R. v. MacMunn, 2008 ONCA 520

CITATION: R. v. MacMunn, 2008 ONCA 520

DATE: 20080627

DOCKET: C47597

COURT OF APPEAL FOR ONTARIO

GILLESE, ARMSTRONG and BLAIR JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Appellant

and

CHRISTOPHER MacMUNN

Respondent

Peter Scrutton, for the appellant

James Clark, for the respondent

Heard: February 29, 2008

On appeal from the order of Justice Arthur M. Gans of the Superior Court of Justice dated July 24, 2007.

ARMSTRONG J.A.:

INTRODUCTION

[1] The Crown appeals an order in which Justice Arthur Gans of the Superior Court of Justice stayed the proceedings pursuant to s. 11(b) of the Charter of Rights and Freedoms. The respondent, Christopher MacMunn, was charged with possession of child pornography, accessing child pornography and making child pornography by copying material from the internet onto computer disks. There was a 27 ½ month delay between the time of arrest and the commencement of the trial.

[2] The respondent was arrested on April 1, 2005 and after thirteen appearances in the Ontario Court of Justice, a two day preliminary hearing was set on February 23, 2006 to commence on January 8, 2007. The preliminary hearing concluded with a committal for trial on February 12, 2007. The case was fixed for a trial to commence in the Superior Court on July 23, 2007. At the opening of trial, counsel for the respondent made his application to stay the proceedings which was granted by Justice Gans on the basis of unreasonable delay attributed to the slow pace of Crown disclosure and institutional delay in respect of the commencement of the preliminary hearing.

[3] Counsel for the Crown submits that the trial judge committed two errors of law in granting the stay:

(i) he failed to assess properly the inherent time require-ments of the case; and

(ii) he failed to balance the prejudice suffered by the respondent from the delay with the societal interest in having a trial of the charges on the merits.

[4] For the reasons which follow, I would dismiss the appeal.

BACKGROUND

[5] The charges against the respondent arose out of an American investigation (code named “Project Falcon”) into Internet child pornography. Project Falcon identified sixty-seven potential suspects who lived in Toronto. The respondent was one of the suspects. A search warrant was executed on the respondent’s residence on April 1, 2005 and he was arrested the same day.

[6] The respondent was released on bail on April 4, 2005 subject to a number of conditions. On that court appearance, the case was adjourned to April 28, 2005 in order for the Crown to provide disclosure.

[7] After the initial appearance on April 4, 2005, there were twelve further attendances in the Ontario Court of Justice prior to the court fixing a preliminary hearing date in February 2006 for January 2007. A dominant feature of virtually all but two or three of the twelve attendances in the Ontario court was defence counsel’s pursuit of disclosure of the Crown case.

[8] During this period, counsel for the defence forwarded several letters to the Crown raising disclosure requests. As of February 20, 2006, there were still outstanding materials relating to the information to obtain the search warrant against the respondent and information from the American investigation. Also outstanding at that time were requests for material seized from the Toronto Dominion Bank in March 2004 related to the respondent and the notes of the police officer who was involved in the seizure of materials from the Toronto Dominion Bank. It is worth noting here that the notes of that police officer were not produced until December of 2006.

[9] What emerges from a review of the transcripts of the many court attendances and the correspondence between counsel for the defence and the Crown is that the disclosure requests of the defence counsel were not being attended to within a reasonably expected time frame. It is acknowledged by counsel for the appellant that this case was not a model of case management. The situation was further exacerbated by the fact that the assigned Crown was out of the country on holiday from some time in November 2005 to the end of January 2006. There is no doubt that the Crown assigned to the case in this interim period was engaged in a game of “catch up” in respect of the disclosure issues.

[10] As indicated above, the preliminary hearing was fixed on February 23, 2006 for two days in January 2007. On February 23, 2006, the presiding judge expressed his concern about the length of time that would elapse before a preliminary hearing could take place. As a result, the judge personally spoke with the trial co-ordinator and confirmed that the earliest available dates were in January 2007.

[11] The respondent was committed for trial on February 12, 2007. The case then moved ahead with relative dispatch to a trial date on July 23, 2007 when the s. 11(b) application was heard.

The Section 11(b) Charter Application

[12] In his ruling, the trial judge addressed the evidence concerning disclosure as follows:

There appeared to be false steps, if not stutter steps, in the way the material was being collected and delivered to the accused through his counsel, which, in my view, could have been avoided had someone taken the leadership in determining that all aspects of the investigation resulting in the applicant’s arrest, met the Crown’s disclosure obligation.

