WARNING

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

CITATION: R. v. K.E., 2013 ONCA 175

DATE: 20130322

DOCKET: C54296

Doherty, MacPherson and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

K. E.

Appellant

Bradley Pearson, for the appellant

Karen Shai, for the respondent

Heard: March 15, 2013

On appeal from the conviction entered by Justice P. Kane of the Superior Court of Justice, sitting with a jury, on March 3, 2011 and the sentence imposed by Justice Kane on September 9, 2011.

BY THE COURT:

[1] The appellant seeks to set aside his conviction by a jury of sexual assault on the ground that he was not tried in a reasonable time as required by s. 11(b) of the Charter. He also seeks leave to appeal from the trial judge’s order that he pay a victim surcharge of $4,000.

THE CONVICTION APPEAL

The Background

[2] The offence of which the appellant was convicted is alleged to have taken place in the early morning of July 15, 2007 in the basement of the appellant’s home at CFB Petawawa. The appellant was then a member of the Canadian Forces. The complainant was a civilian, a long-time friend of the appellant’s partner and of the appellant.

[3] The complainant reported her allegations to military authorities the next day and military police commenced an investigation. In accordance with the procedure followed in the military, the appellant was arrested, but not charged with an offence, on July 24, 2007. He was released on condition that he remain in Canada under military authority and not communicate with or be within 500 meters of the complaint. He continued to perform his duties with the Canadian Forces.

[4] On April 10, 2008, after the military investigation had been completed and reviewed by the military prosecution authorities, the appellant was served with a Record of Disciplinary Proceedings (RDP), the charging document in military prosecutions. About two weeks later, a decision of the Court Martial Appeal Court effectively shut down the then existing system of military prosecutions.

[5] The Regional Military Prosecutor met with the local Crown Attorney about the appellant’s case and others. The Crown Attorney agreed to assume responsibility for the appellant’s prosecution in the civilian justice system.

[6] On November 6, 2008 an information was laid against the appellant charging him with the sexual assault of which he was ultimately convicted.

The Committal for Trial

[7] On July 9, 2009, about eight months after he was charged with the offence in proceedings instituted in the civilian justice system, the appellant was ordered to stand trial at the conclusion of the preliminary inquiry.

The Proceedings in the Superior Court

[8] The appellant appeared in an Assignment Court in the Superior Court of Justice on September 14, 2009. A pre-trial conference was scheduled for October 7, 2009. For reasons that are not material, the pre-trial conference was rescheduled for December 10, 2009.

[9] On January 11, 2010, the appellant appeared in another Assignment Court in the Superior Court of Justice to set a date for trial. His [then] counsel advised the presiding judge that he had several pre-trial motions, including an application to stay proceedings under s. 11(b) of the Charter. Counsel told the presiding judge that he (counsel) was not available to argue the motions, which he estimated would take three days, until October, 2010. He sought a trial date of December 6, 2010, nearly 11 months after the Assignment Court.

[10] The judge presiding in the Assignment Court refused to schedule the pre-trial motions and trial as proposed by the appellant’s [then] counsel. The appellant was required to get new counsel, another lawyer in the same office, and August 3, 2010 was fixed as the date for trial.

The New Trial Date

[11] Towards the end of July 2010, the Crown Attorney learned that no jury panel had been summoned for the week of August 3, when the appellant’s trial was to take place. The Crown Attorney notified counsel for the appellant and offered his (the Crown Attorney’s) consent to a re-election of trial before a judge sitting without a jury. The appellant declined the offer.

[12] On August 3, 2010, trial dates were offered to the appellant beginning in late September, 2010 and continuing throughout the fall and into the winter. Except for one week in December when the Crown Attorney was not available, defence counsel was not available until February 28, 2011. The presiding judge fixed February 28, 2011 as the date for trial. The jury returned their verdict on March 3, 2011.

The Sentencing Proceedings

[13] To permit preparation of a pre-sentence report in New Brunswick where the appellant was then living, sentencing proceedings were adjourned to June 29, 2011.

[14] The pre-sentence reported was received on June 29, 2011, but the sentencing did not proceed on that date because the trial judge was unavailable. He was in another jurisdiction awaiting the verdict of a deliberating jury.

[15] The trial judge imposed sentence, including a $4,000 victim surcharge on September 9, 2011.

THE GROUNDS OF APPEAL

[16] On his appeal from conviction, the appellant contends that the judge who heard the two s. 11(b) motions in advance of trial (the motion judge) erred by

i. mischaracterizing the delay prior to April 10, 2008;

ii. mischaracterizing the delay after August 3, 2010, the first trial date; and

iii. failing to enter a stay of proceedings even if he had properly characterized the periods of and responsibility for the delay.

The appellant also contends that the additional delay caused by the time that elapsed in concluding sentencing proceedings breached ss. 7 and 11(b) of the Charter.

[17] We would not give effect to any of the alleged errors in connection with s. 11(b) of the Charter.

DISCUSSION

The Delay Prior to April 10, 2008

[18] The appellant submits that the motion judge erred in law in determining that the starting date for the purpose of the delay analysis under s. 11(b) was April 10, 2008, the day he was served with the RDP, the charging document in the military prosecution. The appellant says that the starting date for s. 11(b) purposes should have been either

i. the date of his arrest without charge and release subject to conditions, July 24, 2007; or

ii. at the latest, the date upon which DNA results were received by the authorities, January 30, 2008.

