CITATION: R. v. Godin, 2008 ONCA 466
DATE: 20080612
DOCKET: C47525
COURT OF APPEAL FOR ONTARIO
MACPHERSON and CRONK JJ.A., and GLITHERO R.S.J. (ad hoc)
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
MARCEL GODIN
Respondent
Alexander Alvaro for the appellant
Mark Halfyard for the respondent
Heard: May 1, 2008
On appeal from the order of Justice Robbie Gordon of the Superior Court of Justice dated June 28, 2007.
MACPHERSON J.A.:
A. INTRODUCTION
[1] The respondent Marcel Godin was charged with sexual assault, uttering a death threat, and unlawful confinement. The offences were alleged to have occurred in Sudbury on May 8, 2005.
[2] On June 28, 2007, R. Gordon J. of the Superior Court of Justice granted a stay of proceedings after concluding that the respondent’s right to trial within a reasonable time under s. 11(b) of the Charter had been infringed.
[3] The Crown appeals, principally on the basis that the trial judge erred in his assessment of the prejudice factor that forms an important part of the constellation of factors that must be considered in a s. 11(b) application.
B. FACTS
[4] The respondent was charged with sexual assault, uttering a death threat, and unlawful confinement. It is alleged that the respondent lured the complainant into his vehicle. He threatened to kill her, forced her to perform fellatio, and then raped her. The respondent and the complainant had previously been in a relationship and it is alleged that the respondent was unhappy that he and the complainant were no longer together.
[5] The respondent was arrested on May 10, 2005. After several matters, including bail, disclosure, and a judicial pre-trial, were dealt with, a trial in the Ontario Court of Justice was scheduled for February 20, 2006.
[6] Four days before the scheduled trial date, the Crown received a report from the Centre for Forensic Sciences (“CFS”) that indicated that semen found inside the complainant when she went to a hospital the day after the alleged assault was not the respondent’s semen. The Crown and the defence agreed that the defence should receive the benefit of a preliminary inquiry; accordingly, on February 20, 2006, the Crown re-elected to proceed by indictment and a preliminary inquiry was scheduled for September 15, 2006. Defence counsel agreed to this date but also said: “But, obviously, it’s quite a ways down the road so, in the interim, I’m going to write to the court and to the Crown in an effort to secure an earlier date.” Within a week, defence counsel sent a letter along these lines to the court and the Crown. Neither replied.
[7] On September 15, 2006, the Crown chose to proceed with other cases. These matters concluded at 3:16 p.m.
[8] Crown counsel indicated that it was not realistic to start the preliminary inquiry. He said: “My colleague and I have spoken to the trial coordinator about some dates. We’re unable to get any dates today that are in this year. So, I’m concerned … Mrs. Gagnon is aware that there’s some urgency to this and she’ll find us a date. There are two dates in December that I’m available and Mr. Waltenbury is not.”
[9] Defence counsel stated: “I’ll just indicate, I’ve given Ms. Gagnon a list of all the available dates that I have between today and next May. So, I believe, she’s going to be checking officers’ schedules and contacting counsel. We’re very hopeful we can get an early date.”
[10] The presiding judge, Justice W.F. Fitzgerald, observed:
It is unfortunate that he could not be accommodated today, because people get ready, lawyers get ready, witnesses get ready, accused gets nervous, and complainants are most anxious to get matters on, and so is the Court, and perhaps it can be expedited to an early date.
[11] The matter was adjourned for a week until September 22, 2006. The accused was represented by an agent, Ms. Baker.[^1] The preliminary inquiry had been pre-set by counsel and the trial coordinator for February 5, 2007, and this was confirmed in a pro forma exchange involving Crown counsel, an agent for the defence, and the presiding judge.
[12] The preliminary inquiry proceeded on February 5, 2007. There were two witnesses, the complainant and her fiancé. Both were cross-examined by defence counsel. At the conclusion of their testimony, defence counsel conceded that “the evidence is sufficient on all counts for my client to stand trial as elected.”
[13] The trial was set in the Superior Court of Justice for November 14, 2007. There were several available dates in September and October, but defence counsel was unavailable.
