WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences.

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

486.6 Offence.

(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.

Court Information

Court File No.: 11-1809

Date: 2012-10-22

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

T.R.T.

Before: Justice Stephen D. Brown

Heard on: October 9, 2012

Ruling on 11(b) Application released on: October 22, 2012

Counsel:

Charon Kerr for the Crown

Paul Stunt for the accused T.R.T.

DECISION

A. INTRODUCTION

[1] The defendant is alleged to have committed sexual assault and sexual interference against his daughter between the period of September 2007 and June 2008. With the defendant's consent and waiver of a limitation periods the Crown has elected to proceed summarily on these charges.

[2] The defendant through his counsel makes an application pursuant to s. 11(b) of the Charter of Rights and Freedoms and states that his right "to be tried within a reasonable time" has been infringed.

[3] The relief sought pursuant to s. 24(1) of the Charter is a judicial stay of proceedings.

[4] He was charged with these offences on June 6th, 2011 and released through the combined operation of a promise to appear and undertaking to a peace officer. The promise to appear required his first appearance in court on July 13, 2011. The information was sworn on June 10, 2011. He retained counsel and requested disclosure through his counsel on June 10th, 2011. After three court appearances he set a trial date on August 31, 2011 for a three-day trial to commence May 15, 2012.

[5] On November 28, 2012 a judicial pretrial was held wherein it was agreed that if the Crown was going to advance an application to adduce discreditable conduct evidence at the trial then they were to file that application no later than 30 days prior to the first date scheduled for trial, with the defendant filing a reply no later than 10 days before the trial.

[6] The Crown did not file its materials and application to introduce discreditable conduct evidence until May 7th, 2012 thus giving the defence no opportunity to respond. Accordingly, the discreditable conduct application was adjourned to allow the defence time to file its reply to the application. The trial commenced with the calling of two witnesses not related to the discreditable conduct evidentiary ruling and the last trial days of May 16th and 17th were adjourned.

[7] Continuation dates were set for October 9th, 2012, October 18th, November 28th and December 24th, 2012. The defendant will have waited approximately 18 months and 19 days since he was charged to have his matters adjudicated in this court. Although the Crown opposes the application they do acknowledge that the period of delay warrants examination.

B. THE SECTION 11(b) ANALYTICAL FRAMEWORK

[8] Courts have, since R. v. Morin, [1992] 1 S.C.R. 771, been instructed to apply the section 11(b) principles flexibly, taking into account several required factors. The factors that have to be considered are set out as follows:

1. The length of delay;
2. Waiver of time periods;
3. The reasons for the delay, including:
   • (a) Inherent time requirements of the case,
   • (b) Actions of the accused,
   • (c) Actions of the Crown,
   • (d) Limits on institutional resources, and,
   • (e) Other reasons for delay; and,
4. Prejudice to the accused.

[9] In R. v. Godin, 2009 SCC 26, 2009 S.C.J. No 26, the Supreme Court of Canada revisited and confirmed the R. v. Morin analysis. As stated at paragraph 18:

The legal framework for the appeal was set out by the Court in Morin, at pp. 786-89. Whether delay has been unreasonable 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. This often and inevitably leads to minute examination of particular time periods and a host of factual questions concerning why certain delays occurred. It is important, however, not to lose sight of the forest for the trees while engaging in this detailed analysis. As Sopinka J. noted in Morin, at p. 787, "[t]he general approach ... is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which [s. 11(b)] is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay."

[10] The Court went on to restate, "... that the prolonged exposure to criminal proceedings resulting from the delay gave rise to some prejudice". The Court further stated at paragraph 37 and 38 that:

37 It is difficult to assess the risk of prejudice to the appellant's ability to make full answer and defence, but it is also important to bear in mind that the risk arises from delay to which the appellant made virtually no contribution. Missing from the analysis of the majority of the Court of Appeal, in my respectful view, is an adequate appreciation of the length of the delay in getting this relatively straightforward case to trial. As noted already, prejudice may be inferred from the length of the delay.

