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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.

Court File and Parties

CITATION: R. v. B.H., 2009 ONCA 731

DATE: 20091019

DOCKET: C49029

COURT OF APPEAL FOR ONTARIO

MacPherson, Cronk and Epstein JJ.A.

BETWEEN:

Her Majesty the Queen

Appellant

and

B.H.

Respondent

Deborah Krick, for the appellant

Delmar Doucette, for the respondent

Heard and released orally: October 16, 2009

On appeal from the stay of proceedings ordered by Justice Barry G.A. MacDougall of the Superior Court of Justice on June 4, 2008.

ENDORSEMENT

[1] The appellant Crown appeals the stay of proceedings ordered by MacDougall J. of the Superior Court of Justice on June 4, 2008 in a prosecution of the respondent B.H. on a charge of sexual assault. The stay was ordered pursuant to s. 11(b) of the Charter in a case that took 35 ½ months to reach trial in the superior court.

[2] The appellant appeals on a number of grounds, including the trial judge’s attribution of some of the delay to the Crown, his failure to assign more of the blame for the delay to the defence, his refusal to find that the defence effectively waived significant periods of the delay, and his conclusion that the respondent suffered prejudice because of the delay.

[3] We do not accept these submissions. The delay in this case was quite extraordinary for a fairly simple case scheduled to last three days. The principal reason for the delay was the Crown’s desire to join this prosecution to a second sexual assault charge, involving a different complainant, laid against the respondent a year after the first. Not surprisingly, the respondent sought to sever the two charges from each other. For a variety of reasons, the court administration was not able to identify who would be the judge. Accordingly, the application was adjourned on several occasions for almost exactly a year. In addition, on several occasions the trial was delayed because the Crown decided to prioritize other trials. Moreover, at no time did the Crown raise the potential s. 11(b) issue, even after the case was well offside the Morin guidelines. These delays, both institutional and Crown initiated, when coupled with the respondent’s demonstrated eagerness on several occasions to take steps to proceed to trial, justified the trial judge’s conclusion that the delay in the case was “unreasonable and unacceptable”.

[4] Finally, the trial judge’s prejudice analysis fits comfortably inside what Cromwell J. said in R. v. Godin, 2009 SCC 26, [2009] S.C.J. No. 26 at para. 31:

The question of prejudice cannot be considered separately from the length of the delay… Here, the delay exceeded the ordinary guidelines by a year or more, even though the case was straightforward. Furthermore, there was some evidence of actual prejudice and a reasonable inference of a risk of prejudice.

[5] The appeal is dismissed.

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”

“G.J. Epstein J.A.”