[14] Defence counsel brought a Charter s. 11(b) application which was heard by the trial judge on June 20, 2007. At the commencement of the hearing, defence counsel informed the trial judge: “The trial dates with respect to this matter were set in assignment court on June 5th of this year and unfortunately I inadvertently set the trial dates for a day when I’m already scheduled for a jury trial on Manitoulin Island”. The application was adjourned several minutes to allow counsel to consult with the trial coordinator, which resulted in a new trial date of December 18, 2007.
[15] The s. 11(b) application then proceeded. The total elapsed time from the date of arrest to the November 14, 2007 scheduled trial date[^2] was approximately 30 months. The trial judge held that “the length of delay is such that an inquiry into its reasonableness is justified.”
[16] In conducting his inquiry, the trial judge essentially divided the 30-month period into three components.
[17] The first period was from the date of the charge (May 10, 2005) to the first scheduled trial in provincial court (February 20, 2006). The trial judge reasoned:
Having reviewed the records of the various court appearances, there is little doubt that the initial adjournments through to the first scheduled trial of February 20, 2006 were made with the agreement of Mr. Godin’s counsel and without indication of any kind on any record that any delay was unacceptable. Accordingly, waiver would apply to this 9 month period and in any event, the initial 9 month period between the date of the charge and the first scheduled trial falls within the acceptable guidelines for the disposition of charges by the Ontario Court of Justice.
[18] The third period considered by the trial judge was the time period from the date of committal at the conclusion of the preliminary inquiry (February 5, 2007) to the scheduled trial date in superior court (November 14, 2007). Like the first period, the trial judge saw no s. 11(b) problem in the third period. He said:
Mr. Godin was committed for trial eventually on February 5th, 2007. The delay from this point forward to the accepted date of trial is just more than 9 months, however, dates as early as September 12th were offered to Mr. Godin but were declined due to the unavailability of his counsel. I find that in these circumstances the delay in getting the matter to trial in the Superior Court of Justice was about 7 months, which is certainly within the guidelines suggested by the Supreme Court of Canada and which is especially reasonable given the intervening summer months when there is less than a full complement of judges available.
[19] This leaves the second or middle time period, which clearly concerned the trial judge:
The period of greater concern is from February 20th, 2006 when the parties first attended for the scheduled trial to February 5, 2007 when Mr. Godin’s preliminary hearing took place.
[20] The trial judge recorded that defence counsel was not available for a preliminary inquiry in December 2006. Accordingly, he viewed this second period as involving a delay of ten months, which he described as “well beyond any reasonable interpretation of the guidelines promulgated by the Supreme Court of Canada.”
[21] The trial judge ordered a stay of proceedings. The Crown appeals.
C. ISSUE
[22] The sole issue is whether the trial judge erred by ordering a stay of proceedings pursuant to s. 11(b) of the Charter.
D. ANALYSIS
(1) The legal framework
[23] The legal framework for a s. 11(b) analysis has been particularly well-described by Laskin J.A. in R. v. Qureshi (2004), 2004 CanLII 40657 (ON CA), 190 C.C.C. (3d) 453 at paras. 8-9 (Ont. C.A.):
Section 11(b) aims to protect both the individual rights of the accused and the rights of society. It protects three individual rights: it protects the accused’s right to security of the person by minimizing the anxiety and stigma of criminal proceedings; it protects the accused’s right to liberty by minimizing the effect of pre-trial custody or restrictive bail conditions; and it protects the accused’s right to a fair trial by ensuring that the proceedings occur while evidence is fresh and available.
Section 11(b) also seeks to protect two societal rights. First, it protects the public’s interest in having our laws enforced by having those who break the law tried quickly. Promptly held trials increase public confidence. Second, s. 11(b) seeks to protect the public’s interest in having those accused of crime dealt with fairly. [Citations omitted.]
[24] In determining whether s. 11(b) has been infringed, a court must balance these individual and societal goals with the length, causes and consequences of the delay in the progress of a case.
