W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2)
of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
CITATION: R. v. A.J.W., 2009 ONCA 661
DATE: 20090917
DOCKET: C49153
COURT OF APPEAL FOR ONTARIO
Rosenberg, Armstrong and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Appellant
and
A.J.W.
Respondent
Peter Scrutton, for the appellant
Catriona Verner, for the respondent
Heard: May 14, 2009
On appeal from the decision of Justice Alfred Stong of the Superior Court of Justice, staying the proceedings against the respondent, dated June 25, 2008.
Rosenberg J.A.
[1] This Crown appeal from a stay of proceedings for violation of the right to trial within a reasonable time, principally concerns two issues. First, the characterization of delay following an adjournment because of lack of judicial resources. Second, the characterization of delay following a Crown request for an adjournment because of the illness of a prosecution witness. Stong J. considered that the entire delay resulting from the two adjournments was either institutional or Crown delay. In the result, the total delay exceeded the guidelines suggested by the Supreme Court in R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771. The trial judge found that the respondent had suffered substantial prejudice and he therefore stayed the proceedings.
[2] For the following reasons, I would allow the appeal, lift the stay of proceedings and order that the trial proceed.
THE FACTS
The Allegations
[3] The respondent was charged with sexual assault, sexual exploitation and sexual interference. The Crown alleges that the respondent sexually abused the daughter of his common law spouse over a 12 year period beginning when the child was six years of age and ending when she was about 18 years of age. The abuse allegedly included digital penetration and occurred on a weekly basis.
The Proceedings in the Ontario Court of Justice
[4] The respondent was arrested on January 12, 2006 and released on bail on January 20. The terms of release included conditions that he have no communication with his common law spouse or the complainant, and not be alone in the company of any child under the age of 16 except when in the company of an adult. The order contained an exception to permit the respondent to continue visits with his teenaged daughter in accordance with a Family Court Order. However, the respondent and his daughter mutually agreed to suspend those visits while the criminal charges were outstanding, in order to reduce the stress the situation was causing her.
[5] The respondent elected trial by judge and jury. In an effort to expedite the proceedings, the respondent agreed to forego a preliminary inquiry in favour of an examination for discovery of the complainant and her mother. This examination took place on July 5, 2006 and the respondent was committed for trial.
[6] Thus, proceedings in the Ontario Court of Justice were completed in less than six months. Of this time, approximately three months is attributable to institutional or Crown delay. The balance is either defence delay or neutral, being attributed to intake time or the inherent time requirements of the case.
Institutional/Crown delay in O.C.J.: 3 months
The Proceedings in the Superior Court of Justice
Time from committal to trial to first trial date: July 5, 2006 to February 5, 2007
[7] On September 6, 2006, the parties set a trial date for February 5, 2007. While this was essentially a two-witness case, being the complainant and her mother, the parties estimated that the trial would last 7 to 8 days. The period from the committal for trial on July 5, 2006 to the first trial date of February 5, 2007 consists of two months attributed to intake or defence delay and five months of institutional delay.
Institutional delay to first trial date: 5 months
Adjournment of first trial date: February 5, 2007 to March 19, 2007
[8] Shortly after the parties set the first trial date, Crown counsel realized that she had a potential conflict on the selected date of February 5, 2007. The case was therefore returned to court on September 15, 2006 and a new trial date was set of March 19, 2007. The Crown accepts that it bears responsibility for this period of delay.
Crown delay - Adjournment of first trial date: 1.5 months
Adjournment of second trial date: March 19, 2007 to October 29, 2007
[9] On March 19, 2007, counsel selected a jury. However, the presiding judge then declared a mistrial because no judge was available to try the case. Three jury trials had been set for the same time and there was only one judge available. Crown counsel chose to proceed with another sexual assault case that had been adjourned once before. The explanation for that choice is contained in an affidavit from an Assistant Crown Attorney:
[T]he matter of [R. v. H.] was determined to be the priority matter. The charges were sexual in nature. The matter had been up for trial once before but adjourned at the request of defence because of a personal tragedy. Of the matters listed, it was estimated to be the shortest.
