COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Stilwell, 2014 ONCA 563

DATE: 20140724

DOCKET: C57562

Cronk, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen
Respondent (Appellant)

and

Christopher Stilwell
Applicant (Respondent)

Karen Papadopoulos, for the appellant

Uma Kancharla, for the respondent

Heard: March 31, 2014

On appeal from the stay of proceedings ordered by Justice Judith C. Beaman of the Ontario Court of Justice, dated July 31, 2013.

Pepall J.A.:

Introduction

[1] The respondent, Christopher Stilwell, was charged with one count each of distributing, possessing and accessing child pornography. Just over twenty-six months elapsed between the date the charges were laid on March 31, 2011, and June 7, 2013, the anticipated conclusion of the respondent’s trial.

[2] The respondent applied for a stay of proceedings, arguing that his right to a trial within a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedoms had been infringed. The trial judge determined that 12.5 months of the delay was attributable to the Crown and held that this delay considerably exceeded the guideline of eight to ten months set out in R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771. Finding that the delay resulted in actual prejudice to the respondent, the trial judge stayed the charges.

[3] The Crown appeals from this order. It claims that the delay was reasonable having regard to the volume of files on the respondent’s computer that the investigating officers needed to review and categorize. The Crown also argues that the trial judge erred in her assessment of the prejudice the respondent experienced as a result of the delay, and in her balancing of the interests s. 11(b) is designed to protect in deciding whether a stay was warranted.

[4] For the reasons that follow, I accept the Crown’s second submission and I would allow the appeal.

The Trial judge’s Decision

[5] Before the trial judge, the Crown conceded that the delay merited scrutiny under s. 11(b) of the Charter. The trial judge held that the accused did not expressly or impliedly waive any time periods, leaving the entire 26 month period to be assessed.

[6] The trial judge considered the reasons for the delay as identified in Morinto determine whether the delay was unreasonable: inherent time requirements of the case; actions of the accused; actions of the Crown; limits on institutional resources; and other reasons for delay.

(a) Neutral Intake Time: Nine Months

[7] The trial judge addressed the inherent time requirements of the case. This time is neutral and is not assigned to either party. She observed that in Morin, Sopinka J. held that the complexity of the case was an important factor in determining the inherent time requirements, and that complexity was affected by, among other things, the nature and duration of the offences, the size and complexity of the investigation, the work involved in preparing and delivering disclosure, and the need for judicial pretrial conferences and pretrial motions. She noted Sopinka J.’s observation that certain activities common to all criminal matters such as retention of counsel, bail hearings, police and administrative paperwork and disclosure must be considered. This intake time is also treated as neutral.

[8] The Crown contended that the investigating officers had to analyze over 244,000 image and video files, of which in excess of 9,000 were ultimately considered to constitute child pornography. In addition, the Crown noted that D.C. Morgan, the sole officer in charge of the Child Pornography and Exploitation Unit of the Kingston Police Force, took an unanticipated, extended period of leave shortly after the respondent was charged. Her replacement officer, D.C. Gobeil, continued to be responsible for his normal duties in addition to those he took over on her behalf. The Crown argued that the associated delays should be considered in that context.

[9] The trial judge acknowledged that by its nature, the task of viewing and classifying child pornography takes a huge toll on officers and necessitates frequent breaks. Further, she recognized that unlike most criminal offences, the bulk of the investigation in child pornography cases occurs after the charges have been laid, which in turn delays disclosure. She referred to R. v. Burnes (24 April, 2013) Kingston (Ont. S.C.), a decision by Tausendfreund J., and R. v. Stelpstra (4 June, 2012) (Ont. C.J.), her own decision. Both were child pornography cases in which the court held that nine and eight months, respectively, were suitable intake periods.

[10] The trial judge noted that three different lots of disclosure were released to defence counsel within six weeks of the laying of charges but a further package did not arrive until some 14 months later. The final report was available in June 2012.