38 Moreover, it does not follow from a conclusion that there is an unquantifiable risk of prejudice to the appellant's ability to make full answer and defence that the overall delay in this case was constitutionally reasonable. Proof of actual prejudice to the right to make full answer and defence is not invariably required to establish a s. 11(b) violation. This is only one of three varieties of prejudice, all of which must be considered together with the length of the delay and the explanations for why it occurred.

[11] An 11(b) analysis requires a balancing of two distinct rights: the individual rights of the accused and general societal rights. As Mr. Justice Laskin explained in R. v. Qureshi (2004), 190 C.C.C. (3d) 453 (Ont. C.A.), at paras. 8 and 9:

Section 11(b) aims to protect both the individual rights of the accused and the rights of society. It protects three individual rights: it protects the accused's right to security of the person by minimizing the anxiety and stigma of criminal proceedings; it protects the accused's right to liberty by minimizing the effect of pre-trial custody or restrictive bail conditions; and it protects the accused's right to a fair trial by ensuring that the proceedings occur while evidence is fresh and available. See R. v. Morin, [1992] 1 S.C.R. 771, 71 C.C.C. (3d) 1 (S.C.C.) at p. 12.

Section 11(b) also seeks to protect two societal rights. First, it protects the public's interest in having our laws enforced by having those who break the law tried quickly. Promptly held trials increase public confidence. Second, s. 11(b) seeks to protect the public's interest in having those accused of crime dealt with fairly. See R. v. MacDougall, [1998] 3 S.C.R. 45, 128 C.C.C. (3d) 483 (S.C.C.) at p. 496.

C. APPLYING THE ANALYTICAL FRAMEWORK

1. The length of the delay

[12] The total time from charge to conclusion of trial in this matter will be 18 months and 19 days, a time that warrants scrutiny into the reasonableness of the delay.

2. Waiver of some or all of the time periods

[13] There is nothing in this case that indicates that the defendant was not ready and willing to proceed to trial expeditiously. He retained counsel before the first court appearance and then moved expeditiously to obtain and review disclosure making the request for disclosure through his counsel only four days after his arrest and set a Crown pretrial date wherein an estimate of 3 days of trial time was arrived at by both parties, and then took the first available trial dates that were offered on August 31st, 2011, which were May 15th-17th, 2012. On the August 31st set date Mr. Stunt put on the record that he would have been available to conduct a three-day trial as early as the week of October 24th, 2011.

[14] A judicial pretrial was conducted on November 18th 2011 and the three-day estimate for trial was confirmed on that date together with setting time requirements for the filing of the Crown application to adduce evidence of discreditable conduct and the defence timeframe for a reply.

3. Reasons for the Delay

(a) Inherent time requirements of the case

[15] This is a straightforward case that will be essentially a credibility assessment with no unduly complex legal or Charter arguments filed. The Crown application to adduce evidence of discreditable conduct that essentially took one hour and 20 minutes of argument in total before me, whereas the 11(b) application took up the rest of the judicial day on October 9th 2012.

[16] This matter was scheduled for three clear days of trial on May 15, 16, and 17th of this year. However, the Crown, contrary to the agreement reached at the judicial pretrial did not file materials on the discreditable conduct application until sending the application by fax to Mr. Stunt's office on May 7th, 2012 a mere 8 days before the trial was scheduled to commence.

[17] There is no evidence before me that this trial could not have been completed within the originally scheduled 3 day period, absent the developments that occurred relative to late filing of the Crown application.

[18] On May 15th I commenced the trial and ruled that the Crown would be able to bring the application despite the breach of the 30 day notice agreed to at the judicial pretrial and as mandated by the Rules of the Court, however I also held that the defendant would be entitled to an adjournment of the May 16th and 17th trial dates in order to be given time to prepare and file a response to the Crown materials.

[19] As it was, the Crown was able to call two witnesses on May 15th whose evidence was not related to a ruling on the Crown application and we proceeded to hear that evidence. At the conclusion of the day further dates were canvased for continuation and the remaining trial time was set.