In my view, the issue is aptly underscored by two examples:

1. The problems attendant to the obtainment of unsealing orders pursuant to s. 487.3 of the Criminal Code in respect of the two search warrants that the police had obtained as part of the investigation; and

2. The fact that the officers notes were not delivered at the same time as the Inform-ations to Obtain were disclosed.

In other words, the Crown or the officer in charge knew or ought to have known from the outset the manner in which the investigation led to the arrest of the accused and knew as a consequence thereof that two search warrants had been obtained in respect of this accused and that disclosure of notes and material in respect of same would be integral to the defence of the case. That having been said, all information necessary to obtain a vacating order should have been communicated to the accused within the intake period so that he could have moved with greater dispatch to obtain the requisite vacating orders had he chosen to do so before the end of summer of 2005.

I would note that [the Crown] acknowledged that all this information would have been readily and routinely apparent in the officers’ notes, which notes particularly those of the officers involved in the obtainment of the search warrants at first instance, only came to light after numerous letters, numerous attendances at court, and in dribs and drabs over months. In my view, this form of disclosure, while not necessarily arising from some form of mala fides, occurred, minimally, as a result of poor case management, for which the Crown, generically, must assume responsibility.

[13] The trial judge reviewed the balance of the time from the fall of 2005 to the commencement of the preliminary hearing in January 2007. He observed that the disclosure requests that were outstanding in February 2006 remained outstanding until November 2006.

[14] Counsel for the Crown submitted to the application judge that the case at bar was a complex case which at least in part explained the delay in disclosure. The trial judge rejected this submission. In his opinion, the case was not a “one off”. It was one of many such cases and what was needed for disclosure was not unique to this case.

[15] It was the trial judge’s view that the parties should have been ready to set a date for the preliminary hearing in the early fall of 2005:

In other words, had the parties been ready to set a date for the preliminary [hearing] in the early fall of 2005, as they should have been, all things considered equal, I am not able to determine by hindsight whether or not the preliminary would have been 10 to 11 months out from that date or earlier, as seems to have been suggested by Justice Bovard when he was reviewing the matter at the end of February 2006. It may well have been that the Morin guidelines could have been more readily and easily reached had the disclosure or other such matters, for which I hold the Crown responsible, not been resolved more readily and expeditiously.

[16] Finally, the trial judge concluded:

In my view, the Crowns associated with this type of prosecution, serious as it undoubtedly is, should have been able to respond in a more timely fashion, particularly since Mr. Clark, who did not strike me as one who postured unnecessarily, was writing countless demand letters, a trait not routine for the defence bar, in general.

On balance, I am of the view that the time below was not just a ‘tad long’, but was excessive and in the final analysis unreasonable.

[17] In arriving at his conclusion, the trial judge considered the issue of prejudice to the respondent. He began by observing that prejudice can be inferred from the mere fact of the overall delay. However, in this case, there was evidence of actual prejudice in an affidavit filed by the respondent and unchallenged by cross-examination.

[18] In his affidavit, the respondent deposed that the delay has had an effect on his health. He was prescribed anti-depressant medication shortly after his arrest and, at the time of the application, the respondent was taking a very high dosage that his doctor described as the maximum dosage. The respondent testified that he was sick to his stomach most mornings.

[19] The numerous attendances at court for remands related to disclosure have proved expensive in terms of the payment of legal fees. The respondent’s legal fees have exceeded the original estimate for the entire case by more than $10,000.

[20] The restrictions placed on the respondent’s travel do not permit him to travel to the head office of his employer in Virginia. His employer had requested that he travel to Virginia at least eight different times but he has had to decline the request and he said that he is running out of excuses. He testified that he is at risk of losing his job.

[21] The respondent described himself as a person who, prior to these charges, led an active outdoor life. He was prohibited from entering parks where persons under 18 may be found. He could not take a bicycle ride with his girlfriend through a park because of this prohibition. Similarly, he has been unable to participate in baseball which was a significant part of his recreational activities prior to his arrest.

[22] Because of his inability to travel outside Ontario in Canada, except for employment reasons, he could not visit his brother’s family in Nunavut.

[23] On the issue of prejudice, the trial judge concluded:

In my view, there is some evidence, and I underscore the word “some”, of prejudice which has affected Mr. MacMunn beyond the mere charges and which is not restricted to the charges. In the final analysis, I am satisfied that the delay has affected his relationship with his employer, his family, and latterly his girlfriend. Indeed, there is some evidence that he is obliged to take prescription medicine to combat the mild depression from which he presently suffers, which state I concede might arguably arise, as well, from the charges themselves. I hasten to observe that the prejudice about which I have spoken is but one factor and not necessarily determinative of the issues at hand.

ANALYSIS

[24] Section 11(b) of the Charter provides:

Every person charged with an offence has the right to be tried within a reasonable time.

