WARNING

The Court hearing this matter directs that the following notice 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Ontario Court of Justice

Date: 2014-05-02

Court File No.: London 11-5052; 11-Y1524

Between:

Her Majesty the Queen

— AND —

Adam Chartrand

Before: Justice A. Thomas McKay

Heard on: April 7, 2014

Reasons for Judgment released on: May 2, 2014

Counsel:

• David Rows, counsel for the Crown
• Glen Donald, counsel for the accused Adam Chartrand

MCKAY J.:

ISSUE

[1] The accused faces five charges under the Criminal Code of Canada, and two additional charges under the Youth Criminal Justice Act. All charges were laid on January 9, 2011. They are historical in nature. The Youth Criminal Justice Act charges relate to allegations during the period of September 1995 to May 1996. The charges include common assault and assault with a weapon. The Criminal Code charges relate to allegations during the period from September 1996 to March 1999. They include two charges of common assault, two charges of unlawful confinement, and one charge of sexual assault with a weapon, specifically a knife. Obviously, they are serious charges. They are set to be dealt with by way of the trial Court on April 15, 16 and 17, 2014.

[2] The obvious question relates to why charges, which were laid in January 2011, would languish for approximately 39 months before reaching trial. Not surprisingly, there is an application before the Court for a stay of proceedings as a result of a violation of the accused's right under section 11(b) of the Charter of Rights to be tried within a reasonable time. This decision relates to that application.

BACKGROUND

[3] I will outline very briefly the course of this prosecution. The various time frames will be discussed in more detail at a later point. Generally speaking, there was a lengthy intake period from January 9, 2011 to October 13, 2011 in which disclosure was provided and resolution meetings were held. That timeframe also involved the Crown obtaining input from the complainant. On October 13, 2011, the matter was adjourned to April 2, 2012 for preliminary inquiry. In late March, the preliminary inquiry was rescheduled to June 29, 2012 at the request the Crown. The Crown attorney with carriage of the file was double booked in Court and committed to a trial continuation on the date originally set for the preliminary inquiry. On June 29, 2012, the preliminary inquiry was held and the accused was committed to stand trial in Superior Court.

[4] On December 5, 2012 in the Superior Court, the accused re-elected, with the consent of the Crown, requesting a trial in this Court. On January 9, 2013, the matter was set for a two day trial July 22 and 23, 2013. In February 2013, because of a scheduling issue, the trial was rescheduled to July 30 and 31, 2013. On the first day that this matter was set for trial, other matters were scheduled in the Court and the trial of this matter could not begin until those matters were completed. As a result, the trial of this matter was not completed within the two days set, and the matter was adjourned to October 10, 2013 to complete the trial. In early August 2013, while dealing with an unrelated matter, the trial judge made certain comments regarding this matter to Crown counsel. That ultimately led to the trial judge declaring a mistrial in this matter on October 10, 2013. On October 22, 2013, this matter was set for trial on April 15, 16 and 17, 2014.

[5] I will note at the outset that these are serious charges. However, they are relatively straightforward charges of the type which are frequently dealt with in this Court. Due to the historical nature of the charges, most of the evidence will be the evidence of the complainant. The Crown suggests that there were certain complexities including the fact that there was a second information containing youth charges, thereby complicating the procedure. I find that any procedural issues are relatively simple to resolve and did not increase the complexity of case. In addition, the Crown notes that there was an issue regarding third-party records, which has been resolved. Again, there is nothing particularly unusual about that issue and it did not significantly complicate this case. At its heart, this remains a relatively simple straightforward case which revolves around the evidence of one person, the complainant, and if he chooses to testify, a second person, the accused.

THE ANALYTICAL FRAMEWORK FOR SECTION 11(b) MOTIONS

[6] Appellate case law makes it clear that motions of this type require the Court to analyze four distinct factors: the overall length of delay from the laying of charges until trial concludes; waiver of any individual time periods; the reasons for the various periods of delay; and prejudice to the particular interests of the accused protected by section 11(b). After making a finding of each of these factors, the final balancing stage of the analysis requires consideration of the societal interest in a trial on the merits.