[11] The trial judge considered the vast quantity of images, the unanticipated leave of the investigating officer and the inaction of defence counsel in pursuing disclosure. She assigned nine of the 26 months to the intake period, thereby treating that time as neutral.

(b) Delay Attributable to the Defence: Five and a Half Months

[12] The trial judge proceeded to attribute to the defence one-half of the responsibility for the 11 months of delay between the end of the intake period, January 1, 2012, and the date the parties set the matter down for trial, November 20, 2012. In her view, the defence could have been more assertive in obtaining disclosure and it was unnecessary for defence counsel to await the final report before setting a date for trial.

[13] The trial judge noted that while the final report was available as of June 20, 2012, defence counsel did not pick it up until sometime in August and did not set a trial date until November.

(c) Delay Attributable to the Crown: Five and a Half Months

[14] The trial judge attributed the remaining one-half, or five and a half months of the 11 months of delay, to the Crown. As such, the trial judge apportioned an equal amount of unreasonable delay to the Crown as to the defence. She stated, at p. 21:

While I am sympathetic to the police and the difficult task they have to perform, it is clear that the resources assigned to the completion of this analysis were woefully inadequate, particularly when the main investigator became unavailable. It is well settled that decisions on the part of the state concerning the allocation of its resources cannot be used to justify the abrogation of the rights of an accused person.

(d) Institutional Delay: Seven Months

[15] The trial judge then considered institutional delay, that is, the period of time after the parties are ready for trial but during which the system cannot accommodate them. She calculated the institutional delay in this case as being seven months. It represented the time between the date both parties were in a position to set the matter down for trial, November 7, 2012, and the date of the hearing of the application, June 7, 2013.[^1] She considered that the seven months of institutional delay was “well within the period deemed acceptable for our court by the Supreme Court.”[^2]

[16] The total time attributed to the Crown was thus 12.5 months: seven months systemic delay plus the aforementioned five and a half months of unreasonably

delayed disclosure.[^3]

(e) Prejudice

[17] The trial judge reviewed the contents of the affidavit filed by the respondent and on which he was not cross-examined. In this affidavit, the respondent asserted that his life had been “on hold” for over two years since his arrest and that he lived in a state of indescribable turmoil. He said he suffered depression and anxiety attacks that required medication, which in turn affected his ability to work. His thoughts had turned to suicide and he experienced sleeplessness and nightmares in which he relived the circumstances of his arrest. He had gained a considerable amount of weight and developed hypertension. He attended counselling, which was expensive. He was forced to quit his job at Loblaws and move in with his parents, although he did find new employment. He believed that the uncertainty of the court process kept him from seeking better employment. He felt as if he could go nowhere without his mother for fear he might be accused of breaching his bail conditions. His parents had to drive him everywhere and he had been unable to take driving lessons because his court dates were every two months and he was told that he would lose any money paid if he missed one lesson.

[18] The respondent stated that the delay affected his ability to make friends and socialize with his co-workers. He asserted that he was paranoid and jumpy and the delay had put a strain on his relationship with his parents, his brother and his brother’s family, and had interfered with his and his parents’ ability to interact with his elderly, ill grandparents. His brother has a young child with whom he was not allowed to associate because his bail conditions prevented him from being near children. The respondent also said that the delay and court appearances had resulted in significant legal fees.

[19] The trial judge noted that the Crown contended that the court ought not to place much weight on these assertions. The Crown argued that the respondent had never applied to amend any of his more restrictive bail conditions, even though the Crown was open to such an application. He obtained a new full-time job near his parents’ home within two weeks of leaving his job at Loblaws and, as he made no mention of his current salary, the court could assume that he was earning at least what he was making before.

[20] The Crown also argued that the hardship the respondent identified reflected the charges and the bail conditions, not the delay in bringing the case to trial. For example, the respondent’s weight problem pre-dated his arrest, he made suicidal remarks immediately after being charged and his sleep problems stemmed from reliving the circumstances of his arrest, when he was awoken by police storming into his apartment. The Crown also observed that the respondent acknowledged that his mental health problems had improved through counselling. The Crown submitted that the respondent’s decision to withdraw from social settings was a result of the nature of the charges and the potential for social stigma associated with child pornography charges, not from delay.