[20] The intake period of this case was done within a reasonable period of time by both parties and, of course, is neutral time in the analysis. This period was from the date of the swearing of the information (June 10, 2011) to the time the parties were able to set the first trial date, which was August 31, 2011 a neutral time period of 2 months and 21 days. Deducting that amount of time from the overall timeframe of 18 months and15 days, we then reduce the total time under scrutiny as institutional delay to a period of 15 months and 3 weeks.

[21] Ms. Kerr suggests that I classify the time to the judicial pretrial as neutral intake time as it was at the judicial pretrial that the Crown seems to have first directed its mind to the issue of whether an application to obtain a ruling to allow introduction of discreditable conduct would be brought and what applicable time periods would apply to the filing of the material for that application. I am disinclined to do so because the judicial pretrial only served to identify and put the defendant on notice of this pending application and set time lines for it. It also served to alert the Crown that Mr. Stunt would oppose such an application and would ask that the court treat the voir dire on the matter as a discrete voir dire, not to be blended with the evidence at trial.

[22] It can be of no surprise that the defence would oppose the introduction of this evidence as it is presumptively inadmissible, and indeed if the Crown had only determined that it needed this type of application some months later, before the trial, they still would have had to comply with the Rules of the Court for service of the application which were the same as that agreed to at the judicial pretrial.

[23] It was not determined at the judicial pretrial that this type of application would add any trial time to what had been agreed would be a three-day trial block. In my analysis the judicial pretrial date is a neutral factor to be considered in that it is a required step in the proceedings, but its effect and benefit did not change the complexion of this case in any way.

[24] In some cases the setting of trial dates on the date that the judicial pretrial date is also set adds efficiency to the process. Issues can be addressed and sometimes issues arising that were not contemplated in the Crown pretrial arises which may add to the length of time required to complete the trial. That was not the case here and the initial trial estimates stood. The defendant obtained no benefit in this case that he would have had without the judicial pretrial, and I trust that the only reason that Mr. Stunt participated in the judicial pretrial was because it was mandatory in this region to require a judicial pretrial for trials scheduled of this length.

[25] To add this period of time to inherent time requirements of the case would penalize an individual who is required to have a judicial pretrial in matters of this length when in effect nothing of consequence flows from the pretrial.

[26] This is a case that would have been obvious from the crown pretrial that it was only going to resolve after a trial on the merits. With experienced counsel for both parties conducting the Crown pretrial it was only a matter of assessing the length of time required for the trial that was accomplished on that date and trial dates were set accordingly.

[27] In R. v. Sychertz [2005] O.J. No. 2722 (Ont. Sup.Ct.) Durno, J, stated the period of institutionally acceptable delay absent a consideration of prejudice is the length set out in Morin, supra, of 8 to 10 months to be applied in Halton. In that case he states at para 56:

First, His Honour erred in applying an 8 - 9 months guideline for acceptable institutional delay, a period suggested by Hill J. in Meisner, supra, a case in the Region of Peel, not a prosecution in the Region of Halton. The guidelines provided by the Supreme Court of Canada apply in all jurisdictions in the absence of an analysis of the particular jurisdiction, and a finding as to the appropriate length of acceptable delay. Indeed, the Supreme Court of Canada adverted to the potential for the Crown to lead evidence of the best comparable jurisdiction in Canada as a comparator to "adjust" the guidelines. There was no such evidence called here, nor did the trial judge engage in any analysis that would permit a deviation from the standard guidelines. Stating that Halton is less urbanized, and has a lower population than Brampton or Toronto, is not an adequate basis upon which to deviate from the Supreme Court of Canada guidelines.

(b) Actions of the Accused

Availability of Counsel

[28] In the case of R. v. Tran 2012 ONCA 18, [2012] O.J. No. 83, the Court of Appeal stated that; "parties should not be deemed automatically to be ready to conduct a hearing as of the date a hearing date is set. Counsel requires time to clear their schedule so they can be available for the hearing as well as time to prepare for the hearing ... and these times are part of the inherent time requirements of the case".