(2) The relevant factors
[25] The Supreme Court of Canada has identified a series of factors to assist in a s. 11(b) inquiry: (i) the length of the delay; (ii) waiver of time periods; (iii) the reasons for the delay, including (a) inherent time requirements of the case; (b) actions of the accused; (c) actions of the Crown; (d) limits on institutional resources, and (e) other reasons for delay; and (iv) prejudice to the accused: see R. v. Askov (1990), 1990 CanLII 45 (SCC), 59 C.C.C. (3d) 449 at 483-84, and R. v. Morin (1992), 1992 CanLII 89 (SCC), 71 C.C.C. (3d) 1 at 13.
[26] The trial judge identified and applied these factors. I will review his analysis.
(a) Length of delay
[27] The relevant period is from the day the charge is laid to the end of the trial: see Morin at p. 14. In this case, the delay was 30 months, well above the upper limit of 18 months for cases involving both a preliminary inquiry and a trial in superior court: see Morin at p. 21. The trial judge was correct to identify this delay as one requiring an inquiry.
[28] I also agree with the trial judge’s general assessment of the three periods involved in this case. The first period, the nine months between charge and the scheduled trial in provincial court, was within the eight to ten month Morin guideline. The third period, the seven months between the committal at the conclusion of the preliminary inquiry and the time the trial could have proceeded in superior court, was within the six to eight month Askov/Morin guideline. The second period, the 11 ½ months from re-election to the conclusion of the preliminary inquiry, was troublesome, especially if added to the first period of nine months in the provincial court.
(b) Waiver
[29] The trial judge concluded that the defence had waived three different time periods. The first period was the nine months from the charge to the first scheduled trial. I doubt that this clears the high hurdle for waiver set by the Supreme Court of Canada in Askov and Morin. However, nothing turns on this issue because, in my view, the trial judge’s alternative assessment of this period – “[it] falls within the acceptable guideline for the disposition of charges by the Ontario Court of Justice” – was clearly correct.
[30] The trial judge identified the second period of defence waiver as the 1 ½ months from December 22, 2006 to February 5, 2007 because defence counsel was unavailable for the preliminary inquiry on the former date. I agree. The trial judge found that the third period of defence waiver was two months from September 12, 2007 to November 14, 2007 because defence counsel was unavailable to start the trial in superior court on the former date. Again, I agree.
(c) Reasons for the delay
[31] One of the factors to consider in the context of the reasons for the delay is the actions of the accused. In Morin, Sopinka J. described this factor in this fashion at pp. 17-18:
This aspect of the reasons for the delay should not be read as putting the “blame” on the accused for certain portions of delay. There is no necessity to impute improper motives to the accused in considering this factor. Included under this heading are all actions taken by the accused which may have caused delay. In this section I am concerned with actions of the accused which are voluntarily undertaken. Actions which could be included in this category include change of venue motions, attacks on wiretap packets, adjournments which do not amount to waiver, attacks on search warrants, etc. I do not wish to be interpreted as advocating that the accused sacrifice all preliminary procedures and strategy, but simply point out that if the accused chooses to take such action, this will be taken into account in determining what length of delay is reasonable.
[32] In my view, some of the actions of the accused and his counsel, although not blameworthy, tell strongly against there being an “unreasonable” delay in this case.
[33] I begin with the book-ends in the court proceedings. The first court date after defence counsel was retained was June 3, 2005. Defence counsel was represented by an agent. The agent informed the court that he expected the accused to be present. The accused was paged but did not appear. The Crown was reluctant to proceed in his absence and suggested a two week adjournment and a court order that the accused appear on June 17, 2005. The presiding judge so ordered.
[34] On the next court date, the accused did not appear in spite of the court order made two weeks earlier.
[35] Turning to the other book-end, namely June 20, 2007, the s. 11(b) hearing, before defence counsel began his submissions on s. 11(b), he indicated that he was seeking an adjournment of the trial scheduled for November 14, 2007 because it conflicted with another scheduled trial. After discussion and a brief adjournment to talk to the trial coordinator, the trial was adjourned until December 18, 2007, with defence counsel, fairly, waiving this additional month and not relying on it in his s. 11(b) submissions. However, I note Crown counsel’s observation about the irony of what was happening in court that day: “In actual fact I don’t really know how – there can be appreciation of that on the record for the defence to say that, well this is too long, but it’s going to be longer anyway. Well what about prejudice and time going by.” I have real sympathy with this observation.