[21] The trial judge held, at p. 30: “I agree that the points raised by the Crown have validity, and serve to undermine the Applicant’s argument that the delay itself has been the primary cause of his personal difficulties.” She went on to add her own comments about the degree of prejudice arising from the delay, noting:

• The respondent’s complaints that the delay prevented him from doing certain things (e.g. getting a driver’s licence) because he had to attend court every two months were undercut by the fact that his lawyer filed a designation of counsel on her first appearance. This relieved the respondent of having to attend court until the actual hearing date.

• There was no actual social stigma attached to the charges or to the delay because no one but his family knew about them.

• The respondent attended counselling to seek guidance on an “addictive personality.” Any financial cost associated with this therapy did not relate to the fallout from the charges.

• While the respondent might have chosen to be accompanied by his mother at all times, he was not required to do so. He was simply required to reside with his parents, abstain from the use of electronic devices that connect to the internet, avoid places where young children attend and not possess weapons. These conditions were not overly onerous and, in any event, the Crown was open to amendment of the terms.

[22] The trial judge wrote, at p. 32: “I find that many of the elements allegedly constituting prejudice stemming from the delay, arose simply by virtue of the fact of the charges themselves. They are not, as a consequence, relevant to the section 11(b) analysis.”

[23] Despite this, the trial judge went on to state, at pp. 32-33:

That said, I am satisfied that the Applicant has suffered some prejudice as a consequence of the delay in bringing his matter before the court. He has lived in a state of limbo for over two years, the stress of which has clearly created a kind of paralysis in his life. This has left him in a state of constant dread, making it impossible for him to move forward with his life in any meaningful way.

For over two years, he has eschewed intimate relationships and missed out on normal social activities for fear that young children might be included. This has interfered with his ability to bond with his co-workers and friends. In particular, he has been denied the opportunity to spend important family time with his little niece. With each passing day, it has been harder and harder for him to engage with the world. He has had to take medication to cope. I accept that this has caused him psychological harm.

Finally, the cost of having to retain a lawyer for over two years, for multiple court appearances and meetings, is significant and constitutes serious, additional financial prejudice to him.

Taken together, I am satisfied that the lengthy delay in bringing this matter before the court for determination has had the effect of undermining the Applicant’s security of the person, resulting in a state of prejudice to him.

[24] The trial judge acknowledged, at p. 34, that “most of the enumerated interests protected by s. 11(b) are not particularly applicable to the Applicant’s situation.” He spent a single night in custody upon arrest and was released on conditions that “were not particularly onerous”. His ability to make full answer and defence was unaffected by the delay, since the bulk of the evidence against him was digitally preserved. The trial judge concluded that the “only protected interest of relevance” was the “personal prejudice” the respondent suffered.

[25] The trial judge continued, at pp. 34-35:

Society’s interest in ensuring that a matter is tried on its merits must be given due consideration by the court. According to the Supreme Court of Canada in R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, charges relating to child pornography are crimes of enormous gravity, affecting both the victims and society as a whole. At the same time, while the court held that society has a substantial and compelling interest in having such cases tried on their merits, the rights of the accused persons must be properly respected. The public’s confidence cannot be allowed to be undermined by a justice system that permits its citizens, deemed innocent until proven guilty, to languish untried on an indefinite basis. In my view, it is not only in Mr. Stilwell’s interest, but also in the public’s interest that he not have to wait over 26 months to have his charges finally concluded. This wait surpassed the bounds of tolerability.

(f) Conclusion

[26] The trial judge concluded, at p. 35:

I am satisfied that the 12.5 months of institutional delay considerably exceeds the 8 to 10 month guidelines established by the Supreme Court in Morin. Since I have made a finding that the Applicant suffered actual prejudice by having to wait this long to have his charges determined, I am satisfied that his rights under s. 11(b) of the Charter have been infringed. As a consequence, for the reasons noted, these charges will be stayed pursuant to s. 24(1).