[29] In determining these issues there should be some evidence either at the time the trial date was set, or at the 11(b) hearing, upon which this matter can be ascertained. If not it would appear that the court is free to (as in Tran) substitute its own estimates. In assessing the defence preparation time, obviously the counsel's expertise in dealing with this type of case is a consideration.

[30] When this matter was set for trial on August 31st 2011, Mr. Stunt put on the record that he was available to conduct a three-day trial in this case as early as the week of October 24th, 2011.

[31] I have no doubt that he could have prepared for and commenced a trial in this matter on October 24th if trial time had been available. Mr. Stunt is an experienced capable and well respected defence counsel and as I have indicated earlier in these reasons, that absent the Crown evidentiary application, this matter is, despite the serious nature of the charges, simply a case where credibility assessment will be crucial and the application of the principles found in R. v. W.D. will have to be applied to the evidence.

[32] However, it is clear from the record that Mr. Stunt would have not been able to do this trial until the week of October 24th, 2011 so using the principles to be applied as set out in Tran, supra, I will assign a further period of one month and three weeks to the inherent time requirements of the case, thus reducing the period of institutional delay starting the clock at October 24th 2011. Therefore, the period of institutional delay should be reduced a further seven weeks to a time of 14 months.

[33] The Crown urges me to apportion some of the intervening delay between the adjournment of the first trial date to the final trial date to the defence because Mr. Stunt was offered a total of eight available continuation days that were unavailable to him or his client before the final trial date of December 24th 2012. Mr. Stunt submits that all of the time between May 15th and December 24th, 2012 should be attributed to the Crown or institutional delay.

[34] Once the two concluding days of the trial were nullified by the forced adjournment of May 15 it then became necessary to schedule further continuation dates for the trial. At this time this case was now a priority in that up until May 15th, and deducting the effective start of the institutional delay being the previous October 24th, 2011 the case was well within the Morin guidelines and attracted no delay concern, but once the case was derailed for reasons that are obvious, there became a heightened urgency to accommodate its completion within the system. As such the resources of this judicial district needed to be focused on providing early dates for completion of this trial. Through the efforts of both counsel, they both took the necessary steps to facilitate as early a conclusion of this matter as was possible.

[35] That said, both parties wanted to complete this case in a non-disjointed way that would have allowed the evidence to be heard in consecutive days. While this is laudable, it was not possible. To obtain consecutive days of free trial time a month or two away in this busy jurisdiction is virtually impossible so the defence and the Crown quite reasonably took the dates that were available and offered and did not demand consecutive days as I note was the case in R. v. Allen (1996), 110 C.C.C. (3d) 331 (Ont. C.A.).

[36] As such the parties agreed on May 15th to set the continuation dates that were offered at that time by the trial coordinator, which were the dates of October 9th, and November 28th and December 24th, 2012.

[37] Because the dates that were chosen were clearly problematic from a delay perspective, I suggested that we keep monitoring the trial list and see if any collapses of other trials would free up available trial time which would allow the completion of this trial in a reasonable time. Ms. Kerr agreed to do so and diligently monitored the trial lists and offered several dates to Mr. Stunt for earlier continuation that were not available to him or his client.

[38] Justice Cromwell's commented in R. v. Godin 2009 SCC 26, [2009] 2 S.C.R. 3, (S.C.C.) at paragraph 23:

Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability. Here, there is no suggestion that defence counsel was unreasonable in rejecting the earlier date. Indeed, his prior conduct in seeking earlier dates for the preliminary inquiry - efforts which were ignored - suggests that he wished to proceed expeditiously. I respectfully agree with Glithero R.S.J., dissenting in the Court of Appeal, at para. 53, that: "To hold that the delay clock stops as soon as a single available date is offered to the defence and not accepted, in circumstances where the Crown is responsible for the case having to be rescheduled, is not reasonable."

[39] Although counsel must not wait by the phone to avail themselves of trial time that normally free up in a busy jurisdiction the cooperation of both counsel and the monitoring of the possibility of earlier dates in this case is exemplary.