[7] The first factor, the overall length of delay, is simply a triggering mechanism or threshold determination of the excessiveness of the delay. The remaining three factors only need to be considered if the overall period of delay is sufficient in length to raise an issue as to its reasonableness.

[8] The second factor relates to any waiver by the accused of any of the time frames related to delay. The waiver can be expressed or implied, but it must be clear and unequivocal and made with full knowledge of the rights the procedure was enacted to protect. Waiver can be implied from consent to a period of delay where a choice has been made between available options and the actions of the accused amounted to an agreement to the delay rather than mere acquiescence in the inevitable. If a waiver has been found, the period of time which it relates to is simply removed from the section 11(b) analysis and the overall delay is effectively shortened.

[9] The third factor relates to the reasons for delay. It does not involve findings of fault, as there are periods of delay which take place for good or necessary reasons. However, this factor requires an objective analysis of each period of delay in order to determine its cause. The five traditional causes of delay are: the inherent time requirements of the case; any actions of the defence; any actions of the Crown; limits on institutional resources; and other miscellaneous causes such as judicial delays. Once the cause of each period of delay has been objectively determined based upon the evidence, the Court then assigns a weight to that period. Delays can be said to weigh against the defence, the Crown, or be neutral. Delays caused by the Crown or by inadequate resources cannot be used to explain delay which is otherwise unreasonable.

[10] The fourth factor relates to prejudice to those interests of the accused which section 11(b) is designed to protect. Specifically, those interests relate to liberty, security of the person, and a fair trial. Prejudice to one or more of those interests may be inferred, without extrinsic evidence, from a very long and unreasonable delay. In other cases where the period of unjustified delay is closer to what might be justifiable, the accused may lead evidence of actual prejudice to one or more of his or her protected interests.

[11] When the four factors have been assessed, the Court should arrive at a period of unjustified or unreasonable delay which weighs against the Crown. The Court should also assess the strength or weakness of the claim to prejudice, as section 11(b) only protects against unreasonable periods of delay which cause prejudice. The Court then balances those factors against the societal interest in a trial on the merits.

THE THRESHOLD QUESTION

[12] In this case, a delay of nearly 40 months between date that the charges were laid and the trial date is sufficiently lengthy to trigger an inquiry into the factors related to the delay.

ANALYSIS OF PERIODS OF DELAY

[13] Counsel have outlined their positions regarding the various time periods of delay. In a number of situations they are in agreement. The Court is not bound by any characterization made by counsel even if counsel agree to a particular characterization. It is the responsibility of the Court to conduct its own analysis. In R. v. Morin, [1992] 1 S.C.R. 771, the Supreme Court established guidelines for institutional delay. Those guidelines have been referred to in additional decisions, including R. v. Godin 2009 SCC 26, [2009] 2 S.C.R. 3. The guideline refers to a period of eight to ten months for institutional delay in provincial Courts, and an additional six to eight months from committal to trial in Superior Court, for a total guideline period of between 14 and 18 months in matters involving two stages.

Intake Period: January 10, 2011 to October 13, 2011

[14] I turn first to the period from the laying of the charges on January 9, 2011, to October 13, 2011, which is the date that counsel set a date for a preliminary inquiry into the adult charges. This involved a period of approximately nine months. The defence and the Crown both characterize seven months of this period as being inherent delay related to the case. The defence takes the position that the remaining two months of this period should be characterized as Crown delay, as they relate to the time frame in which the Crown wanted adjournments in order to seek input from the complainant regarding the resolution discussions which were ongoing. The Crown characterizes this two-month period as either waiver on the part of the accused, or inherent delay.

