WARNING
THIS IS AN APPEAL UNDER THE
YOUTH CRIMINAL JUSTICE ACT
AND IS SUBJECT TO:
(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act…
(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person…
(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
DATE: 20050209
DOCKET: C41633
COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Appellant) – and – M. H. [A Young Person] (Respondent)
BEFORE: LASKIN, ROSENBERG and LAFORME JJ.A.
COUNSEL:
Robert Kelly for the appellant
Douglas R. Lent for the respondent
HEARD & RELEASED ORALLY: February 3, 2005
On appeal from the order of Justice Douglas B. Maund of the Ontario Court of Justice, staying the proceedings dated March 10, 2004.
E N D O R S E M E N T
[1] The Crown alleges two errors by the trial judge in staying these proceedings for violation of s. 11(b) of the Charter of Rights and Freedoms. First, the trial judge gave undue emphasis to prejudice. The trial judge found prejudice in two respects. First, because of the respondent’s bail conditions he was restricted to Ontario. Second, because of the delay in laying the charges, coupled with the two-year delay after the charges were laid, it was fair to infer that there would be a loss of memory.
[2] We agree with the Crown in respect of the first matter. The respondent led no evidence of any prejudice from his bail conditions and we note that on the one occasion that the respondent wished to leave the province, the Crown consented to a bail variation.
[3] As to the second matter, it is a matter of common sense that memories will fade over time. Section 11(b) is designed to help mitigate that problem. It is in the interests of the accused and the public that cases come on for trial as soon as possible, especially cases relating to events many years before. We think it was open to the trial judge to infer some prejudice. In any event, it is apparent that the trial judge did not give a great deal of weight to that aspect of the case.
[4] The second alleged error arises from the need to use close circuit television facilities. We accept the Crown’s position that not all of the one-year delay while that issue was resolved was due to lack of institutional resources. The Crown suggests that only six and one-half months should be attributed to institutional delay and the remainder, five and one-half months, should be considered part of the inherent time requirements of the case.
[5] We agree that some part of the five and one-half months should be considered part of the inherent time requirements of the case. However, we are not prepared to accept that the entire period should be so regarded. When the complainant was unable to continue, some eleven months after the charge had been laid and almost one year after the respondent’s arrest, the case was already pushing the limits of what could be considered reasonable for the trial of a young person on what appeared to be relatively uncomplicated charges.
[6] It was incumbent on the system to give this case some priority and to make efforts to resolve the closed circuit television issue as expeditiously as possible. That did not happen. For example, it took four months just to schedule the first hearing of the application. Ultimately, the application was not heard until six and one-half months after the trial began. Such an application is relatively straightforward and should not require a great deal of time. The Crown did not call any evidence on the application. The Crown suggests that only two and one-half months of that time is institutional delay. In our view, a substantial part of that time cannot merely be considered part of the inherent time requirements of the case and is properly considered institutional delay.
[7] To conclude, while we do not agree with all of the judge’s reasons, we have not been persuaded that the errors affected the result. Aside from the matters set out above, the trial judge considered all of the relevant factors. He balanced those factors in accordance with the leading decisions from the Supreme Court of Canada and this court. He recognized the charges were serious but concluded that the delay was unreasonable. Even if the institutional delay were a few months less than that considered by the trial judge, it would still have been open to him to stay the proceedings. We are also very reluctant to order a new trial for a young offender in a case that has now been in the system for almost three years and relates to events going back to a period from 1998 to 2000.
[8] Accordingly, the appeal is dismissed.
Signed: “John I. Laskin J.A.”
“Marc Rosenberg J.A.”
“H. S. LaForme J.A.”