[36] Inside the book-ends of the court proceedings, there were decisions made by the defence that call into question its vigilance in moving the case forward. Twice defence counsel declined proffered court dates because of other commitments.
[37] In addition, the time frame that the trial judge identified, correctly, as the only troublesome period, namely February 20, 2006 to February 5, 2007, has two factors pointing against an “unreasonable delay” conclusion.
[38] First, the re-election to a trial in superior court coupled with a preliminary inquiry was done on consent and enured significantly to the respondent’s benefit. At the preliminary inquiry, defence counsel was able to cross-examine the complainant and her fiancé to lay the groundwork for exploration at trial of the perhaps surprising CFS result.
[39] Second, on September 15, 2006, when the preliminary inquiry was not reached because of other matters, the judge, defence counsel and Crown counsel all recognized that this was a case in s. 11(b) trouble and discussed it with appropriate concern: see R. v. R.M. (2003), 2003 CanLII 50092 (ON CA), 180 C.C.C. (3d) 49 at para. 9 (Ont. C.A.). This case was adjourned to “pre-set” a potential new date with the trial coordinator and to return to court on September 22, 2006. On the return date, the preliminary inquiry was set for February 5, 2007. Defence counsel was not available on an offered date of December 22, 2006. Nor did he attend to voice any objection to the new date. In these circumstances, I conclude that the trouble identified in court on September 15 had been discussed and resolved by agreement at the “pre-set” meeting between the two court dates. If this was not the case, the court appearance on September 22, 2006 was the time for defence counsel to make a clear objection in front of the judge.
[40] I emphasize that, like Sopinka J. in Morin, I do not blame defence counsel for any of the conduct and decisions described above. However, also like Sopinka J. in Morin, I conclude that “if the accused chooses to take such action, this will be taken into account in determining what length of delay is reasonable.” In my calculus, the events I have described – the book-ends and the events between them – do not suggest an unreasonable delay.
(d) Prejudice
[41] After concluding his analysis of the time periods involved in the case and the reasons for various delays, the trial judge turned to the question of prejudice:
Under Section 11(b), Mr. Godin is given the constitutional right to a trial within a reasonable time. He has not received it and there has been prejudice as a result.
As has been found in many cases, awaiting the outcome of criminal charges is, in itself, a prejudice. Mr. Godin has had the spectre of these charges, his pending trial and fairly strict bail conditions hanging over his head now for well over two years. Since his release on May 10, 2005, he has been directed by the court where to live, with whom and has been required to be in his residence by 10 o’clock each evening. These terms represent significant and real restrictions on his freedom.
[42] With respect, I have concerns with this analysis. To begin, the trial judge confuses the role of prejudice in the s. 11(b) analysis quoted above. Instead of considering prejudice to the accused as one of many factors to determine whether the trial was unreasonably delayed, the trial judge first concludes that s. 11(b) had been infringed and then finds as a result that the accused suffered prejudice. However, the case law makes it clear that prejudice to the accused is to be considered before concluding whether the trial was unreasonably delayed.
[43] Second, I do not agree that, on the merits, the appellant’s bail conditions amount to any serious prejudice. He was charged with very serious offences – a violent sexual assault, uttering a death threat, and unlawful confinement. He has not been subject to house arrest. In a formal sense only, he has been told where to live and with whom; the reality is that he has lived in his community and with, consecutively, a surety, his mother, and a new girlfriend. The changes in these living arrangements were made at his request and with the Crown’s consent. The curfew term was removed after a year, again with the Crown’s consent. In short, given the very serious offences, and the allegedly terrifying circumstances surrounding the offences, the respondent’s bail is not particularly onerous.
[44] I deal with one final point with respect to prejudice. Although the trial judge did not mention it, the respondent submits that there is prejudice caused by the passage of time and the diminution of the memory of witnesses, especially the complainant’s and her fiancé’s memory of when they had sexual relations near the time of the alleged assault. I disagree. This submission strikes me as speculative in at least two respects – the difference in memory between 18 months and 30 months and whether it might enure to the benefit of the Crown or the defence.