[15] I note that in the Ontario Court of Justice in London, there is a protocol in place for the intake of criminal charges. The protocol provides that individuals with new criminal charges appear before a Justice of the Peace in a Court entitled "A Court". The purpose of that Court is to deal with initial aspects related to the charge such as arraignment, the facilitation of individuals retaining counsel if that is their intention, and obtaining disclosure. When those goals have been met, the matter is either set for trial, a preliminary inquiry, or for plea. The protocol provides that new charges are to remain in "A Court" for a maximum of 90 days from the first appearance. If a matter has been in "A Court" for 90 days without being set for preliminary, trial or plea, the protocol provides that the matter is traversed from "A Court" into the plea Court so that a judge can begin to exercise a trial management function. The purpose of that protocol is to ensure that a judge is monitoring timelines in order to avoid section 11(b) issues from arising. Despite that protocol, this matter remained in "A Court" from January 10, 2011 to October 5, 2011, a period of approximately 9 months. That is too long an intake period for a case of this nature. Had the matter been traversed into a plea Court in accordance with the protocol for a trial management judge to be assigned, the matter might have evolved differently.

[16] In any event, as indicated, counsel have submitted that seven months of this period should be considered inherent delay. Given that position, I will not take a contrary point of view, despite the fact that there was a glaring failure on the part of both the Crown and the Court to ensure that the 90 day protocol was complied with. However, counsel do have different positions regarding the two-month period in which the Crown sought input from the complainant. Given the lengthy period of time during which resolution discussions were ongoing, one might have thought that the Crown might have had ample opportunity to have discussions with the complainant without requiring additional delays. However, that did not happen and on May 4, 2011, the matter was adjourned to June 1, 2011 to facilitate the Crown discussing possible resolution with the complainant. Defence counsel had an agent attend and consent to the adjournment. On that basis, given the willingness of the accused to let resolution discussions fully play out, I find that the accused waived the delay from May 4, 2011 to June 1, 2011.

[17] On June 1, 2011, the matter was adjourned again to June 29, 2011 "for complainant input". I find that there was no true waiver of this time frame on the part of the accused. Given the length of time which had passed, the Crown should have had ample opportunity to have any discussions which the Crown wanted to have with the complainant. While the agent for defence counsel did not specifically object to the second adjournment, I find that there was no informed waiver on the part of the accused and that the accused acquiesced to the inevitable adjournment. This period of approximately one month of delay is attributable to the Crown.

Preliminary inquiry - October 13, 2011 to April 2, 2012

[18] The second time frame to be considered is the period from October 13, 2011 when the date was set for a preliminary inquiry, to April 2, 2012, which was the date set for the preliminary inquiry. Counsel readily acknowledge that there are portions of the record related to this matter which are not complete. Transcripts often contain some ambiguity regarding how and why dates were set. One reason for that is the fact that often agents appeared in Court for defence counsel. Another reason is the fact that in London, trial dates are set not before a judge, but rather before a trial coordinator. The material on this application, in a number of instances, does not have a record of what was said before the trial coordinator. In addition, at times dates are arranged by counsel attending at the trial coordinator's office for discussions. Again, there is no record filed with respect to those discussions. Accordingly, it is difficult at times for the Court to precisely determine how dates were arrived at. In that context, I am mindful of the indication by the Ontario Court of Appeal in R. v. W.(A.J) 2009 ONCA 661, [2009] O.J. No. 3814, that the state has the evidentiary burden of establishing the date on which the system is able to accommodate a trial. The Court also indicated that any delay after that date caused by unavailability of defence counsel for perfectly valid reasons is neutral.

[19] The delay from October 13, 2011 to April 2, 2012 involved approximately five and a half months. The Crown invited the Court to allocate half of that time as inherent delay, and half as institutional delay. Given the fact that the Court was being asked, nine months after first appearance, to set a date for a preliminary inquiry, the Court should have been mindful of the timelines involved and given priority to this matter. It is noteworthy that the time required for the preliminary inquiry, approximately three to four hours, was not substantial. Given the lengthy intake period and the relatively brief nature of the preliminary inquiry, there was a need to prioritize this preliminary inquiry. During this time frame, I allocate two months of the delay to inherent time frames, and three and a half months of the delay to institutional delay.

Adjournment of preliminary inquiry: April 2, 2012 to June 29, 2012

[20] The next period of time involves the period from April 2, 2012 to June 29, 2012, and is not controversial. In March 2012, the Crown became aware that the Crown Attorney with carriage of the file was effectively double booked in two Courts on April 2, 2012 due to a trial continuation. Accordingly, in late March the Crown brought application for adjournment of the preliminary inquiry date. As a result, the preliminary inquiry was rescheduled to June 29, 2012. The parties agree that the resultant three-month delay is attributable to the Crown.

