CITATION: R. v. Austin, 2009 ONCA 329
DATE: 20090423
DOCKET: C48651
COURT OF APPEAL FOR ONTARIO
O’Connor A.C.J.O., Rosenberg and Goudge JJ.A.
BETWEEN
Her Majesty the Queen
Appellant
and
Darren Austin and Hendrikus Geene
Respondents
Deborah Calderwood and Melanie Adams, for the appellant
Tim McDonald, for the respondent Darren Austin
Sara Wisking, for the respondent Hendrikus Geene
Heard: February 25, 2009
On appeal from the imposition of the stay entered by R.J. Haines of the Superior Court of Justice dated March 4, 2008.
O’Connor A.C.J.O.:
[1] On February 15, 2006, the respondents were arrested and charged with a very serious sexual assault. The complainant alleged that the respondents forced vaginal, anal and oral sex on her while she was incapacitated from the consumption of alcohol.
[2] On March 4, 2008, the trial judge stayed the charges against both respondents on the basis that their rights to a trial within a reasonable time under s. 11(b) of the Charter of Rights and Freedoms had been breached. There had been a delay of approximately 25 months from arrest to the scheduled trial date. The Crown appeals the imposition of the stay.
[3] I would allow the appeal. With respect, I conclude that the trial judge erred in two regards. First, he failed to take into account that at least 7 ½ months of the delay related to the intake of the case in the Ontario Court of Justice and in the Superior Court. That delay was properly characterized as part of the inherent time requirements of the case and should have been treated as neutral in determining whether the delay was unreasonable. Second, the trial judge appears to have isolated the delay in the Superior Court and focused on its reasonableness rather than examining the reasonableness of the total delay from arrest to the scheduled trial date.
[4] When one removes the intake time from the delay calculation, the remaining time, 17 ½ months, comes within the upper end of the guidelines suggested by the Supreme Court of Canada in R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771 for cases such as this where there is a preliminary hearing and a trial in the Superior Court.
[5] On the interpretation of the facts most favourable to the respondents, approximately nine of the 17 ½ month delay was caused by late Crown disclosure. That delay should not have occurred. Nonetheless, given the strong societal interests in having these serious charges tried, the absence of any trial fairness prejudice to the respondents and the fact that the delay, including that caused by late disclosure, does not exceed the Morin guidelines, I am of the view that the stay should be set aside and a new trial ordered.
FACTS
The Allegations
[6] On February 11, 2006, the complainant, aged 22, went to a party with the two respondents. In the early morning hours of February 12, she was in the basement of the respondent Geene’s house. She was intoxicated. She alleges that the respondents subjected her to vaginal, anal and oral sex without her consent. She only remembers parts of the sexual assault.
[7] After returning home and showering, the complainant went to a local hospital to have a tampon which had been lodged inside of her during the assault removed. She had been unable to remove it herself. At the time, she did not disclose to her mother, who accompanied her to the hospital, or to the medical professionals attending her, that she had been sexually assaulted.
[8] Later that day and on the following morning, the complainant told her family about what had happened. On Monday, February 13, she went to the St. Joseph’s Health Care Centre in London (“St. Joseph’s Hospital”). The staff at St. Joseph’s Hospital prepared a sexual assault evidence kit and took swabs for forensic testing.
[9] The complainant returned to St. Joseph’s Hospital on Wednesday, February 15, at which time further swabs were taken for the purpose of detecting sexually transmitted diseases. She went back to the hospital on four more occasions to receive medications and for further testing relating to sexually transmitted diseases.
The Court Appearances
[10] The respondents were arrested at their school on February 15, 2006. They were released on promises to appear and their first court appearance was on May 1, 2006. On that day, the case was adjourned to June 5 to allow the respondents, who had retained counsel, to review the Crown disclosure.
[11] On June 5, the case was adjourned at the request of the respondents to July 17 in order to set a date for the preliminary hearing. On July 17, the preliminary hearing date was set for November 20, 2006. The preliminary hearing proceeded and was completed on November 20 as scheduled. At the preliminary hearing, by agreement, the Crown called only one witness, the complainant. The respondents were committed for trial.