(3) The balance
[45] I return to the legal framework set out in Qureshi.
[46] In my view, the delay in this case was not unreasonable. By and large, the delay was caused by a constellation of explicable factors.
[47] A particularly important factor was conversion of the case from a trial in provincial court to a trial in superior court coupled with a preliminary inquiry. This fundamental change occurred through mutual agreement of the Crown and defence and greatly benefitted the defence.
[48] Moreover, this case deserves to be heard on the merits. As Sopinka J. said in Morin at p. 13: “As the seriousness of the offence increases so does the societal demand that the accused be brought to trial.” The offences in this case are very serious and the alleged circumstances that gave rise to the criminal charges were, from the complainant’s perspective, violent, terrifying and probably deeply damaging.
E. DISPOSITION
[49] I would allow the appeal, set aside the stay of proceedings, and direct that the matter proceed to trial. I would request that the trial coordinator in Sudbury schedule as early a trial date as possible.
“J.C. MacPherson J.A.”
“I agree E.A. Cronk J.A.”
GLITHERO R.S.J. (ad hoc) (Dissenting):
[50] I have had the benefit of reading the reasons prepared by MacPherson J. A. While I agree with much of what he said, I have come to a different conclusion. It is appropriate that I set out those matters on which I differ, and the reasons behind my conclusion that the Crown’s appeal should be dismissed.
[51] I agree both with the trial judge and with MacPherson J. A. that it was appropriate to consider the thirty months which had elapsed between the laying of the charge and the trial date in Superior Court as falling into three component time periods. I further agree that it is appropriate to consider the time period between the laying of the charge and the first scheduled trial date in Ontario Court, and the third period of time between the committal for trial and the Superior Court trial date as being properly accounted for as falling within the guidelines proposed in R. v. Morin (1992), 1992 CanLII 89 (SCC), 71 C.C.C. (3d) 1 (S.C.C.).
WAIVER
[52] Morin directs that waiver is the first factor to consider. I would not find that the time period from December 22, 2006 to February 5, 2007 was waived by the defence by reason of the fact that the date of December 22, 2006 was apparently offered as an available date to replace the postponed date of September 15, 2006, but defence counsel was unavailable. The majority concludes that the trial judge so ruled and expresses agreement with that decision. With respect I do not believe the trial judge so ruled. At page 6 of the trial judge’s reasons he held “even if I attribute the time thereafter as a defence delay, there is still delay of ten months in conducting the preliminary hearing.” I do not read this as a finding by the trial judge that it was a delay properly attributable to the defence, but rather the trial judge is recognizing that argument and in effect saying that in his view, even if that argument was accepted, the delay was still excessive.
[53] The reason that I would not attribute that period of time to the defence is that counsel’s unavailability on that offered date occurred after the matter had not proceeded on the originally scheduled trial date of February 20, 2006, nor on the second scheduled date of September 15, 2006. As I will explain later, within my analysis as to the reasons for the delays, I attribute the responsibility for the case not proceeding on both dates to the Crown. In my opinion defence counsel can reasonably expect that matters will proceed when scheduled, and fill his or her subsequent calendar with other matters accordingly. To hold that the delay clock stops as soon as a single available date is offered to the defence and not accepted, in circumstances where the Crown is responsible for the case having to be re-scheduled, is not reasonable. Defence counsel cannot hold the balance of their schedule without commitments so as to be in a position to agree to a single make up day offered by the court and agreeable to the prosecution. If defence counsel could be reasonably expected to do so, it seems to be equally reasonable to require both the court and the Crown to also maintain “backup” available days so as to facilitate early replacement of a cancelled trial date. Indeed, it was so held in R. v. Maracle (1998), 1998 CanLII 841 (SCC), 122 C.C.C. (3d) 97 (S.C.C.). See also R. v. Satkunananthan, [2003] O.J. No. 1019 (C.A.) at paragraph 56.