Grounds of Appeal

[27] Before this court, the Crown argues that a proper allocation of delay would be as follows:

Intake period: neutral

nine months

Defence conduct

eight and a half months

Unexpected leave of officer in charge: neutral

two and a half months

Institutional delay

six and a half months

[28] The Crown advances five grounds of appeal.

(a) Defence Delay

[29] First, it submits that the trial judge erred in failing to attribute more of the delay to the respondent despite correctly finding that the respondent should have set a trial date prior to receipt of the final report.

[30] There is no question that the trial judge was critical of the defence, stating at p. 15:

I am convinced that the Defence could have used more diligence in obtaining the disclosure to a level that would have satisfied her and her client of the case they had to meet. Her oft-repeated mantra at virtually every court appearance that the Crown believed that the case should be adjourned in two month intervals demonstrated, in my view, a certain level of complacency. I remain unsatisfied that it was necessary for Defence counsel to wait for the absolute final report before setting her case down for trial.

[31] The trial judge attributed five and a half months of the delay to the defence in part because she found that it was unnecessary for counsel to await the final report before setting a trial date. The trial judge explicitly recognized a “practice” in the Kingston area, albeit a “regrettable” one, for defence counsel to await receipt of the final report before setting a matter down for trial. On the other hand, the trial judge found that the record did not reveal any communications by the Crown that the case be set down for trial prior to completion of the final report, nor did the Crown make any effort to enlist the assistance of the court to encourage the setting of a trial date in the absence of a final report.

[32] I would not give effect to this submission.

(b) Intake Period for Child Pornography Charges

[33] Secondly, the Crown submits that the trial judge erred in applying a standard period of inherent delay to a child pornography case; rather, the intake period should have been expanded to reflect the time required to produce the final report. The Crown contends that in this case 14.5 months was required.

[34] At first blush, this argument has some appeal. The larger an accused’s database of child-related images, the longer it will take investigating officers to view and categorize those images. Disclosure to the defence in the form of a final report will accordingly take more time. In this case, over 244,000 files had to be analyzed for evidence of child pornography. However, a close review of the record reveals that it took the investigating officers approximately 25 hours in aggregate to categorize the images found on the respondent’s computer.

[35] In oral argument, the Crown did not dispute that 25 hours was the most she could prove on the record, but suggested that the officers’ time logs might not have recorded every minute they were categorizing images from the respondent’s computer because they often toggled back and forth between cases. The Crown urged the court to focus on the volume of images the officers had to review rather than the recorded hours it took them to do it.

[36] Both the lead investigator, D.C. Morgan, and her replacement when she went on leave, D.C. Gobeil, testified on the amount of time they spent categorizing images for the respondent’s case.

[37] D.C. Morgan’s notes reflect the hours that she worked on the respondent’s case. She testified that she did not record every single time that she categorized images. However, she agreed with defence counsel’s assertion that she could not say that the total time she worked on categorization for the respondent’s file was more than 9 hours, except to guess.

[38] D.C. Gobeil had some familiarity with the case because he assisted in executing the search warrant on March 31, 2011, the day of the respondent’s arrest. He testified that he did 75 to 80% of the categorization of the images for this case. He did not assert that there were other times he worked on the categorization that were not recorded in his notes.

[39] I accept that child pornography investigations are unique in that the storage capabilities of electronic devices may result in huge universes of information that can only be analyzed after charges have been laid. I also recognize that officers categorizing these types of images need frequent breaks due to the emotional toll associated with the work. But I reject the Crown’s suggestion that the categorization inherently demanded the additional five and a half months of time treated as Crown delay by the trial judge. It should not properly be described as neutral time. I see no error in the trial judge’s treatment of the intake and inherent time allocations.