[12] A pre-trial in the Superior Court was scheduled for January 4, 2007 and an assignment court date was fixed for February 2, 2007. The pre-trial was adjourned to the assignment court date. At the assignment court on February 2, counsel for the respondents sought an adjournment to March 19, 2007 for two reasons: the transcript of the preliminary hearing had not been completed and the report from the Centre of Forensic Sciences (“CFS”) relating to the sexual assault evidence kit was not available. I will come back to the history of the disclosure problems in some detail below.
[13] By March 19, the preliminary hearing transcript had been completed but the CFS report had not been produced. Counsel for the respondents expressed concern to the court saying that, “our clients want to get this done”.
[14] The case was set for trial on the first available date which was during the week of June 11, 2007. An interim pre-trial date was set for May 24, 2007. The Crown indicated that it expected to have the CFS report by that date.
[15] The CFS report was still not available on May 24, the date scheduled for the pre-trial. On that date, the Crown gave an oral report to defence counsel saying that the forensic testing did not show the presence of semen. However, as a result of the Crown’s failure to provide the written CFS report, the pre-trial was cancelled and the June trial date was vacated. The trial was then set for September 20, 2007.
[16] The Crown finally provided the CFS report to the respondents on August 8, 2007. After receiving the report, the respondents raised additional disclosure issues with respect to the records at St. Joseph’s Hospital. The result was that the trial did not proceed on September 20. A number of exchanges took place between the Crown and the respondents about disclosure. The trial was eventually re-scheduled for March 17, 2008.
[17] In January 2008, the respondents brought applications to have the charges stayed pursuant to s. 11(b) of the Charter. The trial judge heard the applications on February 1, 2008 and made the order staying the charges on March 8, 2008.
The Disclosure Problem
[18] Since the trial judge found that the delay beyond the Morin guidelines was wholly attributable to the Crown’s late disclosure of the CFS report and certain hospital records, it is necessary to review the history of the problems with the disclosure of that report in some detail.
[19] Counsel for one of the respondents wrote the Crown requesting production of the St. Joseph’s Hospital records and the results of any sexual assault kit tests on May 17, 2006.
[20] At the preliminary hearing on November 20, 2006, the respondents did not complain that there had been inadequate or late disclosure. The failure to disclose the results from the CFS did not delay the preliminary hearing. The complainant testified that she had been examined at St. Joseph’s Hospital on February 13, 2006 and that swabs had been taken on that date. She went on to say, however, that given how “torn up” she was “down there”, she went back to St. Joseph’s Hospital on February 15 to have further swabs taken for the sexual assault evidence kit.
[21] In fact, the complainant misunderstood the reason why the hospital personnel took further swabs on February 15. Those swabs were not taken for the sexual assault evidence kit, but rather were for the purpose of detecting sexually transmitted diseases. This misunderstanding led the respondents’ counsel to expect that the sexual assault evidence kit, the test results of which were still outstanding, would relate to the examinations of the complainant on both February 13 and 15.
[22] Inexplicably, the sexual assault evidence kit and samples were not delivered to the CFS until March 25, 2007, over 13 months after the complainant was examined on February 13, 2006. At trial, Crown counsel was not able to explain the reason for the delay, although it appears to have been a failure on the part of the Ontario Provincial Police (the “OPP”). The Crown counsel at trial conceded that the delay resulted from negligence. There is no suggestion, however, that the delay was caused by bad faith or any improper motive on the part of either the OPP or the Crown.
[23] The pre-trial set for May 24, 2007 was adjourned because the CFS report had still not been disclosed to the respondents. On May 24, the Crown reported orally that the CFS had not found semen on the swabs taken on February 13, 2006.
[24] Six days later, on May 30, 2007, the CFS report was finally delivered to the OPP. However, further delay occurred as the OPP did not deliver the CFS report to the Crown until August 8, 2007. The report had apparently been left on a retired officer’s desk. On the same day the Crown received the report, the Crown provided copies to counsel for the respondents. The results showed that no semen had been found on the swabs taken on February 13, 2006.