Re-election: June 29, 2012 to December 5, 2012

[21] On June 29, 2012, the accused was committed to stand trial in the Superior Court on the adult criminal charges. A period of slightly more than five months passed until the accused completed a re-election and returned to this Court to set a trial date on December 5, 2012. The Crown takes the position that that entire time period is an inherent delay related to the nature of the case. In analyzing that delay, I note that on September 11, 2012, an agent for defence counsel appeared in Superior Court to give notice of re-election by the accused with the consent of Crown. However, the accused was not present, and accordingly the Court would not allow the re-election. The Court indicated that the accused would need to be present, and offered to have him appear on September 24, 2012, for that purpose, if the matter was urgent. Before counsel had an opportunity to respond, the trial coordinator indicated that the September 24 date was "getting full". Without counsel having the opportunity to address any issue of urgency, the Court then adjourned the matter to October 16, 2012 to allow the re-election to take place. That caused a delay of 22 days, or three quarters of one month. Again, given the fact that the matter had been before the Court for 21 months at that point, both the Court and the Crown should have been alive to the issue of delay and should have facilitated the earlier date. Therefore, the period of three quarters of one month from September 24 to October 16 is attributable to institutional delay.

[22] October 16, 2012, defence counsel appeared before the Superior Court and indicated that he was trying to set the matter down and move ahead. In response, the Court set a date for a pretrial, and set the matter to November 20, 2012 to set a date for trial. On November 20, 2012, the accused appeared and re-elected trial in this Court. Accordingly, any delay from October 16, 2012 to November 20, 2012 came as a result of waiver on the part of the accused. The delay from November 20 to December 5 was inherent delay.

First trial date: December 5, 2012 to July 30, 2013

[23] The next period of time to be examined is the period from December 5, 2012, when the accused first reappeared in this Court in order to set a trial date, and July 30, 2013, which was the first of two days set for trial. That is a period of approximately eight months. Counsel again noted the lack of a clear record as to exactly what dates were suggested and when counsel was available. The Crown suggested that the Court allocate four months of that period as inherent delay, and four months as institutional delay.

[24] I will comment as to some portions of that time frame. On December 5, 2012, an agent appeared for defence counsel in "A Court". The record is not clear because there is no record of his discussions with the trial coordinator regarding setting a date for trial. However, the transcript suggests that when he tried to set a date for trial, he was informed that a pretrial conference would be needed. The matter was adjourned to December 19, 2012 to set a date for pretrial. At that point, it appears that neither the Crown nor the Court were alive at all to the issue of delay, notwithstanding that the matter had been before the Court for more than 23 months. Again, the matter was not traversed before a judge for case management.

[25] On December 19, 2012, an agent appeared for defence counsel in "A Court". The transcript seems to suggest that a pretrial conference took place on December 13, 2012. The transcript suggests that the dates provided by defence counsel for trial were not suitable. The agent for counsel for the defence suggested holding the matter down. I infer that he wanted the matter held down to attempt to obtain additional dates to provide to the Court that day. The agent indicated that he was not available the following week as he was on vacation. The Court then suggested a two week adjournment and the agent responded by saying that he was available in two weeks. Again, neither the Crown nor the Court gave any indication of being alive to the issue of delay despite the fact that the matter had been before the Court for approximately 23 months. Again the matter was not traversed to a judge for case management. The matter was adjourned to January 2, 2013 to set a date. Given the length of time that the matter had been before the Court, and the suggestion from the agent for defence counsel that the matter could be held down, the Court should have done everything possible to attempt to set a date without further delay. The delay of one half month from December 19, 2012 to January 2, 2013 is attributed to institutional delay.