[54] It appears from the record that in the jurisdiction from which this case arises, many of these discussions are held in scheduling sessions with the trial coordinator. A full account of the dates offered and who was available or unavailable on each of them is not before us, either in the form of a transcript, if the sessions are recorded, or in affidavit form.
[55] In R. v. Smith (1989), 1989 CanLII 12 (SCC), 52 C.C.C. (3d) 97 (S.C.C.), the Court held that while agreement to a future date will usually give rise to an inference of waiver, where the new date is a replacement date resulting from a Crown adjournment, expressions of concern about the delay by defence counsel can rebut the inference of waiver. In my opinion defence counsel in this case expressed concern about delay on at least two occasions to which I will refer later.
[56] Accordingly the entire 11 ½ month period from February 20, 2006 to committal on February 5, 2007 should be examined.
REASONS FOR THE DELAY
[57] The trial did not proceed as originally scheduled on February 20, 2006. Approximately four days earlier the Crown had received a verbal report indicating that tests by the Centre of Forensic Sciences (CFS) determined that sperm found in a vaginal swab from the complainant was not that of the accused. The CFS also provided information as to the length of time prior to the taking of the vaginal swab that the sperm could have been deposited. Apparently two differing opinions were provided by the CFS to the Crown, one estimating six to twelve hours and the other estimating twelve to twenty-four hours. The record is not very clear as to when each of those opinions were received. Before the trial judge on the February 20, 2006 trial date defence counsel indicated that he had been alerted to these developments in the few prior days, but had just received copies of the reports that morning.
[58] Crown counsel before Gordon J. submitted that this information was of critical importance to the defence, particularly given the complainant’s admission to the worker gathering the sexual assault kit at the hospital, that she had not had sexual intercourse for three days before the alleged attack. As Crown counsel indicated before Gordon J, the new information raised a “glaring inconsistency” in the complainant’s evidence, and hence the Crown case. This is a case in which credibility was the prime issue.
[59] The adjournment of the trial took place as a result of last minute disclosure. I do not suggest personal fault on the part of the Crown, who disclosed the new information promptly. The delay in making this disclosure arose from the fact that the CFS only disclosed the information to the Crown on the eve of trial, no doubt having just finished the testing at that time.
[60] In my opinion within the s.11(b) analysis, the Crown has to bear the responsibility for the adjournment of a trial because of late disclosure, when that late disclosure comes from the CFS. This court so held in R. v. Seegmiller (2004), 2004 CanLII 46219 (ON CA), 191 C.C.C. (3d) 347 at paragraphs 6 and 15, leave to appeal dismissed [2005] S.C.C.A. No.64. See also R. v. Jones [2005] O.J. No. 2716.
[61] The case was next scheduled for September 15, 2006 for a preliminary inquiry. When that date was set on February 24, 2006, defence counsel confirmed that he was available that date but advised the presiding judge that he would be writing a letter to the court and to the Crown advising them of his earlier available dates because “obviously, its quite a ways down the road.” He wrote that letter and offered 31 earlier available dates. He received no reply from either the court or the Crown.
[62] In my opinion defence counsel’s actions are only consistent with a desire on the part of the defence to obtain an earlier trial date than the replacement date set of September 15, 2006.
[63] On September 15, 2006, the matter did not proceed as the Crown elected to call other cases first. We do not have a transcript for that entire day and accordingly do not know the nature or urgency of the other matters called in priority to this one. It’s fair to assume that the Crown that day had good reasons for proceeding as he or she did, but this was a case that had already missed one trial date, and was clearly in trouble in terms of the appellant’s s.11(b) rights. In my opinion, greater effort ought to have been made to either clear that docket of other cases so as to permit this one to proceed, or an additional court ought to have been set up for this case. If there were insufficient resources available to permit that to be done, that is to be attributed to the Crown for purposes of the s. 11(b) analysis.