[25] The delivery of the report to the respondents triggered requests by the respondents for further disclosure, including the records of St. Joseph’s Hospital relating to the complainant’s February 15 visit and the results of tests taken at that time. Because of the complainant’s evidence at the preliminary hearing, the respondents’ counsel took the position that they had expected that the information now being requested would be included in the CFS report. Discussions and disagreements about the relevance of the additional disclosure being sought ensued.
[26] It is reasonable to conclude that if the Crown had disclosed the sexual assault evidence kit and the results of the related tests in a timely manner, disagreements about the relevance of the February 15 visit and production of records relating to that visit or other records requested by the respondents would have been resolved through agreement or by court order in ample time to have allowed the trial to proceed during the week of June 11, 2007, when it was first scheduled for trial in the Superior Court. On that view of the facts, I do not think it is necessary to assess the various communications among the Crown, the respondents and the courts following the week of June 11, 2007. All of what transpired thereafter would not have been necessary had there been timely disclosure. Thus, the nine months between June 11, 2007 and the scheduled trial date of March 17, 2008 should be viewed as having been caused by the Crown’s failure to make timely disclosure.
THE TRIAL JUDGE’S REASONS
[27] The trial judge began his reasons by pointing to the four factors set out in Morin – the length of the delay, waiver, the explanation for the delay and prejudice.
[28] In addressing the length of the delay, the trial judge pointed out that the nine-month period from arrest to committal was not “seriously challenged”. He noted, however, that “[i]t is the 16 month delay following committal that is prima facie excessive and requires an explanation.”
[29] The trial judge found that the respondents had not waived any portion of the delay period.
[30] The trial judge next considered the explanations for the delay. He allowed two months for the inherent time requirements of the case. This was the time required for the analysis and production of the CFS report. The trial judge concluded that this was not a particularly complex case. However, he did not comment on or appear to factor into his calculation any time for the intake of the case in the Ontario Court of Justice or the Superior Court such as the time required to retain counsel, hold pre-trials and do what was necessary in order for the parties to be ready for the preliminary hearing or the trial.
[31] The trial judge found that the respondents were not responsible for any of the delay. He remarked that an initial pre-trial date had been set for May 24, 2007 and the trial date for the week of June 11, 2007. Those dates had been adjourned due to the failure of the Crown and/or police to provide the CFS report. Had the trial proceeded on the original date, he noted, it would have been completed well within the Morin guidelines.
[32] The trial judge concluded that the actions of the Crown and/or police were the sole cause of the delay and that “any delay” beyond the Morin guidelines “is attributable to the Crown’s failure to make disclosure in a timely manner.”
[33] The trial judge pointed out that neither the Crown nor defence counsel suggested that the unavailability of institutional resources contributed to the delay. Read in context, the trial judge was not saying that there was no institutional delay whatsoever, only that none of the institutional delay was the cause of what he found to be unreasonable delay. However, the trial judge did not quantify the institutional delay.
[34] As to prejudice, the trial judge agreed with the Crown’s submission that there was no trial fairness prejudice. He did find, however, that there was actual prejudice to the respondents’ rights to security of the person. Adopting the language of Lamer J. in R. v. Mills, 1986 17 (SCC), [1986] 1 S.C.R. 863, at pp. 919-20, he stated that “[s]ecurity of the person recognizes the stigmatization, loss of privacy, and stress and anxiety created by criminal proceedings.”
[35] The trial judge reviewed the impact of the delay on the respondents. They were arrested at school and the stigma of the charges was augmented by the fact that they lived in a small town. He noted that the respondent Geene will be prevented from pursuing a career in his community and the respondent Austin’s efforts to obtain employment have been impeded as a result of the charges. Further, the respondents’ social interactions with one another and others have been disrupted.
[36] The trial judge concluded:
Given the size of this community, the notoriety of the events that give rise to the charge, and the location and nature of the arrest, the usual “vexations and vicissitudes” that necessarily accompany a criminal prosecution of this kind have been greatly exacerbated by the delay.
