R. v. L. (W.K.), [1991] 1 S.C.R. 1091

W.K.L. Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. L. (W.K.)

File No.: 21616.

1991: February 22; 1991: May 16.

Present: L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Stevenson and Iacobucci JJ.

on appeal from the court of appeal for british columbia

Constitutional law ‑‑ Charter of Rights ‑‑ Fundamental justice ‑‑ Fair trial ‑‑ Accused charged with sexual offences many years after events ‑‑ Defence alleging violation of accused's rights to fundamental justice and fair trial ‑‑ Judge ordering stay of proceedings solely on basis of submissions made by Crown and defence ‑‑ Whether delay in laying charges alone can establish breach of accused's Charter rights ‑‑ Whether stay order justified ‑‑ Canadian Charter of Rights and Freedoms, ss. 7, 11(d), 24(1).

Constitutional law ‑‑ Charter of Rights ‑‑ Remedy ‑‑ Procedure ‑‑ ‑‑ Accused charged with sexual offences many years after events ‑‑ Defence alleging violation of accused's rights to fundamental justice and fair trial ‑‑ Judge ordering stay of proceedings solely on basis of submissions made by Crown and defence ‑‑ Whether procedure proper ‑‑ Whether judge erred in assessing complainants' credibility without hearing their viva voce evidence ‑‑ Whether judge's findings of fact supported by evidence ‑‑ Canadian Charter of Rights and Freedoms, ss. 7, 11(d), 24.

The accused was charged in 1987 with several counts of sexual assault, gross indecency and assault relating to his stepdaughter and two daughters. The first incident was alleged to have occurred in 1957 and the last one in 1985. The charges were laid after the accused's stepdaughter and oldest daughter complained to the R.C.M.P. in 1986. This was the first time either of the complainants had reported any incidents to the police. Before the trial, defence counsel brought a motion for a stay of proceedings on the basis that the lengthy delay in reporting the offences and in laying charges violated the accused's rights to fundamental justice and to a fair trial. Counsel for the accused and for the Crown then both made submissions which consisted of a mix of argument, allegations of fact and readings from some of the evidence given at the preliminary hearing. The judge granted the motion holding that the accused's rights under ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms had been infringed. The judge found that the complainants' explanation given for reporting the offences in 1986 was "ludicrous" and "specious", and that the failure to "protest years ago when they were beyond parental control . . . seems extraordinary". With respect to the assault charges, he stated that the "incidents, if they occurred at all, were matters of discipline over an unruly and defiant young person who it would appear was more startled than struck". The Court of Appeal set aside the order granting the stay of proceedings.

Held: The appeal should be dismissed.

It was not open to the judge to base his decision to stay the proceedings solely on the lengthy pre‑charge delay apparent on the face of the indictment. While ss. 7 and 11(d) of the Charter protect an individual's right to a fair trial, the fairness of a trial is not automatically undermined by lengthy delay. It is the effect of the delay upon the fairness of the trial, not its length, that is relevant. To stay proceedings based on the mere passage of time would be the equivalent of imposing a judicially created limitation period for a criminal offence. A court, therefore, cannot assess the fairness of a trial without considering the particular circumstances of the case. It is well documented that, in cases of sexual abuse, non‑reporting, incomplete reporting, and delay in reporting are common. In this case, the judge's critical findings of fact were not supported by the evidence and, more significantly, his finding with respect to the complainants' credibility was made without hearing proper evidence. Before rejecting their explanation for the late reporting, the judge ought to have heard their viva voce testimony. Although there is no particular procedure to follow for an application under s. 24 of the Charter, the informal procedure employed on the defence's motion in this case was inadequate since it did not produce the evidence required to support the accused's submissions.

Cases Cited

Referred to: R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128; R. v. Kalanj, 1989 CanLII 63 (SCC), [1989] 1 S.C.R. 1594; Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863; R. v. F. (G.A.) (1989), 1989 CanLII 9926 (ON CA), 69 C.R. (3d) 92, rev'g (1987), 30 C.R.R. 187; R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265; Rourke v. The Queen, 1977 CanLII 191 (SCC), [1978] 1 S.C.R. 1021.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, s. 7, 11(a), (b), (d), 24.