[26] Again, the state has the evidentiary burden of establishing the date on which the system was available to accommodate this trial. There would no doubt have been some inherent delay caused by the need for counsel to clear their schedule and prepare for trial. However, given the fact that the trial date was being set on January 9, 2013, both the Crown and the Court should have been alive to the issue of delay and should been examining the soonest possible date. All that the record discloses is that the matter was set for a two day trial approximately seven months later. Of the eight month time frame from December 5, 2012 to July 30, 2013, I attribute two and a half months to inherent delay, and five and a half months to institutional delay.

Trial continuation/mistrial: July 31, 2013 to October 10, 2013

[27] As indicated, the matter was set for a two day trial on July 30 and 31, 2013. Because of the fact that other matters were scheduled before the Court on July 30, 2013, the trial was not commenced until those matters were completed. The result was that there was insufficient time on July 30 and 31st to complete the trial. The matter was therefore set to October 10, 2013 for continuation in order to complete the trial, a delay of approximately two and a half months. The fact that the trial was not completed on July 31, 2013 can be attributed to overscheduling and a lack of resources in this Court and is therefore institutional delay.

[28] A further complication arose prior to the October 10, 2013 trial continuation dates. In August 2013, the trial judge was involved in an unrelated proceeding with the trial Crown. The trial judge made certain comments regarding this matter. After reflecting on those comments, Crown counsel felt an obligation to report the comments to defence counsel in this matter, and did so on the same day. Defence counsel took time to consider the matter and obtain instructions from his client. On September 26, 2013, defence counsel advised the Crown by correspondence that his client took the position the remarks of the trial judge could be interpreted in a way which could appear to impact the fairness of trial. Accordingly, he took the position that the trial judge could not continue with the trial. Counsel subsequently met with the trial judge, who advised them that in view of all of the circumstances the Court would declare a mistrial on the October 10, 2013 return date. The mistrial was declared, and the matter adjourned to October 22, 2013 to set a new date for trial. Defence counsel advised by letter that the first date which he was available in 2014 was April 10. The matter was set for a three day trial commencing April 15, and ending April 17, 2014.

[29] The Crown suggests that, had the defence immediately made a decision that a mistrial was appropriate, the matter would not have waited until October 10, 2013 for the mistrial to be declared and the matter adjourned to a new date set another trial date. There is a significant body of case law dealing with the issue of rescheduling a trial that has not commenced or has not been completed on the scheduled trial date. Those types of cases must be given priority in the system and delays resulting from rescheduling the trial date will generally be treated as institutional, or as part of the inherent time requirements, or a combination of both, depending on the circumstances. (See R. v. Lahiry 2011 ONSC 6780, [2011] O.J. No. 5071).

[30] The Crown takes position that of the two and a half month period from July 31, 2013 to October 10, 2013, one and a half months should be attributed to the defence, while the remaining one month should be allocated as inherent to the time requirements of the case. I disagree. Originally, the two and a half month delay from July 31 to October 10, 2013 came about as a result of the trial not been completed because of overscheduling and lack of resources in this Court. That was complicated by the inadvertent comments of the trial judge which ultimately resulted in the mistrial. It was reasonable for the defence to take time to consider an unusual situation before determining a course of action. There is nothing inherent to the case which caused that issue to arise. Accordingly, I attribute the entire two and a half month period to institutional/other delay.

New trial date: October 10, 2013 to April 17, 2014

[31] The final time frame to be considered is the period from October 10, 2013, to April 17, 2014, which is the date when the trial is now scheduled to be completed. That is a period of approximately six and a quarter months. The Crown submits that one month of that time frame should be considered inherent delay, with the remaining period of time considered other/institutional delay. The defence takes the position that the mistrial and resulting delay has nothing to do with the actions of his client, and accordingly the entire time frame should be considered as other/institutional delay. I am mindful of the fact that the first available date in 2014 for defence counsel was April 10, 2014. However, I am also mindful of the fact that defence counsel is not required to being a perpetual state of readiness for trial in each individual case. The delay of six and a quarter months for trial after the mistrial was declared is an unusual situation arising out of the mistrial, which can in no way be attributed to the accused. Accordingly, I attribute the entire six and a quarter months delay in this timeframe to other/institutional issues.