[37] When the trial judge came to balancing the interests protected by s. 11(b), he noted the seriousness of the charges and that the extraordinary delay was attributable to the Crown. He went on to say:
The task of the Court is not to simply balance the societal interest in the trial against the prejudice to the defendants. If that were the exercise, I would conclude the application should be dismissed.
[38] The trial judge then observed that “there are other issues at play that relate to the conduct of this prosecution”, which he earlier referred to as “the casual approach of the Crown to the applicant’s entitlement to disclosure”. He noted that the case was relevantly straightforward and the delay “far exceeds the guidelines suggested by the Supreme Court of Canada” (emphasis added). Balancing the various factors mentioned above, the trial judge found the delay was unreasonable and stayed the charges.
ISSUES
[39] I accept that the total period of delay from arrest to the scheduled trial date – 25 months – is sufficiently long to warrant examination. I also accept the trial judge’s findings that the respondents neither waived nor caused any of the delay. Further, I see no reason to disturb the trial judge’s findings with respect to prejudice. There was no trial fairness prejudice, but the respondents did suffer actual prejudice in terms of the effect of the delay on their rights to security of the person.
[40] The issues that need to be decided are as follows:
did the trial judge err in his assessment of the inherent time requirements of the case;
did the trial judge err in focusing solely on the delay in the Superior Court;
what is the effect of the late Crown disclosure on the reasonableness of the delay; and
is a stay of proceedings warranted?
ANALYSIS
Governing Principles
[41] Before addressing each of these issues in turn, it is useful to begin by reviewing the governing principles on an appeal from a s. 11(b) application.
[42] The purposes of s. 11(b) were set out by Laskin J.A. in R. v. Qureshi (2004), 2004 40657 (ON CA), 190 C.C.C. (3d) 453 (Ont. C.A.), at paras. 8-9:
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.]
[43] In determining whether s. 11(b) has been infringed, the court must balance the individual and societal factors with the length, causes and consequences of the delay. In Morin, the Supreme Court of Canada set out the framework for the balancing exercise at pp. 787-88. Four factors must be considered:
the length of the delay;
waiver of time periods;
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
- prejudice to the accused.
[44] On an appeal from a s. 11(b) decision, this court will show deference to the trial judge’s findings of fact such as the date on which the Crown produced a certain document. However, a failure to correctly apply the Morin factors, the attribution of various periods of delay to the categories set out in Morin and the ultimate decision whether the delay is unreasonable are reviewable on a standard of correctness: Qureshi at para. 27; R. v. M.(N.N.) (2006), 2006 14957 (ON CA), 209 C.C.C. (3d) 436 (Ont. C.A.), at paras. 5-6; R. v. Cranston (2008), 2008 ONCA 751, 244 O.A.C. 328 (C.A.), at para. 35; R. v. Nadarajah (2009), 2009 ONCA 118, 245 O.A.C. 243 (C.A.), at para. 31.
1. Inherent Time Requirements
[45] As discussed above, the trial judge did not appear to factor into his analysis any time for the inherent time requirements of the case beyond the 2 month period for the analysis and production of the CFS report. For the following reasons, I conclude that the trial judge erred in failing to deduct a total of 7 ½ months as an intake period. That period is comprised of the intake time in the two courts – 5 months in the Ontario Court of Justice and 2 ½ months in the Superior Court – and should have been treated as neutral in evaluating the reasonableness of the delay.
[46] In Morin, the Supreme Court of Canada set out the analytical framework for a assessing the reasons for delay. In so doing, the court set guidelines for what may constitute reasonable systemic or institutional delay. Sopinka J., for the majority, suggested a period of between 8 to 10 months as a guide for provincial courts and a range of 6 to 8 months after committal for trial: Morin at p. 789. Taken together, the suggested range for a case in which there is a preliminary hearing is between 14 and 18 months.
[47] It is important to note that the guideline periods do not start to run until after inherent time requirements of a case have elapsed. In Morin, Sopinka J. described this as the point in time “when the parties are ready for trial but the system cannot accommodate them”: Morin at p. 795. The inherent time period includes what may be called the “intake requirements” for a case. At p. 791, Sopinka J. pointed out that
[s]ome delay is inevitable. Courts are not in session day and night. Time will be taken up in processing the charge, retention of counsel, applications for bail and other pre-trial procedures. Time is required for counsel to prepare.