Criminal Code, R.S.C., 1985, c. C‑46, s. 691(2)(a).

Authors Cited

Bharam, Durga M. "Statute of Limitations for Child Sexual Abuse Offenses: A Time for Reform Utilizing the Discovery Rule" (1989), 80 J. Crim. L. & Criminology 842.

Canada. Report of the Committee on Sexual Offences Against Children and Youths. Sexual Offences Against Children, vol. 1. Ottawa: Minister of Supply and Services, 1984.

APPEAL from a judgment of the British Columbia Court of Appeal (1989), 1989 CanLII 7152 (BC CA), 51 C.C.C. (3d) 297, allowing the Crown's appeal from a judgment of McMorran Co. Ct. J.[1], ordering a stay of proceedings against the accused. Appeal dismissed.

Marvin R. V. Storrow, Q.C., and Joanne R. Lysyk, for the appellant.

Alexander Budlovsky, for the respondent.

//Stevenson J.//

The judgment of the Court was delivered by

Stevenson J. -- The appellant, accused, appeals, as of right, a decision of the British Columbia Court of Appeal setting aside a stay of charges against him. The issue we are to address is whether the judge had sufficient material before him to enable him to act upon the accused's argument that the charges were a violation of fundamental justice and a denial of the accused's right to a fair trial.

The Crown concedes that the appeal lies under s. 691(2)(a) of the Criminal Code, R.S.C., 1985, c. C-46, because, for appellate purposes, the stay is equivalent to an acquittal and the reversal, although only resulting in a trial, permits an appeal as of right (see R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128; R. v. Kalanj, 1989 CanLII 63 (SCC), [1989] 1 S.C.R. 1594).

The judge at first instance, who was to be the trial judge, entered the stay on a motion made just before the trial was to commence. It is common ground that the application was based on pre-charge delay alleged to violate the Canadian Charter of Rights and Freedoms. I note that, in this Court, the appellant relied on ss. 7 and 11(d) of the Charter as providing the basis for a stay under s. 24.

The procedure employed was unusual and in the view of the Court of Appeal, flawed. They set aside the stay, noting that the trial judge could properly deal with the application as part of the trial process when viva voce evidence could be offered. I agree with their conclusion.

The appellant in this case was charged in January, 1987, with 17 counts of sexual assault, gross indecency and assault relating to his step-daughter and two daughters. The first incident was alleged to have occurred in 1957; the last in 1985. The charges were laid after the appellant's step-daughter and daughter complained to the R.C.M.P. in July, 1986. This was the first time either of the complainants had reported any incidents to the police.

The appellant was ordered to stand trial on May 13, 1987. On January 28, 1988, an 18-count indictment, in substantially the same form as the 17-count information, was filed. On May 4, 1988, the appellant filed a notice of motion requesting that the proceedings be stayed pursuant to s. 24(1) of the Charter on the basis that the charges were contrary to ss. 7, 11(a) and (b). On June 7, 1988, counts 17 and 18, he two charges relating to the second daughter, were severed.

When the trial was scheduled to open (before the judge sitting without a jury), counsel for the accused brought on the motion for a stay. No supporting material was referred to in the motion which was described as being of a "non-contentious nature". Counsel stated he would be mainly relying on s. 7 of the Charter.

Counsel for the accused then made submissions which consisted of a mix of argument, allegations of fact and readings from some of the evidence given at the preliminary hearing. Crown counsel responded with a similar mix, although occasionally referring to the lack of evidence on some points. He suggested that the trial continue, at least to the close of the Crown's case, so that the judge could hear evidence. It is clear that the judge did not himself read the preliminary hearing transcript.

Counsel for the accused's main submission was:

... that it is contrary to the principles of fundamental justice to bring a person to court up to thirty years after an alleged event on the uncorroborated evidence of one witness in each count, particularly when these complainants had every opportunity many years before.

Counsel also suggested that it was open to the trial judge to stay the proceedings based solely on the length of time that had passed since the first incident. The trial judge stayed the proceedings.