[40] The transcript of May 15th shows that Ms. Kerr was directing her mind to cases that involved the potential of resolution and freeing up of the necessary trial time in dates in June and July. Mr. Stunt was always open to advancing the trial dates set once they became known and if they fell on a date that was free for he and his client to continue.

[41] Indeed Ms. Kerr did monitor and offer any availability of earlier dates to Mr. Stunt during this entire period.

[42] The email exchanges of May 17th to July 3rd show a concerted effort by the Crown to accommodate an earlier date for the conclusion of this trial by monitoring and offering earlier dates to the defence.

[43] For instance Ms. Kerr sent an email to Mr. Stunt's office on May 17th offering a continuation date for May 24th but that was unavailable to the defence.

[44] On June 22nd, Ms. Kerr offered dates that had become available being October 18, 25, 30th and November 1, 9, 15, 22, and 30th.

[45] On June 28th an email was sent by Ms. Kerr indicating a trial scheduled for July 13, 18, 19 and 20th had folded and these dates were offered to Mr. Stunt but they were not available to the defence. On June 26th an email from Mr. Stunt's office that offered available dates of October 18, 25 and 30th was sent to Ms. Kerr. This is how the October 18th date was obtained.

[46] My calculation is that a total of 12 additional days for the continuation of this trial were offered to the defendant after the May 15th date. It is true that one of the days offered was offered May 17th for a trial date that was only a week away on May 24th and that this date was so close as to make it difficult for the defence to file a comprehensive reply to the Crown's evidentiary application. There were however a further four days offered for the latter half of July but these were only offered on June 28th and were unavailable to the defence.

[47] Mr. Stunt's office had it appears only offered three dates for continuation, those of October 18, 25 and 30th. He does state however and it is acknowledged by the Crown that he would have had many more dates for continuation in June, July, August, September, October and November.

[48] The October 25th date that was originally offered in the email from Ms. Kerr dated June 22nd seems to have become unavailable between the offered date of June 22nd and the date that Mr. Stunt's office said that would be an acceptable date which was June 26th because the October 25th date was not chosen for reasons that remain unclear to me.

[49] Taking into account that again we must recognize that Mr. Stunt would have required a further couple of weeks to be able to prepare and serve and file his response to the Crown Application, together with the fact that I was unavailable for three weeks in June, as I was out of the country for most of that month, the time that should be ascribed to inherent delay resulting from the rescheduling of this trial should commence to run two weeks from the May 15th date, reducing the institutional delay to a period of 13 ½ months.

[50] Despite the very active efforts of the Crown to monitor the evolving trial lists and to offer a further 12 days of potential trial time the last date in this matter was not able to be set to run until December 24th 2012.

[51] Due to the number of dates offered to the defence while keeping in mind that some were offered on short notice, I am prepared to assign a further six week period of this interval to neutral time as a result of the inherent time requirements of rescheduling a trial time in the is matter. There comes a point when defence unavailability can stop the delay clock from running when sufficient alternate dates are offered by the Crown that are not available to the defence. That date for me would be around the middle of November, and that is how I have arrived at the further six weeks of classification of neutral time in this analysis.

[52] The end result of that is that I have attributed a period of institutional delay to this case until its anticipated conclusion on December 24th, 2012 as being a total of 12 months.

(c) Actions of the Crown

[53] As stated by Sopinka, J. in Morin, supra, assessing the actions of both the Crown and the defence resulting in delay does not serve to assign blame. He stated in paragraph 46 as follows:

As with the conduct of the accused, this factor does not serve to assign blame. This factor simply serves as a means whereby actions of the Crown which delay the trial may be investigated. Such actions include adjournments requested by the Crown, failure or delay in disclosure, change of venue motions, etc. An example of action of this type is provided in Smith, supra, where adjournments were sought due to the wish of the Crown to have a particular investigating officer attend the trial. As I stated in that case, there is nothing wrong with the Crown seeking such adjournments but such delays cannot be relied upon by the Crown to explain away delay that is otherwise unreasonable.