[10] The parties attended on March 28, 2007 to select a new trial date. They agreed on October 29, 2007 as the new trial date. Crown counsel put on the record that the court and the Crown could have held the trial in June and July but that defence counsel was not available for those dates. The first trial date offered was June 4, 2007. No mention was made by either Crown counsel (not Mr. Scrutton), defence counsel (not Ms. Verner), or the court as to whether trial dates were available in August, September or early October.
[11] The trial judge attributed all of the ensuing delay from March 19 to October 29, a period of about 7.5 months, to institutional delay. This is the first matter of controversy between the parties. The Crown submits that 2.5 months are properly considered to be institutional delay, being the time from the March 19, 2007 trial date until June 4, 2007, the first trial date offered to the parties. The balance of the time, 5 months, should be considered neutral.
[12] The respondent submits that the trial judge was right to attribute the entire delay to institutional delay. Alternatively, the three-month period from July 30 to October 29, should also be considered institutional delay.
Summary of the controversy
Trial judge’s attribution: 7.5 months institutional delay
Crown position: 2.5 institutional delay
Defence position: 7.5 months institutional delay or
5.5 months institutional delay
Adjournment of third trial date: October 29, 2007 to June 23, 2008
[13] On October 24, 2007, a few days before the scheduled trial date, Crown counsel applied for an adjournment of the case. The request for the adjournment was supported by a brief affidavit from an employee of the Victim Witness Assistance Programme who had been assisting the complainant and her mother in preparation for trial. She stated that the complainant’s mother had been diagnosed with cancer on October 18, 2007 and was scheduled for surgery on October 26, 2007. The complainant’s mother told the VWAP employee that the complainant “will be critical to her after-care both physically and emotionally”.
[14] In court, Crown counsel told the presiding judge, who happened to be Stong J., that the complainant’s mother was a necessary witness to place things in context. Crown counsel stated that “without her, I’m not in a position to continue”. Defence counsel stated that he was not consenting to the adjournment. After the adjournment was granted, defence counsel said this:
I mean, given the circumstances, the adjournment was practically a foregone conclusion, so I don’t have much to say about that, but I’m certainly, certainly not in the position to consent. I want – I’m putting it on the record that [the respondent] intends to exercise his 11(b) rights in respect of this. This is actually the second trial date. It wasn’t reached on the prior occasion because of a shortage of resources. And here we are again, we’re going to be setting a third trial date. So, I just want all that noted on the record.
[15] Crown counsel then proceeded to put on the record a series of trial dates that had been offered by the trial co-ordinator. They were as follows:
January 14, 2008: defence counsel not available
January 28, 2008: neither counsel available
February 4, 2008: defence counsel not available
February 19, 2008: defence counsel not available
March 10, 2008: defence counsel doubtful avail-ability because of jury trial to begin March 25
April 21, 2008: defence counsel not available
May 20, 2008: defence counsel not available
June 2, 2008: defence counsel not available
[16] The parties finally settled on June 23, 2008 for trial. The trial judge attributed the resulting delay of almost 8 months to institutional delay. Counsel for the appellant submits that the period from October 29, 2007 to January 14, 2008 (the adjournment to the first available trial date) should be considered delay inherent in the trial process and the period from January 14, 2008 to June 23, 2008 (when the defence was not available) should be considered neutral. Counsel for the respondent agrees with the trial judge’s characterization. Alternatively, she submits that some lesser period is properly considered institutional delay, in part, because of Crown counsel’s tactical decision to seek an adjournment rather than apply under s. 715 of the Criminal Code to have the evidence of the complainant’s mother from the examination for discovery read in at the trial.
Summary of the controversy
Trial judge’s attribution: 8 months institutional delay
Crown position: 0 institutional delay
Defence position: 8 months or some other period institutional delay
[17] In the result, the total delay from arrest on January 12, 2006 to the third trial date of June 23, 2008, was just over 30 months or 2.5 years.
The proceedings on the motion to stay proceedings
[18] The respondent testified on the motion to stay proceedings. That testimony concerned the inability of the respondent to see his biological daughter while the trial was pending, depression brought about by the charges, and events at his employment. The respondent testified to circumstances that are characteristic of the consequences of delay. As he said, his life had been on hold while he waited for the trial to begin.