The Judgment at First Instance

McMorran Co. Ct. J. commented:

The explanation given by the complainants for their eventual reporting to the authorities, is at best, ... is ludicrous and in any event it was by a mere whim that the older woman spoke to the younger woman....

McMorran Co. Ct. J. concluded:

To paraphrase Judge Killeen in R. v. Ford [later reported as R. v. G.A.F. (1987), 30 C.R.R. 187], some occurrences appear to have been pushed back into the mist of almost another generation. Indeed that is exactly what has occurred in many of the counts here. In my view, this is one of those "clearest of cases" where to compel the accused to stand trial would most certainly violate those fundamental principles of justice which underlie the community's sense of fair play and justice. I am unable to understand how the Crown officers have not been able to realize this. The only explanation which I can attribute charitably to the Crown's position is that they, as have others, have been caught up in the social upheaval surrounding sex and sexual offences, real or imagined.

He also held that:

Neither in my view would it be possible for the accused here to receive a fair trial as contemplated by Section 11(d) of the Charter, given the specious reason relating to protection of the younger sister regarding the making of the complaint, and given the animosity by the two complainants for their father; and what appears to be reasonably strict discipline over them as young girls, adds to the oppression visited upon the accused.

Finally, McMorran Co. Ct. J. held that counts 14, 15 and 16 should be stayed since the prosecution of those charges would also violate the ss. 7 and 11(d) rights of the appellant. "These incidents, if they occurred at all, were matters of discipline over an unruly and defiant young person who it would appear was more startled than struck." If the assaults occurred, they were trivialities with which the law should not be concerned.

The British Columbia Court of Appeal

The British Columbia Court of Appeal (1989), 1989 CanLII 7152 (BC CA), 51 C.C.C. (3d) 297 held that the trial judge erred because he made conclusions that were not supported by information given to him by counsel. Specifically, "his conclusion that the respondent and his wife suffered severe health problems because of this matter was not supported by the evidence which was before him nor by statements from counsel" (p. 301 (emphasis in original)).

More significantly, he erred by determining the credibility of the complainants without hearing proper evidence. The court referred to Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863, where McIntyre J. held that in certain cases, a motion under s. 24(1) of the Charter should be supported by viva voce evidence. This was such a case. The appellant was required to demonstrate the violation of his rights on a preponderance of evidence and that this was one of those clearest of cases entitling him to a stay of proceedings. Since delay alone is not enough to justify a stay, the basis of the appellant's argument was the credibility of the complainants. The trial judge had to hear the evidence of the complainants in order to assess their credibility, the effect of the delay on their credibility and the reasons for the delay. Therefore, in this particular case, the trial judge was required to proceed with the trial.

The court also pointed to the decision of the Ontario Court of Appeal in R. v. F. (G.A.) (1989), 1989 CanLII 9926 (ON CA), 69 C.R. (3d) 92, reversing the decision of Killeen Dist. Ct. J. which was relied on by the trial judge in this case. In F. (G.A.), Grange J.A. stated (at p. 96):

Essentially, the trial will depend upon the credibility of the complainants and the respondent. It may be that the triers of fact will hesitate to accept the complainants' version of events when they delayed so long in making their complaint, but the determination is for them. Again I say that if, as the trial develops, it appears the respondent has been prejudiced by delay, the question of his fair trial and the applicability of s. 7 of the Charter can again be considered. I say now only that prejudice has not yet been shown.

The court in this case, after citing F. (G.A.), concluded (at p. 303):

... that reasoning applies in the case at bar. I consider that the trial judge erred in granting a stay without receiving proper evidence, when the basis for the allegations that the prosecution of the respondent was contrary to the principles of fundamental justice and was in breach of his right to a fair trial, rested upon the credibility of the complainants and of the respondent.

The court also considered whether the Crown was estopped from challenging the evidentiary basis for the trial judge's decision since it had not objected during the motion. After reviewing the passage from the transcript upon which the appellant relied, the court concluded that the Crown had not waived that right since it was not clear to what the Crown was agreeing. In fact, the Crown suggested on three occasions that there was no evidence to support the motion.