[54] The Crown in this case was unable to attend to the preparation of the evidentiary motion in time to comply with the timeframes agreed to at the judicial pretrial. This necessitated the adjournment of the May 15th and 16th dates and ultimately delayed the ultimate conclusion date of this trial for a period of almost seven and one half months. Ms. Kerr gave a reasonable explanation for her inability to comply with the deadlines, essentially the unexpected absence of some assistant Crowns in her office for personal reasons involving the illness or death of close family members. As well the file was not assigned early enough which was an administrative error on behalf of the Crown.

[55] That said, those actions that contributed to this delay, while entirely understandable, as Sopinka J. stated above "cannot be relied upon by the Crown to explain away delay that is otherwise unreasonable".

(d) Limits on Institutional Resources

[56] It is concerning to note that the limits on institutional resources in the Crown's office contributed to the delay in this proceeding.

[57] As Ms. Kerr stated at page 71 of the May 15th transcript in her submissions:

My office through February, March and April, has been blind-sided by some significant health problems attaching to immediate parents of people in the office. We've regretfully had two individuals whose parents were admitted into hospital and subsequently died. And we have had a third member of the office who's husband has gone from a condition that was concerning to serious, to now life threatening. The effect of these three individuals coping with the various personal tragedies in their own lives, has meant that the scheduling has been on a triage basis. The file was not assigned early, as requested. And when the file was assigned, and it was assigned obviously to myself, I immediately feared there would be some difficulty about complying with the time lines. The situation, frankly, got only worse because the one member of our office whose husband has been taken very ill, things occur on quite literally a day by day basis, and it has meant that – and I don't say this for a pity party – but it has meant that I have had absolutely no prep days in the last six weeks, not one. Sorry, last Thursday I had a prep day. It has meant that Crowns are covering courts five days a week or have assignments five days a week. And in my case then that means that I am working six and seven days a week in an effort just to keep up with the demands of appearing in court on a regular basis.

[58] Ms. Kerr who is known to this court to be an extremely hard working and capable Crown herself could not meet a deadline because of the limited resources available in her office to cope with unexpected personal issues of colleagues in her office.

[59] Clearly the strains on the resources that have long existed in this Region have extended to the Crown's office itself.

[60] I need not restate the concerns that I have, related to the chronic underfunding of judicial resources in our region as I have most recently summarized those in R. v. Papandrea 2012 ONCJ 651, [2012] O.J. No. 4880 at para's 32 to 49 released only a few days ago. Those same concerns apply in this case.

(e) Other reasons for delay

[61] I heard the arguments on the 11(b) motion and the Crown's evidentiary motion on October 9th and submissions lasted the entire day. Because of other commitments and not feeling well I was unable to have this decision released until October 22, thus squandering one day of trial, being October 18th. The next day for trial will be November 28th and the parties still hope to have the matter completed by December 24th, but that may have to be reassessed on November 28th.

4. Prejudice to the applicant

[62] At para 76 of Morin, the Supreme Court suggested a delay in the range of 8 to 10 months is tolerable in the Provincial Courts. The court states:

Based on the above factors, I would allow a period for systemic delay which is in the upper range of the guideline. In my view, a period in the order of 10 months would not be unreasonable. While I have suggested that a guideline of 8 to 10 months be used by courts to assess institutional delay in Provincial Courts, deviations of several months in either direction can be justified by the presence or absence of prejudice.

[63] Of course, these guidelines are just that, guidelines and are not to be taken as limitation periods. However in a case involving a period of systemic delay that is outside of the upper guidelines, the analysis as to whether the accused has suffered any actual prejudice is an important factor.

[64] In R. v. Godin, supra, Justice Cromwell writing for the court states at para 30 that:

30 Prejudice in this context is concerned with the three interests of the accused that s. 11(b) protects: liberty, as regards to pre-trial custody or bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge; and the right to make full answer and defence, insofar as delay can prejudice the ability of the defendant to lead evidence, cross-examine witnesses, or otherwise to raise a defence. See Morin, at pp. 801-3.

[65] T.R.T. filed an affidavit in this application and the Crown chose to cross-examine him on it.