[19] One further matter of note is that the complainant’s mother would not have been able to testify at the trial even if it had proceeded on June 23, 2008 because of a development with her health. Crown counsel indicated that she would be bringing an application under s. 715 to have the witness’s evidence at the examination for discovery read in. Defence counsel submitted that Crown counsel should have applied on the prior occasion to have the evidence read in, rather than seek an adjournment. He pointed out that back in October 2007, the Crown was on notice that the respondent was asserting his s. 11(b) rights.
[20] The trial judge made some comments that indicated it was far from certain that he would allow the Crown to proceed by way of s. 715. He suggested that perhaps the s. 715 issue should be resolved first. Defence counsel indicated that he had not turned his mind to that issue. The argument was then adjourned to the following day. At that time, defence counsel indicated that there would be “some prejudice”, but nothing dramatic to the defence if the complainant’s mother’s evidence was read in. It is unclear from the interchange between counsel and the trial judge whether defence counsel would oppose the s. 715 application if the case proceeded to trial.
THE TRIAL JUDGE’S REASONS
[21] I do not need to summarize all of the trial judge’s reasons since I have already set out the main areas of controversy. I will, however, refer to some important findings by the trial judge. He held that the circumstances of the offences were uncomplicated. He noted that the defence had always been ready for trial on the scheduled trial dates and had taken steps to expedite the matter, such as agreeing to an examination for discovery rather than a full preliminary inquiry. He held that the reason the trial did not proceed on March 19, 2007 was not simply because of lack of institutional resources but the Crown’s decision to give priority to another case. He considered that the Crown’s position that institutional delay stopped running after the first available trial date of June 4 was unreasonable. As he said:
Defence counsel cannot be required to hold the balance of their schedule in abeyance and abandon further commitments so as to be in a position to agree to a seven to eight day period of time offered by the court and agreeable to the prosecution.
Accordingly, the whole period of 7.5 months was attributed to institutional delay.
[22] The trial judge also faulted the Crown for not applying to read in the complainant’s mother’s evidence and proceeding with the trial on October 29, 2007. He characterized this as a tactical decision and held that this period “falls to the responsibility of the Crown by way of institutional delay”. The trial judge therefore held that the institutional delay in the Superior Court of Justice was 21.5 months, which was more than double the Morin guidelines.
[23] The trial judge accepted the respondent’s testimony and found that there was inherent and actual prejudice to his interests by reason of the delay. The trial judge focused on the fact that the respondent was unable to see his biological daughter and that he lost some opportunities for advancement and greater remuneration at his employment. The stigma attaching to the fact of being charged was exacerbated because the Children’s Aid Society told at least one of the respondent’s neighbours about the charges and warned the neighbour to keep his children away from the respondent. The respondent had to receive counselling and anti-depression drugs to deal with the stress. He was also prejudiced financially because of increased legal fees to the point where he had to re-mortgage his home. As well, because of his financial difficulties, the respondent had been unable to provide financial support to his family in Iraq. This too was a significant source of stress for him.
ANALYSIS
Introduction
[24] The proper attribution of the delay following the two adjournments in March and October 2007 are the principal issues in this case. However, the appellant has raised some other issues that I will deal with briefly.
Did the Trial Judge Properly Understand the Morin Guidelines?
[25] Counsel for the appellant submits that the trial judge did not properly consider the application of the Morin guidelines. The suggested Morin guidelines for reasonable institutional delay for a normal case proceeding through the provincial court to the superior court are to be considered on top of the neutral intake periods of delay at both levels of court. The Morin guidelines for institutional delay are 8 to 10 months in the provincial court and 6 to 8 months in the superior court.
[26] Counsel for the appellant submits that the trial judge failed to take into account the neutral intake periods in both the Ontario Court of Justice and the Superior Court of Justice and erred in attributing those periods to institutional delay. While some of the trial judge’s reasons can admit of this interpretation, when the reasons are read as a whole, in my view it is apparent that the trial judge was alive to the difference between institutional delay and intake delay. This is manifest from his statement that the period of September 6, 2006 to June 23, 2008 was institutional delay. He has obviously excluded, as neutral intake period, the time from the committal for trial on July 5, 2006 to September 6, 2006 when the parties set the first trial date. I would not give effect to this argument.