[19] We disagree.

[20] It is well-settled that a person is “charged with an offence” within s. 11, thus s. 11(b) of the Charter, when an information is sworn alleging an offence against him or her: R. v. Kalanj, 1989 CanLII 63 (SCC), [1989] 1 S.C.R. 1594, at p. 1607. Time reckoning for the purposes of claims of infringement of the right to be tried within a reasonable time commences with the laying of the information and continues until the completion of the trial.

[21] The motion judge’s assessment of the appellant’s claim under s. 11(b) proceeds from the starting date of April 10, 2008, the day upon which the appellant was “charged with an offence” in the system of military justice then in force. It may well be open to question whether the commencement date should have been nearly seven months later, on November 6, 2008, when the appellant was charged with the offence in the civilian courts before which he was ultimately tried. But that issue we leave for another day.

[22] To the extent that the appellant invites us to consider pre-charge delay as relevant to the s. 11(b) analysis, we decline to do so. Pre-charge delay is not counted in determining the length of the delay for the purposes of the analysis under s. 11(b). The reason is simple: prior to charge, an accused has not been “charged with an offence” as required by the opening words of s. 11 of the Charter: Kalanj, at p. 1610. But in some circumstances, pre-charge delay may have an influence on the overall determination of whether post-charge delay is unreasonable: R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771, at p. 789.

[23] We are not persuaded that this is one of those cases in which the period preceding the laying of the charge, whichever date is appropriate for the s. 11(b) analysis, has any influence on the overall determination of whether the post-charge delay was unreasonable. Pre-charge delay did not infringe the appellant’s right to security of the person, or his liberty interest, or compromise his right to make full answer and defence.

The Post August 3, 2010 Delay

[24] The appellant also contends that the motion judge erred in his characterization of the period following the first trial date of August 3, 2010 in his s. 11(b) analysis.

[25] Again, we disagree.

[26] When the Crown Attorney learned in late July, 2010 that no jury panel had been summoned for the appellant’s trial to begin on August 3, 2010, he immediately notified counsel for the appellant. The Crown Attorney offered to consent to a re-election to trial by a judge sitting without a jury but the appellant, as was his undoubted right, declined to re-elect his mode of trial.

[27] The appellant was offered trial dates beginning in late September, 2010, a matter of weeks after the first scheduled trial date. Apart from one week in December when the Crown Attorney was not available, counsel for the appellant was not available until late February, 2011. The motion judge did not consider that the entire seven-month period between the trial dates should be characterized as institutional or Crown delay, but he did not assign specific periods to the various participants.

[28] In our view, the motion judge’s approach to this time period did not cause any prejudice to the appellant. While defence counsel is not expected to hold him or herself in a state of perpetual readiness after a trial does not proceed on a scheduled date, on any reasonable view, a significant period of time between trial dates was rightly assigned to neutral delay.

The Delay in Sentencing

[29] The appellant also argues that the delay in completing sentencing proceedings, in particular, the delay between the original and actual sentencing dates, should be counted in the total period of delay and result in a stay of proceedings.

[30] We do not agree.

[31] On the date fixed for sentencing, the trial judge was unavailable because, as a member of an itinerant court, he was sitting in another jurisdiction awaiting the verdict of a jury. As this court noted in another context in R. v. Meisner, [2004] O.J. No. 3802, at para. 3, things happen from time to time in the criminal justice system for which no one can be faulted and which inevitably require an adjournment. Inherent in the process is that time is required to reschedule the adjourned proceedings. That happened here. The accommodation was reasonable, the delay neutral for the purposes of the s. 11(b) assessment.

[32] In the result, the appeal from conviction is dismissed.

THE SENTENCE APPEAL

[33] The appellant also alleges error in the imposition of a victim surcharge of $4,000 as part of the sentence imposed upon him. The respondent takes the position that a reduction in the amount of the victim surcharge would not be contrary to the interests of justice.

[34] The obligation to impose a victim surcharge on a convicted offender, except where the offender establishes undue hardship to him or her or his or her dependants, is created by s. 737(1) of the Criminal Code. The general rule about quantum, in circumstances such as these, is that the amount of the victim surcharge is to be $100. This amount may be increased where an increase is appropriate in the circumstances and the offender is able to pay a higher amount.

[35] After the trial judge had imposed sentence, including ancillary DNA collection and SOIRA orders, the court clerk asked whether a “victim fine surcharge” was being imposed. During the brief discussion that followed, the trial Crown (not Ms. Shai) suggested that the surcharge should be fixed in an amount towards the upper end of a range of $1,000 to $5,000.

[36] On appeal, Crown counsel takes the position that a reduction in the amount of the victim surcharge would not be contrary to the interests of justice. We agree. The trial record reveals no basis upon which the trial judge could conclude that such a departure from the statutory minimum victim surcharge was appropriate in the circumstances of this case. Nor was any meaningful inquiry conducted about the ability of the appellant to pay the amount of victim surcharge that was imposed.

[37] In the result, we grant leave to appeal sentence and allow the appeal from sentence to the extent of reducing the victim surcharge from $4,000 to $100 in accordance with the provisions of s. 737(2)(b)(ii) of the Criminal Code.

Released: March 22, 2013 “DD”

“Doherty J.A.”

“J. C. MacPherson J.A.”

“David Watt J.A.”