[66] T.R.T. has two children, H. who is 17 years old and M. who is 16 years old and is the complainant in this matter. He has been separated from their mother L.T. for several years and is still involved in acrimonious matrimonial proceedings with her.

[67] He stated in his evidence that although there was court order for custody and access in practice both of his daughters saw him on a frequent basis and stayed at his house approximately 70 percent of the time. The family court proceedings are on hold until the conclusion of the criminal charges.

[68] He states in his affidavit that prior to his arrest he enjoyed a very loving and healthy relationship with both of his daughters but has been precluded from contact with both of them and is suffering considerable loss of companionship and experiencing a lot of sadness as a result of my inability to communicate with them directly.

[69] However in cross-examination he admitted that his daughter M., the complainant in this matter refused to stay overnight at his house for three months prior to his arrest, although he still had regular contact with him.

[70] He, as well, admitted that despite the impression given in his affidavit that he was suffering from a imposed ban on communication with his daughters, the Crown and his counsel over several months of correspondence had arranged to vary the terms of his release to allow contact with his daughter H. by telephone or other electronic means such as email or text as initiated by his daughter, or as supervised by an agreed upon third party. This was agreed to and effective November 28, 2011. He presently resides in a home with his girlfriend and her seven year old daughter.

[71] As well, while precluded from residing at his home initially, this condition was dropped with the consent of the Crown on June 20, 2011.

[72] In re-examination, T.R.T testified that since that condition has been varied relative to his daughter H., he has seen her three times since May 2012 while supervised by an agreed party, and that she has called him twice and texted him on occasion. He has of course been unable to communicate in any way with his daughter M.

[73] This appears to be in sharp contrast to the frequent contact that he had with his daughters prior to the charges, but I find that this in large part flows from the fact of being charged, rather than being attributable to the delay occasioned so far in this prosecution. I also find it telling that his daughter H. has decreased contact significantly with her father even though allowed contact pursuant to the agreed variation of the terms of release.

[74] Having a parent charged with this type of offence wreaks havoc in families, and sometimes leaves lasting fissures in relationships that are impossible to repair whatever the outcome of the charges. This may be what drives the reduced contact with T.R.T.'s daughter H., and would be a product of the charges being laid, rather than the delay in having the matter proceed to trial.

[75] While I have no doubt that in my mind T.R.T. feels anguished at the separation from his daughters, I can only assign it a minimum level of actual prejudice because of the factors I have just alluded to.

[76] Similarly while recognizing that some financial prejudice has been occasioned to T.R.T as a result of the adjournment necessitated by the late notice, I found that T.R.T.'s evidence on this issue was imprecise and vague. On cross-examination he was unsure of the details of his retainer arraignment with Mr. Stunt and the evidence that he gave on this topic appeared quite muddled to me.

[77] I agree with Ms. Kerr's submission that the financial pressure of having to retain counsel to defend charges in what will be a multiday trial is what is creating the most distress for T.R.T., more so than being able to quantify an amount of money lost or thrown away caused by the actions of the Crown.

[78] There is prejudice that the court can infer from the mere length of the delay. As Sopinka J. stated in R. v. Morin (supra) at para. 61:

"The longer the delay the more likely that such an inference will be drawn."

[79] In R. v. Kovacs-Tatar (supra), the Court at para. 33 referred to R. v. Silveira, [1998] O.J. No. 1622, 35 M.V.R. (3d) 30 (Gen. Div.), where Hill J. clarified at para. 53, that:

"[t]he shame of disclosure to family, the expense of defending criminal charges, and the like, arise from the laying of the criminal charge itself and not from delay to trial". He accepted, however, that the delay to trial beyond the guidelines prolongs an accused's shame and increases his or her anxiety. Thus, what was initially prejudice from being charged may become prejudice caused by institutional delay due to a delay beyond the guidelines."

[80] In my view, the time to complete this matter has resulted in some actual prejudice, both financial and emotional to the applicant as well as inferred prejudice, however I can not classify it as particularly great on the evidence before me.