The Approach to Unreasonable Delay – The Factors

[25] In the much cited case of R. v. Morin (1992), 1992 89 (SCC), 71 C.C.C. (3d) 1 (S.C.C.) at 13, Sopinka J. listed the relevant factors for a court to consider in assessing whether there has been unreasonable delay:

1. the length of the delay;

2. waiver of time periods;

3. 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

4. prejudice to the accused.

Sopinka J. emphasized that the approach to a determination of whether there has been unreasonable delay is “not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay.” See Morin at page 13.

[26] In R. v. Bennett (1991), 1991 2701 (ON CA), 64 C.C.C. (3d) 449 (Ont. C.A.) at 467, aff’d 1992 61 (SCC), [1992] 2 S.C.R. 168, Arbour J.A. stressed the importance of taking into account the total period of delay:

It is easy to lose sight of the importance of the total period of delay, particularly when engaged in an examination of the causes for various components of the total delay. A case may take too long to reach the preliminary inquiry, but then may be tried very expeditiously after committal, or vice versa. Ultimately, it is the reasonableness of the total period of time that has to be assessed, in the light of the reasons that explain its constituent parts.

[27] The Crown acknowledges that the 27 ½ month delay warrants inquiry. The Crown does not allege that there was constitutional waiver of any of the time periods by the respondent.

Did the trial judge fail to assess properly the inherent time requirements of the case?

[28] In considering the reasons for delay, Sopinka J. in Morin described the inherent time requirements as the time required to prepare a case for trial. One of the requirements to consider is the complexity of the case. The more complicated the case, the longer will be the time for preparation.

[29] In addition to the complexity of the case, Sopinka J. identified the “intake requirements” as common to most cases. The intake requirements include such matters as retaining counsel, bail hearings, police and administration paperwork and Crown disclosure.

[30] In respect of inherent delay in this case, counsel for the Crown submits:

Nowhere in the trial judge’s reasons does he refer to, let alone consider, the inherent time requirements of this particular case. Save for rejecting the Crown’s characterization of this case as complex, at no point in his reasons does Gans J. consider the factors unique to this case and their import in the s. 11(b) analysis.

I disagree.

[31] Counsel for the Crown argues that this case was complex because, among other things, two Informations to Obtain had to be unsealed. He further submits that the respondent’s arrest arose from a large scale international investigation which gave rise to a dispute over what material should be produced from that investigation. The Crown referred to other evidence which he said supported his argument that this was a complex case. However, the trial judge concluded differently.

[32] I disagree with the Crown’s position in respect of the complexity issue. The trial judge in this case is a very experienced judge. It would be surprising if this court did not defer to his view of what is and what is not a complex case. His reasons indicate that he paid particular attention to the issue of complexity. His conclusion is amply supported by the evidence. The Crown’s submission is an invitation to retry this issue. In my view, the finding in respect of the complexity issue is a finding of fact and I see no basis upon which we would interfere with that finding.

[33] In addition to the issue of complexity and as part of the argument concerning the inherent time requirements related to disclosure, counsel for the Crown makes the following submissions in respect of the conduct of counsel on both sides of the case:

(i) None of the disclosure issues resulted in either the preliminary hearing or the trial being adjourned once the dates were set and that the state of disclosure did not delay the setting of the dates.

(ii) There is no allegation that the Crown’s position in respect of the unsealed materials was not taken in good faith.

(iii) On September 15, 2005, the proceedings were adjourn-ed for seven weeks at the request of defence counsel so that he could gather materials for discussion with the Crown presumably for resolution purposes.

(iv) On December 15, 2005, the defence sought a four week adjournment to January 12, 2006 which was not related to the timeliness of disclosure.

(v) A trial date of June 11, 2007 was offered but declined by counsel for the respondent in favour of the July date.

[34] I do not agree that none of the disclosure issues was responsible for the delay. It is clear that once the preliminary hearing date and trial dates were eventually fixed, there were no adjournments of those dates. However, what is abundantly clear is that during the period between the respondent’s arrest on April 1, 2005 and the fixing of the preliminary hearing date in February 2006 for January 2007, there was a period of considerable delay. The trial judge found that the length of the delay was unreasonable and that it was caused by the slow pace of disclosure. There was much evidence to support his conclusion. The trial judge also concluded that this was a case in which disclosure should have been completed by early fall 2005. Common sense suggests that if it had been completed by early fall, the case would have proceeded to trial much more quickly.

[35] I agree that there is no allegation that the Crown’s position with respect to the unsealed documents was not taken in good faith. The trial judge also appears to have agreed that this is so. However, this does not change the analysis that the delay was unreasonable. This is not a fault finding exercise.