[48] When there is a preliminary hearing, there will be further delays in a “two-stage” trial process which will involve “additional inherent delays such as further pre-trial meetings and added court dates” for the second stage in the higher court: Morin at p. 793.
[49] In this case, the respondents were arrested on February 15, 2006. Their first appearance in court was on May 1, 2006. On that date, the case was adjourned until June 5, 2006 in order for defence counsel to review the Crown disclosure. On June 5, 2006, again at the request of defence counsel, the case was further adjourned to July 17 to set a date for the preliminary hearing. On July 17, 2006, by agreement, the preliminary hearing was set for November 20, 2006.
[50] In my view, the period between February 15 and July 17, 2006 should properly be characterized as an intake period in the Ontario Court of Justice. By July 17, 2006, counsel were ready for the preliminary hearing. The Crown’s failure to disclose the CFS report, which became a problem a year later, was not a problem at the time. Counsel for the respondents were agreeable to proceed with the preliminary hearing without the results from the CFS. The case proceeded in what could be viewed as a normal course for a serious charge such as the charges against the respondents.
[51] In coming to this conclusion, I note that this court has viewed similar periods of time leading up to the setting of a date for a preliminary hearing or trial as part of the intake or inherent time requirements of the case: see e.g. Qureshi; R. v. Galassi (September 7, 2005), C41946 (Ont. C.A.).
[52] In addition, I am satisfied that there should be deducted a further 2 ½ months for intake time in the Superior Court. The respondents were committed for trial following the preliminary inquiry on November 20, 2006. Almost immediately, an assignment court date was set for February 2, 2007 in the Superior Court. Initially, a pre-trial was scheduled for January 4, 2007, but for reasons that are not entirely clear, that date was adjourned to the assignment court on February 2, 2007.
[53] On February 2, 2007, the defence were not prepared to set a trial date for two reasons: the transcript of the preliminary hearing was not prepared and the Crown had not disclosed the CFS report. If on that date the transcript of the preliminary hearing had been prepared and the Crown disclosure been completed, one can assume the parties would have been ready for trial and prepared to set a trial date. Thus, it seems to me that the 2 ½ month period between the preliminary hearing and the assignment court was a reasonable time in which to expect the Superior Court to take in a new case and a period which the parties could use to prepare for trial.
[54] Accordingly, I would deduct a total of 7 ½ months for the inherent time requirements of this case.
2. Isolating the Delay in the Superior Court
[55] Having failed to deduct the intake periods in the courts, the trial judge may have committed a second and related error. He appears to have isolated and focused solely on the 16 month delay in the Superior Court. The trial judge held that the “reasonableness of the length of time between arrest and committal is not seriously challenged” and that it is “the 16 month delay following committal that is prima facie excessive and requires an explanation.” Later, he held that the period of delay “far exceeds” the Supreme Court of Canada guidelines.
[56] While Sopinka J. set out separate guidelines for the delays in the Provincial Court and the Superior Court in Morin, the case law makes it clear that when considering the guidelines, the court should look at the reasonableness of the entire time period in issue. It is an error to isolate the delay in one court and assess the reasonableness of that delay in isolation.
[57] In R. v. Allen (1996), 1996 4011 (ON CA), 110 C.C.C. (3d) 331 (Ont. C.A.), aff’d 1997 331 (SCC), [1997] 3 S.C.R. 700, Doherty J.A. stated at p. 345:
I can see nothing in the language of s. 11(b) which suggests any right to have one’s trial proceed according to a constitutionally mandated timetable. Section 11(b) creates one right – the right to be tried within a reasonable time. As long as the entire time period in issue cannot be said to be unreasonable when tested against the principles pronounced in R. v. Morin…, there is no violation of s. 11(b). [Emphasis added, citations omitted.]