(c) Eleven Months Between January and November 2012

[40] Thirdly, the Crown submits that the approximately five month period between delivery of the final report in June 2012 and the setting of a trial date in November 2012 ought to have been attributed to the defence, together with a material portion of the period between January 2012 and June 2012.

[41] The trial judge addressed the 11 month period between January and November 2012. She observed that the defence did not pick up the final report until sometime in August even though it was ready on June 20, 2012. Moreover, a trial date was not selected until November 20, 2012. That said, the trial judge found that there was nothing in the record that reflected any Crown efforts to hasten disclosure. The Crown did not make inquiries of the police to ascertain their progress with the report. She therefore assigned five and a half months of the delay for the 11 month time period to the Crown and five and a half to the defence, essentially finding that both sides were equally responsible for this delay. I am unable to conclude that this was in error.

(d) Leave of Absence

[42] Fourth, the Crown submits that the trial judge erred in failing to treat any of the delay resulting from D.C. Morgan’s unanticipated leave of absence as neutral. In particular, the Crown argues that a delay of two and a half months arose when she went on leave because D.C. Gobeil could not immediately start work on the respondent’s case. The Crown asserts that this delay should be classified as neutral to reflect the time required to find a competent interim replacement.

[43] In R. v. MacDougall, 1998 CanLII 763 (SCC), [1998] 3 S.C.R. 45, at para. 45, the Supreme Court held that “the inherent time requirements of a case are not limited to commonplace delays which occur in every situation, but may include delay due to extraordinary and unforeseeable events.” This statement was a recognition that “each case will bring its own set of facts which must be evaluated”: MacDougall, at para. 45, citing Morin, at p. 792.

[44] In my view, the trial judge did not err in failing to allocate additional neutral time to D.C. Morgan’s leave of absence. First, the trial judge did consider the unanticipated leave in assigning nine months to the intake period.

[45] Secondly, while the trial judge did state that D.C. Morgan’s leave was unexpected, D.C. Morgan provided two to three weeks’ notice of her leave, she knew that D.C. Gobeil would be assuming her caseload and she briefed him before she left. The Crown asserts that two and a half months were required to find a competent replacement for D.C. Morgan, but this is not borne out by the record. D.C. Gobeil was always to be her replacement. The reason for this delay was his inability to start on the categorization until late July 2011, due to his existing workload. The problem was not the leave-taking; it was insufficient resources.

(e) Prejudice and Balancing of Interests

[46] Finally, the Crown submits that a correct balancing of the interests protected by s. 11(b) provided no justification for a stay. The Crown argues that the combination of defence conduct inconsistent with a desire for a timely trial, minimal prejudice suffered by the respondent, the seriousness of the charges and the total delay that nominally exceeded the Morin guidelines demands that the case be heard on its merits.

[47] I agree with this submission. I do so for the following reasons.

[48] The reasonableness of delay under s. 11(b) of the Charter is assessed by looking at the length of the delay, less any periods that have been waived by the defence, and then by taking into account the reasons for the delay, the prejudice to the accused, and the interests that s. 11(b) seeks to protect: Morin, at pp. 786-89; R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, at para. 18.

[49] In R. v. Bennett (1991), 1991 CanLII 2701 (ON CA), 3 O.R. (3d) 193 (C.A.), aff’d 1992 CanLII 61 (SCC), [1992] 2 S.C.R. 168, Arbour J.A. (as she then was) stated, at p. 211: “Ultimately, it is the reasonableness of the total period of time that has to be assessed in the light of the reasons that explain its constituent parts” (emphasis added).

[50] In the case under appeal, the trial judge determined that the entire 26 month and seven day period of delay “surpassed the bounds of tolerability”, but in reaching this conclusion, she did not revisit her analysis of the time periods that comprised that final tally.