Did the Trial Judge Understand the Need to Consider the Societal Interest?
[27] The appellant submits that the trial judge failed to consider the societal interest in proceeding with the prosecution and failed to balance that interest against the prejudice to the respondent. The trial judge referred to the societal interest in proceeding with the trial at two places in his reasons. He also had the benefit of submissions from counsel who both referred to the need to balance the societal interest with prejudice, even though their submissions on that aspect of the case were relatively brief.
[28] The fact remains that as the trial judge calculated the institutional delay, he was faced with an institutional delay of over 21 months in the Superior Court where he had found actual prejudice to an accused who was anxious to proceed to trial. I would not interfere with the trial judge’s decision, if he properly characterized the institutional delay following the last two adjournments. The question is whether the trial judge did properly characterize the institutional delay following the last two adjournments.
The Delay Following the Mistrial Due to Lack of Institutional Resources
[29] I begin with the delay from March 19 to October 29, 2007. In my view, the trial judge erred in characterizing all of this period as institutional delay. There is no doubt that some of the delay is institutional delay; the system was not able to accommodate the respondent’s trial because of a lack of judicial resources. I do not agree that any of this delay should be considered Crown delay simply because the Crown decided to give priority to another serious case. The Crown had to make a decision. There were three matters set for trial and only one judge. The resulting delay cannot be said to be the result of actions by the Crown, unless it could be said that Crown counsel’s decision was unreasonable or capricious. The trial judge made no such finding. Accordingly, in my view he erred in holding that the delay was the result of the decision of the Crown to give priority to another serious case.
[30] The question of how to characterize the resulting delay is a difficult one. It seems to me that in principle, since the mistrial was caused by a systemic failure, the delay until the system is able to again accommodate the trial is properly characterized as institutional delay. Thus, from March 19, 2007 until June 4, 2007 at least, is institutional delay.
[31] Appellant’s counsel submits that the balance of the delay of 5 months should be considered neutral. He accepts that defence counsel could not be expected to hold his calendar open in the expectation that a trial will not proceed. Thus, the delay cannot be considered defence delay. However, he submits that equally, the system is not at fault; the system was ready to accommodate an earlier trial.
[32] I am very sympathetic to the position of both the respondent and his counsel. They were ready and anxious to proceed to trial and through no fault of theirs the trial could not proceed. Further, defence counsel should be able to organize their affairs in reliance on schedules set by the court.
[33] In my view, the answer to this dilemma is to closely examine the reasons for the resulting delay. In this case, the delay from June 4 to July 31 is properly considered to be neutral. The system was available to hear the case, but defence counsel, for perfectly valid reasons was not. The reason for the delay from June 4 to July 31 was made clear on the record. That delay was not waived but the result of unavailability of defence counsel, who had been prepared for trial on the original date but quite properly had scheduled other matters in the reasonable assumption that the respondent’s case would proceed as scheduled: see R. v. Godin, 2009 SCC 26, at para. 23.
[34] I take a different view of the period from July 31 to October 29, 2007. With the exception of this period, on all other occasions when the matter had to be re-scheduled, Crown counsel took care to put on the record dates when the trial could be accommodated but defence counsel was not available. However, during this period, neither Crown counsel nor the court made reference to any dates. In my view, the record is reasonably open to the inference that the system was not able to accommodate this case from July 31 until October 29, 2007. Given that the initial reason for the delay was institutional delay, the evidentiary burden was on the state to show the system was able to accommodate this trial: see Morin at p. 788. Thus, this 3 month period must be characterized as institutional delay.
Summary of period from March 19 to October 29, 2007:
Institutional delay: 5.5 months
Neutral: 2 months
The Delay Following the Adjournment due to the Illness of the Witness
[35] Delay as a result of the illness of a witness is ordinarily attributed to the inherent time requirements of the case. As Hill J. said in R. v. Hoffner, 2005 CanLII 32924 (Ont. S.C.), at para. 41: “Such a contingency, while unfortunate and unexpected, is nevertheless an inherent feature of the litigation process. In turn, therefore, reasonable delay to a new trial date is prima facie considered neutral.” Hill J. went on to make the important point that not all the ensuing delay is necessarily neutral. If the time to the next trial date is itself unreasonable, some portion of the delay is properly considered institutional delay.