(f) Balancing the Societal Interest in a Trial on the Merits

[81] As Sopinka, J. observed in Morin, supra:

29 The secondary societal interest is most obvious when it parallels that of the accused. Society as a whole has an interest in seeing that the least fortunate of its citizens who are accused of crimes are treated humanely and fairly. In this respect trials held promptly enjoy the confidence of the public. As observed by Martin J.A. in R. v. Beason (1983), 36 C.R. (3d) 73 (Ont. C.A.): "Trials held within a reasonable time have an intrinsic value. The constitutional guarantee enures to the benefit of society as a whole and, indeed, to the ultimate benefit of the accused..." (p. 96). In some cases, however, the accused has no interest in an early trial and society's interest will not parallel that of the accused.

30 There is, as well, a societal interest that is by its very nature adverse to the interests of the accused. In Conway, a majority of this Court recognized that the interests of the accused must be balanced by the interests of society in law enforcement. This theme was picked up in Askov in the reasons of Cory J. who referred to "a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law" (pp. 1219-20). As the seriousness of the offence increases so does the societal demand that the accused be brought to trial. The role of this interest is most evident and its influence most apparent when it is sought to absolve persons accused of serious crimes simply to clean up the docket.

[82] In the judicial balancing of the interests engaged in an 11(b) analysis the Ontario Court of Appeal gave helpful guidance in R. v. Kovacs-Tatar, [2004] O.J. No. 4756. There the accused was a chiropractor charged with sexual assault on a female patient. The Court in that case said in paras 57-60 the following:

57 Section 11(b) is framed in terms of reasonableness. As noted, the courts have refrained from creating limitation periods within which certain types of cases must be tried lest the judicial guillotine descend in the form of a stay of proceedings. This inevitably requires the trial court to exercise judgment, having regard to the factors enumerated in Morin. In Morin at p. 13, Sopinka J. described the exercise in these terms:

The general approach to a determination as to whether the right has been denied is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay. As I noted in Smith, supra [R. v. Smith (1989), 52 C.C.C. (3d) 97], "[i]t is axiomatic that some delay is inevitable. The question is, at what point does the delay become unreasonable?" (p. 105).

58 The interests involved do not just include the accused's liberty and security interests and his or her interest in a fair trial. There are societal interests in ensuring that an accused is tried within a reasonable time, to minimize the prejudice to accused and ensure they are treated humanely and fairly (Morin at p. 12). But, there is also a societal interest in ensuring that accused are tried on their merits. As Sopinka J. said at p. 13 of Morin, "As the seriousness of the offence increases so does the societal demand that the accused be brought to trial."

59 In this case, we have sixteen months delay from the date of the charge to the target trial date. To quote Sopinka J. in Morin at p. 25, such a period "can hardly be described as a model of dispatch" but like the 14 1/2 months in Morin may be excused in suitable circumstances. Of the sixteen months, four months is neutral being properly considered part of the inherent time requirements. During that time, the appellant had several opportunities to speed up the proceedings but either sought to prolong them or took no action in the face of a Crown request for earlier action.

60 The institutional delay of twelve months exceeded, but just barely, the eight to ten month guideline set out in Morin.

[83] In T.R.T.'s case I have determined as best as I can an institutional delay of 12 months, which exceeds but just barely the eight to ten month guideline set out in Morin and is on par with the delay seen in Kovacs-Tatar, supra. As in Kovacs-Tatar, this case involves allegations of sexual assault involving a breach of trust. The societal interest in seeing this matter conclude after a trial on the merits is high.

D. CONCLUSION

[84] I have found the institutional delay in this case to be 12 months. This time to trial is outside the guidelines set in R. v. Morin.

[85] I have found that the defendant has suffered actual financial and emotional prejudice but I cannot describe the prejudice that I have found to be as any more than minimal.

[86] I am mindful of society's right to have cases such as these decided on their merits.

[87] Balancing all of the above, I find that the applicant has failed to show on a balance of probabilities that his right to trial within a reasonable time has been infringed.

[88] The application for a stay of proceedings is dismissed.

Released: October 22, 2012

Signed: "Justice Stephen D. Brown"