[51] While over 26 months elapsed between the respondent’s arrest and the s. 11(b) hearing, 14.5 of those months did not count against the Crown for s. 11(b) purposes (nine months of neutral intake plus five and a half months of defence delay). The trial judge further found that the seven months of institutional delay was well within the period deemed acceptable by the Supreme Court. Indeed, this institutional delay was actually shorter than the eight to ten months guideline set out in Morin. The trial judge concluded that only five and a half months of the 26 month total was unreasonable delay attributed to the Crown.

[52] Furthermore, the trial judge characterized the 12.5 months (the total of Crown and institutional delay) as “considerably” exceeding the Morin guideline of eight to ten months. With respect, I disagree. When regard is had to the minimal prejudice suffered by the respondent, discussed below, this characterization is misplaced. As held by this court in R. v. Tran, 2012 ONCA 18, 287 O.A.C. 94, at para. 63:The Morin guideline for delay in the Ontario Court of Justice is eight to ten months. However, the guideline is just that: a guideline, not a limitation period. Deviations of several months in either direction can be justified by the presence or absence of prejudice: Morin, at p. 807.

[53] Additionally, while earlier in her analysis the trial judge found that the respondent could have, and should have, been more diligent in moving the case forward, she did not factor the respondent’s own contribution to the delay into her prejudice analysis. In Morin, Sopinka J. held, at p. 802, that inaction by an accused may be relevant in assessing the degree of prejudice:

Action or non-action by the accused which is inconsistent with a desire for a timely trial is something that the court must consider.… [T]he court must be careful not to subvert the principle that there is no legal obligation on the accused to assert the right [to a speedy trial]. Inaction may, however, be relevant in assessing the degree of prejudice, if any, that an accused has suffered as a result of delay…. Conduct of the accused falling short of waiver may be relied on to negative prejudice. [Emphasis added.]

[54] There were nine status court hearings between June 2011 and November 2012. In my view, if the trial judge thought that the defence should have moved more quickly in setting a date and that not all these appearances were necessary, that should have been reflected in her prejudice analysis. Instead, the trial judge held that the cost of “multiple court appearances and meetings” over two years constituted “serious, additional financial prejudice” to the respondent. On the trial judge’s own findings, some of this cost was unnecessary and was the result of the respondent’s (or his counsel’s) considered choices.

[55] The period of unreasonable Crown delay must also be balanced against the minimal prejudice the respondent experienced as a result of the delay as opposed to the fact of the charges. In my view, the trial judge did not adequately make this distinction.

[56] The trial judge found that the respondent suffered "personal prejudice" because he could not socialize with friends, family and co-workers for fear there may be children present. The bail conditions imposed the restriction on being near children. Contrary to the trial judge's finding, the outstanding criminal charges did not prevent the respondent from engaging in age-appropriate social activities such as dating or meeting friends after work.

[57] On the trial judge’s own findings, the delay did not adversely affect the respondent’s liberty interests (he spent one night in custody, and thereafter was released under liberal bail conditions). He also secured full-time employment within weeks of being charged.

[58] Nor did the delay impair the respondent’s fair trial rights, because the evidence against him was digitally preserved and did not rely on witnesses’ memories. This factor, while not dispositive, distinguishes this case from those where delay undermines an accused’s ability to make full answer and defence.

[59] In Godin, for example, the accused was charged with sexual assault in circumstances where the complainant’s rape kit included a DNA profile of semen that did not match the accused’s DNA. The Crown’s delay in disclosing the DNA analysis had the potential to undermine the accused’s ability to cross-examine relevant witnesses on when the complainant last had sex. This led to a risk of prejudice to the accused’s ability to make full answer and defence.[^4]

[60] I also note that in the case under appeal, the respondent never applied to vary bail even though the Crown expressed a willingness to amend his release terms. While his bail conditions are relevant in assessing the degree of prejudice he suffered, the respondent’s failure to seek a variation of those conditions undercuts the trial judge’s conclusion that the respondent suffered “personal prejudice” serious enough to warrant a stay of proceedings.