Time to be attributed as unreasonable delay

[32] In reviewing the allocation of the various periods of delay, I conclude that 21.75 months of delay in this matter are attributed to the Crown/other/institutional delay, and can be considered unreasonable delay. That period of time is outside of the guideline of 14 to 18 months of institutional delay in a two-step process established in R. v. Morin.

PREJUDICE

[33] Section 11(b) is aimed at protecting liberty, security of person and a fair trial. The right to trial within a reasonable time protects a number of important rights. First and foremost, it protects the right to a fair trial. The sooner after an alleged event takes place that a trial is held, the more accurate the evidence tendered to the Court tends to be. Delays in reaching trial impact an accused person's liberty and security of the person. The stigma of outstanding criminal charges which are not resolved in a timely fashion, restrictive bail conditions and the financial costs of delay are some examples of the impact of delay on an accused person.

[34] This case involved a very long and unreasonable delay. Given the length of the delay, in my view prejudice to one or more of the accused's 11(b) interests can be inferred without extrinsic evidence. If I am wrong about that, I note that the defence did lead evidence related to prejudice.

[35] In this situation, the impact of delay on the memories of witnesses is not significant, given the fact that these are historical allegations. However, the fairness of the trial is affected by the continued financial burden on the accused in what was from the start an uneven battle of resources. The resulting costs which flow from the delays involved puts the accused at even more of a disadvantage.

[36] There is evidence that the delay and the resulting prolonged exposure to criminal proceedings impacted the accused's health, employment opportunities, financial affairs and lifestyle. The Crown effectively cross-examined the accused to show that some of the impacts on his life arose from the fact of the charges being laid, rather than the delay in disposition of the charges. However, I am satisfied that there has been some impact with respect to the accused's financial situation, health and lifestyle that arises from the delay in disposing of the charges, which results in prejudice to his section 11(b) protected rights.

[37] I will also comment briefly on the accused's approach in this matter. I find that his conduct demonstrated a desire to resolve the matter in a timely fashion. The decision to re-elect and have a trial in this Court arose from a desire to obtain a trial date earlier than what was expected to be the date for trial in the Superior Court. That demonstrates the accused's interest in obtaining an early trial date.

[38] The issue regarding third-party records also illustrates a willingness and desire to have this matter resolved in a timely fashion. The defence became aware of the third-party records as a result of the testimony of the complainant at the preliminary inquiry. After some discussion between the defence and the Crown, the Crown sought and obtained the consent of the complainant to release the third-party records and communicated that to the defence on August 19, 2012. There were a number of steps which needed to be taken in order to obtain and provide the records to the defence.

[39] The Crown Attorney with carriage of the file was on parental leave from July 2, 2012 to October 28, 2012. Unfortunately, during that absence, apparently no one in the Crown's office took the necessary steps to facilitate providing the records to the defence. As a result, the third-party records were provided to the defence in stages, beginning June 28, 2013, and ending July 26, 2013, four days before the scheduled trial date. I note that the defence had made further requests for the third-party records in September, October, November and December of 2012, and in February and April of 2013. In spite of the fact that the last of the material was only provided four days prior to trial, the defence did not request an adjournment and proceeded with the trial. That is additional evidence of the defence desire to have this matter dealt with in a timely fashion.

SOCIETAL INTEREST IN A TRIAL ON THE MERITS

[40] It would seem obvious that it is in the interests of society that allegations of serious criminal conduct should be disposed of after a trial on the merits. In this situation, the allegations are that a vulnerable child was assaulted physically and sexually and forcibly confined. Those types of allegations are amongst the most serious the Courts deal with. The average citizen would immediately suggest that any such charges should be dealt with by way of a trial on the merits. However, an informed member of the public must also consider constitutional rights of every Canadian, and the impact on every Canadian of those rights not being respected. An informed observer is aware of the fact that an individual accused of crime is entitled to the rights guaranteed by our Constitution. An informed observer is aware that effective enforcement of constitutional rights benefits society as a whole.

ORDER

[41] Given the length and nature of the delay in this case, this is one of the rare cases in which a stay of proceedings is a necessary remedy. Accordingly, the Court directs a stay of proceedings.

Released: May 2, 2014

Signed: "Justice A. Thomas McKay"