[64] In R. v. R.M. (2003), 2003 CanLII 50092 (ON CA), 180 C.C.C. (3d) 49, this court held at paragraph 9 that when a case is already identified as being in trouble from the delay perspective, there is an obligation on the court and on counsel to take steps to remedy this situation. This view was reaffirmed in R. v. N.N.M., 2006 CanLII 14957 (ON CA), [2006] O.J. No.1802 (C.A.). Here, as a result of the case being unable to proceed on the original trial date owing to the late Crown disclosure, there was an obligation on the court and on the defence to make special effort to expedite the delayed hearing of this matter. Defence counsel made his efforts when he wrote in February, 2006 offering earlier dates. There is nothing in the record to indicate that the court or the Crown did anything to facilitate an early replacement date. Rather than facilitating an earlier date to replace the original adjourned trial date, the Crown brought about an adjournment of the replacement date by choosing to proceed with other matters in priority to this one.
[65] For these reasons, in my opinion, the Crown bears responsibility for the delay from February 2006 to the eventual committal in February 2007. Furthermore, within that period of delay, the defence signified concern about the delay, and made efforts to try and shorten the period of delay.
[66] Even when the matter did not proceed on September 15, 2006, Crown counsel indicated to the court that there was some urgency to the matter and that it was hoped that the trial coordinator would find them an earlier date than the February 2007 eventual preliminary hearing date. Defence counsel indicated that he had given a list of all his available dates, which in my opinion, is again indicative of a concern about delay on the part of the defence.
[67] I conclude that the Crown is responsible for the 11 ½ month period of delay.
PREDJUDICE
[68] As was held in Morin, some measure of prejudice is usually properly inferred simply by reason of the delay, occasioning as it does a longer period of bail restriction, and the anxiety which follows delays and postponements of the day of adjudication. I agree that elements of inferred prejudice were not overly weighty in this case, but they are present. Bail restrictions, even if classified as minimal, have been held to demonstrate prejudice: R. v. Williams, [2000] O.J. No. 1400 (C.A.), leave to appeal refused [2000] S.C.C.A. No. 242. Apart from inferred prejudice, the defence may tender evidence of actual prejudice.
[69] In my opinion, the appellant demonstrated the existence of actual prejudice in support of the application for a stay of proceedings. This was a credibility case. The DNA testing showed the sperm found in the vaginal swab was not that of the appellant. In answering questions during the compilation of the sexual assault kit, the complainant indicated that she had not had sexual intercourse for three days priors to the alleged assault. When challenged on this at the preliminary inquiry she claimed alternatively that she could not remember, or that perhaps she didn’t understand the question that had been asked by the sexual assault worker, or as she stated “I don’t know”. Both she and her new boyfriend testified that they had not had sexual intercourse between the time of the alleged assault and the collection of the sexual assault kit.
[70] At the preliminary inquiry the complainant’s boyfriend testified under oath that he had offered to provide a DNA sample to someone, but could not remember who. Common sense indicates that it was not the defence. His offer was apparently not pursued.
[71] Consequently, a crucial issue at trial would be whether the sperm found in the sample was that of the boyfriend, despite her denials to the sexual assault worker, and her sworn inability to remember at the preliminary inquiry, or, whether it was that of someone else. That latter possibility would be highly damaging to the complainant’s credibility, and to the Crown’s case.
[72] In the proceedings before Gordon J. trial defence counsel argued that the delay had occasioned actual prejudice in that the passage of time had improved the plausibility of the complainant’s explanation that she could no longer remember, and of her suggestion that maybe she didn’t understand what she was being asked by the sexual assault worker. As juries are often instructed, the passage of time between the event and the testimony concerning it often makes an inability to remember more understandable. The interrelationship between delay and potential prejudice resulting from fading memories, and thus adversely affecting trial fairness, particularly in sexual assault cases, has been recognized in R. v. Igbinosun, [2003] O.J. No. 5190 (S.C.J.) at paragraph 59.