[36] As I read his reasons, the trial judge characterized the delay from October 29, 2007 to June 23, 2008 as institutional/Crown delay because of the tactical or strategic decision by Crown counsel not to proceed without the witness and rely upon an application under s. 715 of the Criminal Code to read in the witness’ testimony from the examination for discovery.
[37] The respondent supports the trial judge’s approach and fairly makes the point that if delay following illness of a witness was always considered neutral, cases could drag on forever despite the mounting prejudice to the accused’s interest in a speedy trial. In effect, the accused would be held hostage to the vagaries of the health of prosecution witnesses. Further, there would be no incentive to the prosecution to seek alternative methods of proving the case, as was available here under s. 715 of the Criminal Code, as long as the institutional delay remained within the Morin guidelines.
[38] While these are legitimate points, in my view, the submission fails to take into account the nature of the Morin guideline for institutional delay. The periods referred to in Morin are guidelines not limitation periods or hard and fast rules. As Sopinka J. said in Morin at p. 796: “A guideline is not intended to be applied in a purely mechanical fashion. It must lend itself and yield to other factors.” It is open to a court to find the delay to trial unreasonable even where the institutional delay falls within the Morin guidelines, especially where there is real prejudice to the accused: Morin at p. 807.
[39] The respondent’s submission also fails to take into account other methods that the trial court has to protect the accused against unreasonable delay. One obvious method that could have been employed in this case was for the presiding judge to refuse the Crown’s application for an adjournment if he considered the request inappropriate or infringing on the respondent’s constitutional rights.
[40] In my view, it was unreasonable for the trial judge to attribute all the delay following October 29, 2007 to actions of the Crown or institutional delay. The trial judge held that the Crown made a tactical decision to seek an adjournment rather than attempt to adduce the complainant’s mother’s evidence under s. 715. However, the record does not bear out that view of the events. The Crown application for the adjournment was heard on October 24 and was supported by an affidavit from an employee of the VWAP. The effect of that affidavit was that the complainant’s mother had been diagnosed with cancer only a few days before and was to have surgery three days before the date for the trial. The complainant’s mother told the VWAP employee that the complainant “will be critical to her after-care both physically and emotionally”. Thus, it was not just that the complainant’s mother was unavailable, but at least at the opening of the trial, it would be difficult for the complainant to testify. I appreciate that the adjournment request was put on the basis of the mother’s unavailability, but it strikes me as inappropriate to force the complainant to testify in those circumstances. Defence counsel made no attempt to pursue the issue or press for the trial to proceed despite the circumstances. Rather, he seemed to accept that the adjournment was inevitable. I repeat what he said about the adjournment at the time:
I mean, given the circumstances, the adjournment was practically a foregone conclusion, so I don’t have much to say about that, but I’m certainly, certainly not in the position to consent. I want – I’m putting it on the record that [the respondent] intends to exercise his 11(b) rights in respect of this.
[41] On this record, the Crown’s decision to apply for an adjournment was reasonable and should not be characterized as a simple tactical decision. Presumptively then, the resulting delay was neutral. That is not to say that all the ensuing delay should be considered neutral. Given the delay that had already occurred through no fault of the respondent, he was entitled to expect the system to respond with some urgency by offering dates for the trial as soon as reasonably possible. He was entitled to have the system give his case priority. My review of the record indicates that this is exactly what occurred. The respondent was offered trial dates within less than three months. That said, if there was evidence that the respondent’s counsel was available within an even shorter time, I might have considered some of that three months to be institutional delay. However, there was no such evidence and no suggestion that defence counsel was able to accommodate an earlier trial date.
[42] It remains to consider the balance of the delay from January 14, 2008 to the selected trial date of June 23, 2008. This is a very long period considering the delay that had already been occasioned in this case and requires special scrutiny. Regrettably, there is not a great deal of information. The court offered the respondent dates in every month between January and June. Defence counsel declined each of those dates because of his other commitments. He made no attempt to supplement the record by indicating that he was available at other times for this trial.