[58] In Galassi, Rosenberg J.A. held that the trial judge erred in isolating the delay in the Ontario Court of Justice from the entire time period. At para. 20, he held:
While the delay in the Ontario Court of Justice was lengthy, the authorities moved with admirable dispatch to ensure that the respondent obtained an early trial in the Superior Court of Justice. In considering whether the respondent’s s. 11(b) rights were infringed, the trial judge was required to look at the whole period, not just whether the case met the Morin guidelines in the Ontario Court of Justice. [Emphasis added.]
See also M.(N.N.) at para. 69.
[59] Thus, the issue for the trial judge was not whether the time from committal to trial was unreasonable but whether the entire 25 month delay was unreasonable, having regard to the factors set out in Morin.
3. The Disclosure Problem
[60] After deducting the 7 ½ month intake period from the total delay of 25 months, there remains a delay of 17 ½ months. The trial judge attributed “any delay” beyond the Morin guidelines to the Crown’s failure to make disclosure in a timely manner. In my view, approximately nine of the 17 ½ month delay was caused by the Crown’s failure to make disclosure in a timely fashion. The balance was systemic or institutional delay. Nonetheless, in my view, the Morin are useful in determining whether the total delay in this case was unreasonable.
[61] On a view of the facts most favourable to the respondents, only nine of the 17 ½ month delay can be attributed to the Crown’s late disclosure. The preliminary hearing was scheduled and completed without delay caused by the lack of disclosure. The 4 months between July 17, 2006 – when the date for the preliminary was set – and November 20, 2006 – when the preliminary hearing was heard – is properly characterized as institutional or systemic delay.
[62] Further, in the Superior Court, the case was put on the assignment court list for February 2, 2007. As discussed above, it was adjourned to March 17 to set a date for trial because of two things: the transcript of the preliminary was not complete and the results of the CFS tests had not been produced. Given that the transcript had not been completed, it seems likely that even if disclosure had been made, the case would have been put over to the March date to set a date for trial. On March 17, the trial date was set for the week of June 11, 2007. Thus, even if the Crown had made timely disclosure, it is fair to conclude that the earliest trial date would have been in the week of June 11, 2007. In my view, the time between the assignment court on February 2, 2007 and the first trial date during the week of June 11, 2007 – 4 ½ months – should be considered institutional or systemic delay.
[63] The remaining 9 months – from the first scheduled trial date during the week of June 11, 2007 to the trial date of March 17, 2008 – should be attributed to the Crown’s late disclosure of the CFS report. There is no explanation for the Crown’s delay in disclosure other than what the Crown Attorney said in his submissions – it was due to negligence. By that, I take the Crown to have meant it was inadvertent. While the delay cannot be explained or justified, there is no suggestion that it was intentional or that the police or the Crown had any ulterior motive in not ensuring that there would be timely disclosure.
[64] The question arises whether it makes a difference when applying the Morin guidelines that a portion of the delay was caused by the Crown’s late disclosure rather than by institutional or systemic factors. The trial judge’s conclusion that the delay was unreasonable appears to have been driven in large part by the fact that the delay was caused by the Crown’s actions. He noted that if the task were to “simply balance the societal interest in the trial against prejudice to the defendants”, then the “application should be dismissed”. However, there were other “issues at play” that related to the “conduct of the prosecution” which he earlier described as the Crown’s “casual approach” to disclosure.
[65] It is important to note that the purpose of s. 11(b) is not to assign blame to either party but to determine whether the period of delay is unreasonable. In discussing delay caused by the conduct of the Crown, Sopinka J. in Morin stated at p. 794:
As with the conduct of the accused this factor does not serve to assign blame. The 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…. [S]uch delays cannot be relied upon the Crown to explain away delay that is otherwise unreasonable. [Emphasis added.]
[66] In R. v. Durette (1992), 1992 2779 (ON CA), 9 O.R. (3d) 557 (C.A.), Doherty J.A., dissenting, but not on this point, reviewed a number of authorities and expressed the same idea at p. 594:
Section 11(b) requires a measurement of the reasonableness of the time required to complete the prosecution of an accused. It is not concerned with the propriety of the conduct of the Crown or the accused. In R. v. Conway, 1989 66 (SCC), [1989] 1 S.C.R. 1659…, at pp. 1673-74…, L’Heureux-Dubé J. for the majority said:
The Crown is free to use its prosecutorial discretion as it seems fit, provided that it does not conduct the prosecution in an abusive manner. We are not here concerned with fault but with the reasonableness of the over-all delays in bringing an accused to justice.