The Charter Provisions

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

8. Any person charged with an offence has the right

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

Analysis

The accused bore the burden of showing an infringement in invoking s. 24 of the Charter: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 277. Here, counsel had particularized the grounds of his attack at the hearing of the motion. Much of what the judge said lay outside those particulars. The decision of the Court of Appeal was grounded on the judge's making finding of facts in the absence of an evidentiary base for the findings.

Although I agree with the result in the Court of Appeal for the reasons set out below, I first address whether it was open to the trial judge to base his decision on the delay that was apparent on the face of the indictment. If so, the evidentiary question may not arise. I consider this issue because the accused's counsel in his submissions to the trial court judge argued that mere delay alone could result in a breach of an individual's rights and it is arguable the trial judge's order is based solely on the delay.

Many of the cases which have considered the issue have held that "mere delay" or "delay in itself" will never result in the denial of an individual's rights. This language is imprecise. Delay can, clearly, be the sole "wrong" upon which an individual rests the claim that his or her rights have been denied. The question is whether an accused can rely solely on the passage of time which is apparent on the face of the indictment as establishing a violation of s. 7 or s. 11(d).

Delay in charging and prosecuting an individual cannot, without more, justify staying the proceedings as an abuse of process at common law. In Rourke v. The Queen, 1977 CanLII 191 (SCC), [1978] 1 S.C.R. 1021, Laskin C.J. (with whom the majority agreed on this point) stated that (at pp. 1040-41):

Absent any contention that the delay in apprehending the accused had some ulterior purpose, courts are in no position to tell the police that they did not proceed expeditiously enough with their investigation, and then impose a sanction of a stay when prosecution is initiated. The time lapse between the commission of an offence and the laying of a charge following apprehension of an accused cannot be monitored by Courts by fitting investigations into a standard mould or moulds. Witnesses and evidence may disappear in the short run as well as in the long, and the accused too may have to be sought for a long or short period of time. Subject to such controls as are prescribed by the Criminal Code, prosecutions initiated a lengthy period after the alleged commission of an offence must be left to take their course and to be dealt with by the Court on the evidence, which judges are entitled to weigh for cogency as well as credibility. The Court can call for an explanation of any untoward delay in prosecution and may be in a position, accordingly to assess the weight of some of the evidence.

Does the Charter now insulate accused persons from prosecution solely on the basis of the time that has passed between the commission of the offence and the laying of the charge? In my view, it does not.

Staying proceedings based on the mere passage of time would be the equivalent of imposing a judicially created limitation period for a criminal offence. In Canada, except in rare circumstances, there are no limitation periods in criminal law. The comments of Laskin C.J. in Rourke are equally applicable under the Charter.

Section 7 and s. 11(d) of the Charter protect, among other things, an individual's right to a fair trial. The fairness of a trial is not, however, automatically undermined by even a lengthy pre-charge delay. Indeed, a delay may operate to the advantage of the accused, since Crown witnesses may forget or disappear. The comments of Lamer J., as he then was, in Mills v. The Queen, supra, at p. 945, are apposite:

Pre-charge delay is relevant under ss. 7 and 11(d) because it is not the length of the delay which matters but rather the effect of that delay upon the fairness of the trial. [Emphasis added.]

Courts cannot, therefore, assess the fairness of a particular trial without considering the particular circumstances of the case. An accused's rights are not infringed solely because a lengthy delay is apparent on the face of the indictment.

I note, additionally, and in response to the trial judge's specific comments regarding society's attitudes relating to sexual crimes, that the nature of this kind of offence provides additional support for my conclusion. The appellant was charged with several offences which amounted to sexual abuse. It is well documented that non-reporting, incomplete reporting, and delay in reporting are common in cases of sexual abuse. The 1984 Report of the Committee on Sexual Offences Against Children and Youths (the Badgley Report), vol. 1, explained at p. 187 that:

Most of these incidents were not reported by victims because they felt these matters were too personal or sensitive to divulge to others, and because many of them were too ashamed of what had happened.

After reviewing the evidence, the Report concluded that:

Female victims were more than twice as likely (23.8 per cent) as male victims (11.1 per cent) to have sought assistance. However, a majority of victims of both sexes had not done so. For three in four female victims and about nine in 10 male victims, these incidents had been kept as closely guarded personal secrets.