[36] In respect of the seven week adjournment on September 15, 2005, counsel for the Crown observes that the trial judge properly considered this a neutral request. However it is characterized, it had no effect on the pace of disclosure which is what was the root cause of the delay. Counsel for the defence did not become aware of the second search warrant until November 1, 2005. The defence brought an unsealing application two days later on November 3, 2005.

[37] Similarly, the adjournment from December 15, 2005 to January 12, 2006 appears to have been irrelevant to the pace of disclosure. Disclosure was still dragging. As noted above, the Crown does not allege constitutional waiver on the part of the respondent in respect of either the September 15 or December 15 adjournments.

[38] The fact that defence counsel preferred a trial date in July rather than in mid-June is of no moment. By that time, the proceedings had already exceeded the guidelines in Morin (8-10 months) for the proceeding in the court below by a number of months – particularly when the institutional delay in respect of the lengthy adjournment for the preliminary hearing accounted for a further 10 ½ month delay.

Did the trial judge fail to balance the prejudice to the respondent with the societal interest in having a trial on the merits?

[39] Counsel for the Crown submits that the actual prejudice the respondent suffered as a result of the delay as opposed to the charges against him was minimal. He further submits that the trial judge erred in failing to balance the nature of the prejudice against the societal interest in having a trial on the merits.

[40] There was a significant amount of evidence of prejudice which was attributable to the delay as opposed to the charges themselves. Indeed, there were three pages comprising eleven paragraphs in the respondent’s affidavit under the heading: “How the delay in this case has affected me”. There was no challenge to this evidence by way of cross-examination.

[41] At the outset of his reasons for judgment, the trial judge referred to the legal principles, derived from Morin and other cases, which should govern his consideration of this case. In particular, he said:

The Court of Appeal and the Supreme Court of Canada, on countless occasions, have reminded trial courts that s. 11(b) is designed to protect both the individual rights of an accused, and the rights of society, including the community’s interest in law enforcement, by having those who break the law tried quickly and having those accused of a crime dealt with fairly (see, for example, the Court of Appeal decision in R. v. Queshi (2004), 2004 40657 (ON CA), 190 C.C.C. (3d) 453 and the Supreme Court of Canada decision in R. v. Morin (1992), 71 C.C.C. (3) 1). As was observed by Sopinka J. in Morin, it is now mandated that the assessment of whether an accused’s right to be tried within a reasonable time has been infringed involves the balancing of the interests that s. 11(b) is designed to protect against ‘…the factors which inevitably lead to delay or are otherwise the cause of delay’.

In that respect, the trial judge is obliged to enter upon a balancing exercise, which requires an analysis as to whether or not the delay experienced in any particular case is constitutionally unreasonable. There are four factors, which are critical to this assessment:

• the length of the delay

• any waiver by the accused of the time periods involved;

• reasons for the delay; and

• any prejudice that the accused in fact or inferentially suffered.

[42] In respect of prejudice, the trial judge said:

The Court of Appeal reiterated in R. v. Kovacs-Tator (2004), 2004 42923 (ON CA), 192 C.C.C. (3d) 91 that an assessment of prejudice is a significant aspect of the analysis required in an application of this nature. That being said, factors inherent in the criminal charge process in and of itself, such as the stigma of being charged, the terms of release, and the circumstances of arrest are not of direct concern. It has also long been held, however, that prejudice can be inferred from the mere fact of an overall delay, even in the absence of actual prejudice.

[43] The trial judge was well aware of his obligation to carry out the balancing exercise including his obligation to consider not only the rights of the individual accused but society’s interest in having persons charged with crime tried on the merits.

[44] The trial judge’s reasons for his ruling were delivered orally at the conclusion of a two day hearing. In my view, those reasons make it clear that his analysis proceeded on a complete understanding of the correct legal principles which he applied to the facts as he found them. He was obviously aware that prejudice to the accused is an important factor for consideration as is society’s interest in a trial on the merits. As a result of his consideration of all of the evidence and the application of the approach mandated by Sopinka J. in Morin, he concluded that the delay in this case was unreasonable and therefore trumped society’s interest in a trial on the merits.

CONCLUSION

[45] One cannot, in the words of Arbour J.A. in Bennett, “lose sight of the importance of the total period of delay.” The trial judge did not lose sight of it in this case. He concluded that a total delay of 27 ½ months from arrest to the commencement of the trial was too long. I agree with him. As already indicated, I would dismiss the appeal.

RELEASED:

“JUN 27 2008” “Robert P. Armstrong J.A.”

“RAB” “I agree E.E. Gillese J.A.”

“I agree R.A. Blair J.A.”