These words echo the comments of Lamer J. in R. v. Mills, 1986 17 (SCC), [1986] 1 S.C.R. 863..., at p. 933-34… where he said, speaking for three members of a seven-person court (the majority not addressing the point):
The purpose of s. 11(b), however, is not to penalize or sanction misconduct by the authorities. The section is concerned not with abuse of process but with abusive process…. [W]hether the delay is the result of malice, negligence or inadvertence is of little import….
The function of the doctrine of abuse of process is, therefore, in my view entirely distinct from that of s. 11(b). While reduction in official misconduct may be a consequence of s. 11(b), this is not its purpose. In the eyes of the individual accused, it matters little whether the delay is imputable to the authorities or not; what truly matters is the extent to which the delay will impair his or her interests. Section 11(b) does not to any extent represent an entrenchment or an extension of the common law doctrine of abuse of process. [Emphasis in original, parallel citations omitted.]
[67] Thus, when viewed against the background of the purposes of s. 11(b), there is no reason why a court, when considering delay caused by the Crown’s late disclosure, should not have regard to the Morin guidelines in assessing the reasonableness of the delay. The seriousness with which one views Crown conduct causing delay or indeed the seriousness of the systemic or institutional reasons causing delay may vary from case to case. The focus of the exercise under s. 11(b), however, is on the impact of the delay on the accused and society, not on weighing the seriousness of the causes of the delay or attaching blame.
[68] Accordingly, I am satisfied that after deducting the 7 ½ month intake period in the two courts, the remaining period of delay was 17 ½ months, part of which was purely systematic or institutional delay and part of which was caused by the Crown’s late disclosure.
5. Is a Stay Warranted?
[69] The remaining question is whether this 17 ½ month period was unreasonable. While a significant portion of the delay could have been avoided had the Crown made prompt disclosure, the overall delay of 17 ½ months nonetheless falls within the Morin guidelines for a case such as this where there is a preliminary inquiry.
[70] Moreover, the prejudice to the respondents in this case does not weigh in favour of shortening what would otherwise be an acceptable period of delay. The trial judge found that there was no prejudice to the respondents’ fair trial or liberty interests. The trial judge found actual prejudice with respect to their security of the person interests based on the stigmatization and anxiety caused by the charges. However, he was of the view that the prejudice to the respondents was not sufficiently great to override the societal interest in having a trial. He said:
The task of the court is not to simply balance the societal interests of a trial against the prejudice to the defendants. If that were the exercise, I would conclude the application should be dismissed.
[71] As stated above, the trial judge went on to rely on other factors in deciding the delay was unreasonable. He referred to the conduct of the prosecution and the fact that, as he saw it, the period of delay “far exceeds” the guidelines. As discussed above, the fact that the delay was caused in part by the Crown’s late disclosure serves only to explain the cause of the delay. Further, after deducting the 7 ½ month intake period in this case, the 17 ½ month delay comes within the upper end of the guidelines set out in Morin for a case such as this where there is a preliminary inquiry.
[72] In my view, the societal interest in this case warrants a trial on the merits. The charges are extremely serious. As Sopinka J. said in Morin at p. 787, “[a]s the seriousness of the offence increases so does the societal demand that the accused be brought to trial.”
[73] Given that the overall delay comes within the Morin guidelines and the respondents’ fair trial rights will not be affected, I am of the view that the societal interest in having a trial outweighs the factors that would favour a stay.
[74] Accordingly, I would allow the appeal, set aside the stay of the proceedings and order that the trial proceed.
RELEASED: “DOC” “APR 23 2009”
“Dennis O’Connor A.C.J.O.”
“I agree M. Rosenberg J.A.”
“I agree S.T. Goudge J.A.”