, the needs and wishes of the respondents and the goals of s. 11(b) were consonant.
I. Conclusion
[198] In concluding that a stay was warranted, the trial judge said this:
In conclusion, the obligation of the Court in the circumstances of this case is to stay the prosecution under s. 11(b) of the Charter. The primary purpose of the right to a trial within a reasonable time is to protect the [page244] defendant's right to fundamental justice. While there is a societal interest in a trial on the merits, there is also a societal interest in a speedy trial that is just and fair. The balancing of the factors designed by the Supreme Court to give effect to the values underlying s. 11(b) of the Charter is a difficult task in cases like this one, where the death of a threemonthold child is the subject of a murder charge against her parents. It must be remembered that the task of the Court is not to balance the societal interest in a trial on the merits against the prejudice to the defendants. There are other values implicated by the handling of this prosecution. The defendants, who are presumed to be innocent, have been denied an opportunit y of demonstrating their innocence for an unconscionable period [of] time, 70 months. The human cost to the defendants in this case is almost palpable ...
[199] For the reasons already given, we are of the view that the trial judge erred in his finding as to the length of delay by including pre-charge delay in his s. 11(b) analysis. But, after substituting 55 months of post-charge delay for Mr. Kporwodu and 42 and one-half months of delay for Ms. Veno, we come to the same conclusion as he did - the delay violated the respondents' right to be tried within a reasonable time. The period of delay for each respondent far exceeds the guidelines suggested by the Supreme Court of Canada. The delay is, on any definition, excessive. The respondents suffered serious prejudice. They caused virtually none of the delay and they did not agree to or waive any period of it. Instead, the respondents generally strove to move their matters to trial. On balancing these factors, the result is clear. Despite the seriousness of the charges, the delay was unreasonable and a stay is warranted. The appeal is accordingly dismissed.
Appeal dismissed.
Notes
[^1]: R. v. Rahey, 1987 52 (SCC), [1987] 1 S.C.R. 588, [1987] S.C.J. No. 23, 33 C.C.C. (3d) 289, at p. 614 S.C.R., pp. 306-07 C.C.C., per Lamer J. for the majority; see also R. v. Bennett (1991), 1991 2701 (ON CA), 3 O.R. (3d) 193, [1991] O.J. No. 884, 64 C.C.C. (3d) 449 (C.A.), at pp. 206-07 O.R., p. 463 C.C.C., per Arbour J.A., affirmed on appeal to the S.C.C. at 1992 61 (SCC), [1992] 2 S.C.R. 168, [1992] S.C.J. No. 58, 74 C.C.C. (3d) 384.
[^2]: The trial judge's reasons cite December 2003 as the anticipated conclusion date of the trial. The Crown's position is that the trial was anticipated to finish by November 30, 2003. Very little turns on this difference and we have chosen the November 30 date.
[^3]: It is unnecessary to determine what, if any, duty the Coroner or the police would have owed had such a request been made.
[^4]: In oral argument, Ms. Fairburn, with her usual candour, acknowledged that Dr. Smith was a state actor and that "his conduct comes to rest with the Crown".
[^5]: At the time, the College of Physicians and Surgeons of Ontario was reviewing three of Dr. Smith's files.