[43] The burden of proof was on the respondent to establish the violation of his rights: see Morin at p. 788. In the circumstances of this case, given that delay following an adjournment due to illness of a witness is prima facie neutral, it was for the respondent to show that the delay was unreasonable. He could not do that simply by putting on the record that he was intending to exercise his s. 11(b) rights. In my view, the trial judge erred in attributing the delay to Crown actions or institutional delay; while it was not waived by the defence, it should be considered neutral.
Summary of period from October 29, 2007 to June 23, 2008:
Institutional delay: 0 months
Inherent or neutral: 8 months
Summary of the Delay
[44] Accordingly, I would summarize the causes of the delay in this case as follows:
Delay from January 12, 2006 to June 23, 2008
Institutional delay: 13.5 months
Crown delay: 1.5 months
Defence delay: 2 months
Neutral, intake: 13 months
Total: 30 months
[45] The Morin guideline for a relatively straight-forward case of this nature proceeding through the Ontario Court of Justice to the Superior Court of Justice for trial is 14 to 18 months: Morin at p. 798; R. v. Austin, 2009 ONCA 329 at para. 56. Thus, properly viewed, the institutional delay in this case is below the Morin guidelines. That does not end the inquiry. The court must still examine the other factors that led to the total delay in deciding whether that delay was unreasonable. In this case, an additional 1.5 months of the delay was caused by the first Crown adjournment request. Thus, the total delay due to institutional and systemic factors and actions of the Crown is 15 months.
[46] In considering whether the delay was unreasonable, regard must also be had to the prejudice to the respondent. The trial judge found actual prejudice to the respondent’s security interests and I have not been persuaded that his findings in that regard were unreasonable. To the contrary, there was abundant evidence of the toll the delay had taken on the respondent in terms of lack of access to his daughter, lost employment opportunities, increased legal fees and stigmatization. Actual prejudice to the respondent’s security interests is an important factor in this case. There was, however, no suggestion of prejudice to the respondent’s fair trial interests or his ability to make full answer and defence. Admittedly, the presence of that type of prejudice is not always required for a finding that section 11(b) has been violated: see Godin at para. 38.
[47] The societal interest in pursuing this case to a trial on the merits was high. These were serious allegations of sexual abuse against a vulnerable victim. That interest has to be balanced against the prejudice to the respondent and his legitimate interest in a speedy trial. This case is a close one. The defence was the cause of only a very small amount of the delay, perhaps two months. I am, however, satisfied that the delay was not unreasonable given that the Crown and institutional delay falls well within the Morin guidelines and that the longest period of neutral delay was the result of the illness of a Crown witness.
[48] In Godin, at para. 39, Cromwell J. speaking for the court, summarized his reasons for finding the same length of time to bring a similar case to trial to be unreasonable:
This is not a complex case. A delay of 30 months in bringing it to trial is striking, given that the delay was virtually entirely attributable to the Crown or institutional delay and was largely unexplained. Critical evidence was disclosed some nine months after the tests which produced it, the appellant’s request for earlier dates was ignored, and when the case was clearly in s. 11(b) trouble, the matter was not proceeded with on the date set for the long-awaited preliminary hearing. The length of the delay and the evidence supported the trial judge’s inference that some prejudice to the appellant resulted from the delay. [Emphasis added.]
[49] There are some important distinguishing features in this case. First, this is not a case where “the delay was virtually entirely attributable to the Crown or institutional delay”. Second, the delay is not “largely unexplained”, and much of it is neutral. Finally, in this case, unlike Godin, there was no finding of actual prejudice to the respondent’s fair trial interests. While the credibility of witnesses may well be a central issue in this case, it is difficult to see how, in the context of allegations of historic sexual assault occurring over a 12 year period, the delay, especially the delay occasioned by the last two adjournments, could significantly impact on this issue.
DISPOSITION
[50] Accordingly, I would allow the appeal, set aside the stay of proceedings and order that the trial proceed.
RELEASED:
“MR” “M. Rosenberg J.A.”
“SEPT 17 2009” “I agree Robert P. Armstrong J.A.”
“I agree G.J. Epstein J.A.”