[73] In the reasons granting the stay of proceedings, the trial judge does not advert to this defence contention of actual prejudice. In my opinion, it was an error to fail or neglect to do so. The transcript of the hearing before the trial judge clearly demonstrates that the issue was clearly advanced before him, although not responded to by trial Crown counsel. In R. v. Sheppard (2002), 2002 SCC 26, 162 C.C.C. (3d) 298, the Supreme Court of Canada gave directions concerning the need for reasons. While reasons are clearly not mandatory in respect of every aspect of a case, in my respectful opinion, reasons were required in respect of a defence submission clearly calling into play a mandated issue requiring examination in a s.11(b) analysis. In the context of this appeal, the failure to do so is immaterial to the outcome of the appeal in that the reasons would have either accepted the argument and thereby added further support to the finding of a s.11(b) breach, or would have rejected the submission and been neutral in the result.
[74] While other members of the panel classify the nature of the actual prejudice claim to be speculative, I do not agree. To some extent any such claim is speculative in that one cannot know for certainty the outcome of the trial, and hence the effect of the prejudice on trial fairness. Of course, if the outcome of the trial is unfavourable, one cannot apply for a stay at that stage of the proceedings or on appeal, (R. v. Rabba (1991), 1991 CanLII 7073 (ON CA), 64 C.C.C. (3d) 445 (Ont. C.A.)).
[75] At paragraphs 41 and 42, the majority conclude that the trial judge erred by stating that the accused had not received a trial within a reasonable time before he began his analysis of prejudice. In my opinion a fair reading of the paragraph suggests that he misspoke rather than erring by failing to deal with prejudice prior to stating the result as he did. The fact is that he did go on to examine the prejudice issue, which would have been unnecessary had he erroneously concluded that it was immaterial to the s. 11(b) analysis. Read as a whole, I conclude that he clearly understood that prejudice is a necessary part of the required examination.
[76] While the issue of prejudice is a necessary element to the legal analysis of the s. 11(b) issue, on a broader approach the trial judge’s comment is a fair and accurate one. Delay is prejudicial to many values and interests which underpin the Charter protections. In a real sense it is appropriate to say that prejudice results from delay. Indeed, I suggest recognition of that fact resulted in the inclusion of s. 11(b) to protect against it.
[77] The burden of proof on an applicant seeking Charter relief is to show a violation of a Charter right on a balance of probabilities. As an element of the s.11(b) analysis, prejudice need not be shown beyond a reasonable doubt. In my assessment, the extra passage of time made it more likely than not that the appellant’s ability to effectively cross-examine the complainant and her boyfriend on the important DNA issue had been diminished.
[78] I am not unmindful of society’s high interest in having matters tried on their merits. An equally high priority for society is to see that trials are conducted fairly. Where trial fairness is compromised by delays occasioned by events for which the Crown is responsible, then a remedy must be granted. The societal interest in having matters proceed to trial is heightened in the case of more serious charges, but equally important is everyone’s interest that such trials be fair.
[79] Here the period of delay under consideration of just under a year in itself exceeds the guidelines suggested in Morin, and it occurs after the suggested guideline period had already been expended getting the case that far. Longer periods of delay are tolerable in complex and lengthy cases. This was neither. It was a credibility case of few days expected duration. Only one day was required for the preliminary. That would make easier the prompt finding of a replacement date.
[80] While the majority opines that the conversion of this matter from a trial to a preliminary was of some advantage to the appellant, I observe that it also substantially enlarged the available penalty range to which the appellant became exposed.
[81] In my opinion the delay of just under one year between the original trial date and the eventual committal date, which delay was the result of two developments for which the Crown is responsible, and which delay in my assessment, was likely to have impacted negatively on the appellant’s ability to make full answer and defence in a fair trial, could and should lead to a conclusion that the appellant’s s. 11(b) right was infringed or denied.
[82] The conclusion of the trial judge was supportable on the facts and did not result from any material error.
[83] In my assessment we should not interfere with the trial judge’s exercise of the discretion entrusted to him under s. 24 (1).
[84] For these reasons I would dismiss the appeal.
RELEASED: June 12, 2008 (“J.C.M.”)
“C. Stephen Glithero R.S.J. (ad hoc)”
[^1]: Mr. Waltenbury is listed as defence counsel on the transcript cover, but it is clear from the transcript that he was not in attendance.
[^2]: Defence counsel waived any delays after November 14, 2007 because he acknowledged, fairly, that such delay would flow from his mistake concerning his availability for trial in November 2007.