[61] Lastly, in my view, while the trial judge did not err in finding some prejudice, she significantly under-emphasized the seriousness of the charges against the respondent and society’s interest in having them tried on their merits. At p. 787 of Morin, Sopinka J. stated that as the seriousness of the offence increases, so does the societal demand that the accused be brought to trial. Further, as McLachlin J. (as she then was) stated in her concurring reasons in Morin, at p. 812: “Where the accused suffers little or no prejudice, it is clear that the consistently important interest of bringing those charged with criminal offences to trial outweighs the accused's and society's interest in obtaining a stay of proceedings on account of delay, because the consequences of the delay are not great.”

[62] The police found over 9000 images and 60 videos of child pornography on the respondent’s computer. D.C. Gobeil testified that he was struck by the volume of pictures, noting:

[S]ometimes when you categorize images on a computer you will get long streaks of sort of normal, run of the mill everyday surfing habits. People read news. People read internet sites. Just about every picture [on the respondent’s computer] was pictures of children, whether they were clothed or unclothed or partially clothed….

[63] Most recently, the Supreme Court commented on the gravity of child pornography offences, albeit in the context of a s. 8 Charter infringement, in R. v. Spencer, 2014 SCC 43. In that case, the accused was charged with possession and distribution of child pornography. The Supreme Court held that the accused’s s. 8 rights had been infringed because the police had obtained his IP address without prior judicial authorization. At para. 78, the Supreme Court described the impact on the accused’s Charter-protected rights as serious but nonetheless determined that the evidence should not be excluded. Cromwell J. explained, at para. 80:

Society has both a strong interest in the adjudication of the case and also in ensuring that the justice system remains above reproach in its treatment of those charged with serious offences. If the evidence is excluded, the Crown will effectively have no case. The impugned evidence (the electronic files containing child pornography) is reliable and was admitted by the defence to constitute child pornography. Society undoubtedly has an interest in seeing a full and fair trial based on reliable evidence, and all the more so for a crime which implicates the safety of children. [Emphasis added.]

[64] I recognize that the judicial balancing task under s. 8 of the Charter is differentthan it is under s. 11(b) of the Charter. Nonetheless, the public interest in having crimes against children prosecuted on their merits remains the same. The public interest in trying these charges is obvious and compelling.

Conclusion

[65] I agree with the trial judge that the Crown delay in disclosing the final report was clearly disproportionate to the time spent preparing it. In my view, however, this fact should not overwhelm the analysis. On the trial judge’s own findings, the delay in disclosing the final report accounted for only five and a half months of the total 26 month period. The bulk of the time was taken up by neutral intake time (nine months), defence delay (five and a half months) and reasonable institutional delay (seven months). When the five and a half months of unreasonable Crown delay is added to the institutional delay, the total is 12.5 months – beyond the Morin guideline, but not egregiously so. When this delay is balanced against the minimal prejudice the respondent experienced and the grave seriousness of the charges against him, the delay, while not ideal, was not unreasonable.

[66] For these reasons, I would allow the appeal, set aside the stay, and order that the matter proceed to trial.

Released: “SEP” July 24, 2014

“S.E. Pepall J.A.”

“I agree. E.A. Cronk J.A.”

“I agree. M. Tulloch J.A.

[^1]: When the parties finally set the matter down for trial on November 20, 2012, the first available trial date when all witnesses were available was June 7, 2013. The respondent filed the underlying Charter application prior to trial, and it was heard on June 7, 2013.

[^2]: The Crown conceded that the time from the set date to the s. 11(b) hearing should be considered institutional delay.

[^3]: The trial judge’s calculations actually add up to 27 months although the delay was 26 months and 7 days. The discrepancy arises from a rounding up of the time between the end of the intake period (January 1, 2012) and the date the matter was set down for trial (November 20, 2012) and in commencing the institutional delay from November 7, 2012, the status court date, rather than November 20, 2012 when the trial date was selected.

[^4]: Godin also differed in other material respects from this case; for example, virtually all of the delay was attributable to the Crown, and the defence tried in vain to move the case forward more quickly.