For victims of sexual abuse to complain would take courage and emotional strength in revealing those personal secrets, in opening old wounds. If proceedings were to be stayed based solely on the passage of time between the abuse and the charge, victims would be required to report incidents before they were psychologically prepared for the consequences of that reporting.

That delay in reporting sexual abuse is a common and expected consequence of that abuse has been recognized in other contexts. In the United States, many states have enacted legislation modifying or extending the limitation period for the prosecution of sexual abuse cases, in recognition of the fact that sexual abuse often goes unreported, and even undiscovered by the complainant, for years. This legislation has, to date, withstood constitutional challenges. (See, for example, Durga M. Bharam, "Statute of Limitations for Child Sexual Abuse Offenses: A Time for Reform Utilizing the Discovery Rule" (1989), 80 J. Crim. L. & Criminology 842.) Establishing a judicial statute of limitations would mean that sexual abusers would be able to take advantage of the failure to report which they themselves, in many cases, caused. This is not a result which we should encourage. There is no place for an arbitrary rule.

I turn now to the factual base for the trial judge's conclusions. The question here is not to define a breach of fundamental justice or of the right to a fair trial, but the much narrower one of determining whether there was evidence to support the fact findings. I do not find it necessary to analyze all the fact findings, it is sufficient that critical ones be found to be flawed.

The trial judge considered the sexual offence charges first. He held that the appellant's rights under ss. 7 and 11(d) of the Charter had been infringed and that counts 1 through 13 should be stayed. To support that conclusion, the trial judge made two key findings of fact. First, he found that the explanation given for reporting the offences in 1986 was "ludicrous" and "specious". Second, he found that there was an unexplained delay in reporting the offences and that the failure to "protest years ago when they were beyond parental control... seems extraordinary".

The trial judge's rejection of the explanation for the eventual reporting was a finding of credibility. He not only rejected that explanation but, in characterizing it as specious, appears to have found an improper motive contributing to "oppression". It was not open to him to reject unchallenged testimony. If the trial judge agreed with the appellant that the explanation for the late reporting was relevant, and had doubts about the credibility of the complainants, he ought to have heard their viva voce testimony. The informal procedure employed was, in these circumstances, inadequate.

There was, in addition, no evidence before the trial judge that "the complainants made no protest years ago when they were beyond parental control". Counsel for the accused had read to the trial judge excerpts from the preliminary hearing transcript in which the step-daughter reviewed the various individuals she had told about the abuse. The trial judge contradicted his own finding of fact later in his reasons when he stated that:

I am also of the view in this case that the position of the prosecutorial authorities and the Ministry of Human Resources which accepted some assertion apparently of one of the complainants, become the executive together and are indivisible as was discussed in R. v. Young...

The trial judge then considered the assault charges in counts 14, 15 and 16. He relied on the same findings of fact which I have found to be flawed. In addition, he stated that the "incidents, if they occurred at all, were matters of discipline over an unruly and defiant young person who it would appear was more startled than struck." There was no evidence that the complainant was "unruly and defiant" or that she was more "startled than struck".

I do not read the judgment of the Court of Appeal as saying that any particular procedure must always be employed in resolving applications under s. 24. It might, for example, be open to the parties to put forward an agreed statement of facts. The decision to continue to trial and argue the motion at the close of the Crown's case, to submit evidence by affidavit, or to agree to a statement of facts will depend on the extent to which the parties can agree and the nature of the facts which the parties seek to establish. I agree with the Court of Appeal that the informal procedure employed on this motion was inadequate since it did not produce the evidence required to support the submissions of the accused. I reiterate that neither this Court nor the Court of Appeal addresses the question of defining the circumstances in which an accused may successfully invoke ss. 7 or 11(d) of the Charter.

The Court of Appeal was correct in its conclusion that the fact finding was unsupportable and I would dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant: Blake, Cassels & Graydon, Vancouver.

Solicitor for the respondent: The Ministry of the Attorney General, Vancouver

[1] Co. Ct. (New Westminster), No. X018265, September 9, 1988.