Her Majesty the Queen v. D.M., 2012 ONSC 221

COURT FILE NO.: 11-03860

DATE: 20120111

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

D.M.Defendant

Cheryl Goodier, for the Crown

Paul Alexander, for the Defendant

HEARD: December 5-6, 2011

ruling on stay of proceedings application

boswell j.

[1] The most egregious example of justice delayed in the history of Canada. An abuse of process by the Crown. A fair trial rendered impossible due to lost evidence and fading memories. These are the three pillars upon which a stay of proceedings application was constructed by the Defendant. The application was exceptionally well-argued. The supporting materials comprehensive and skilfully assembled. But in the final analysis, the application fails, for the reasons that follow.

OVERVIEW:

[2] This is an unusual case and indeed unfortunate on a number of levels. The narrative begins on March 18, 1986. D.M. was just shy of 27 years old. His current counsel, Mr. Alexander, was 10 – about the same age as SV[^1], the complainant in this case. Her mother, WW, and D.M. had lived in a common law relationship in Orillia, Ontario. On March 18, 1986, D.M. was charged with one count of sexually assaulting SV, at some point between July 1, 1985 and February 15, 1986. At the time the charge was laid, he was no longer living with WW.

[3] When allegations of abuse surfaced, SV was interviewed by Rick MacDonald, a social worker from the Simcoe County Children’s Aid Society (the “CAS”), in the presence of the investigating police officer, OPP Detective Leon Jenkins. SV would not provide details of the alleged abuse to the interviewer, but would only nod or shake her head in response to specific questions put to her. Crown counsel ultimately determined, in view of SV’s reticence, that it was best to withdraw the charge against D.M., with a view to re-laying the charge if SV was prepared, at some future date, to come forward. The withdrawal occurred on May 26, 1986. Shortly after the charge was withdrawn, D.M. and WW recommenced cohabitation.

[4] D.M. and WW cohabited for a number of years but eventually separated on a final basis. SV lived with her grandmother throughout. Later, D.M. married. His wife, JM, had a daughter, DP. In October 2008, D.M. was charged with sexual assault, sexual exploitation and invitation to sexual touching against DP and two grandchildren (the “DP Charges”). During the course of the prosecution of these charges, the Crown Attorney advised D.M.’ counsel that the police had re-interviewed SV, who had now provided details of allegations of sexual assault by D.M. during the 1980s.

[5] On April 7, 2010, about 2 months before his trial on the DP Charges, D.M. was charged with sexual offences against SV from the 1980s. D.M. elected trial by judge and jury and a trial date has been set, for 5 weeks, beginning October 1, 2012.

POSITIONS OF THE PARTIES:

[6] D.M. makes application for a stay of proceedings. He says that his right to be tried within a reasonable time on the charges relating to SV has been grossly infringed because more than 26 years have passed since he was first arrested. He says that he has suffered immense prejudice as a result of the delays incurred, to his health and welfare and to his ability to make full answer and defence to the charges against him. He argues that the Crown has abused its discretion and authority in doing nothing for well over 20 years to prosecute the charges in relation to SV. In the intervening years memories have faded, at least one important witness has disappeared and key evidence has been lost, most significantly a three page exculpatory statement he gave to the police in April 1986

[7] The application is opposed by the Crown. The Crown argues that the current charges are not the same as the charge in 1986 and, as such, the delay clock does not start ticking until the new charges were laid on April 7, 2010. Any delays in proceeding with the current charges are within the guidelines set by the Supreme Court in R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771 and any prejudice suffered by D.M. insufficient to warrant a stay of proceedings. The Crown asserts that its actions in withdrawing the charge against D.M. in 1986 were reasonable, as was the decision to re-charge him in 2010. Any allegation of abuse of process is strongly denied. On the issue of the lost evidence, the Crown asserts that the evidence was not lost by reason of unacceptable negligence and, in any event, the right of the accused to make full answer and defence to the case against him has not be significantly prejudiced.

THE ISSUES:

[8] I have organized the issues raised by the application in accordance with the three prongs of the argument: unreasonable delay; abuse of process; and prejudice arising from lost evidence. The following questions are raised by the positions of the parties:

Unreasonable Delay (s. 11b):

(i) When does the clock start running for purposes of the delay application and, consequently, how long is the overall period of delay in this case?

(ii) What are the reasons for the delay?

(iii) What prejudice has D.M. suffered as a result of the delay?

Abuse of Process:

(i) Has prosecutorial misconduct, affecting trial fairness or otherwise offending the notion of fair play, given rise to an abuse of process that justifies a stay of proceedings?

Lost Evidence:

(i) Has relevant evidence been lost by the Crown?

(ii) Was the loss of evidence the result of unacceptable negligence?

(iii) Has the loss of evidence caused irreparable prejudice to D.M.’ right to make full answer and defence?

[9] I will analyze the issues in turn, beginning with the questions raised by the delay argument.

ANALYSIS:

I. Unreasonable Delay (s. 11b)

[10] Section 11(b) of the Canadian Charter of Rights and Freedoms (the “Charter”) provides that every person charged with a criminal offence has the right to be tried within a reasonable time. This right serves to protect and promote a number of key individual interests. First, it serves to minimize the anxiety and stigma associated with being charged with a criminal offence. Second, it serves to reduce the restrictions on liberty that may result from pre-trial incarceration and/or restrictive bail conditions. Third, it promotes the hearing of proceedings while evidence is available and fresh. At the same time, it promotes society’s interest in seeing that trials are held within a reasonable time, and in seeing that those who transgress the law are dealt with fairly and according to law: see R. v. Morin, as above, at paras. 27-28 and R. v. MacDougall, 1998 CanLII 763 (SCC), [1998] 3 S.C.R. 45.

[11] The leading authority on s. 11(b) applications remains the Supreme Court’s 1992 decision in R. v. Morin, as above. In Morin, Mr. Justice Sopinka confirmed that the primary purpose of s. 11 (b) is the protection of the individual rights of the accused. That said, there are always significant societal interests in play when an accused seeks to have criminal charges stayed on the basis of delay. The remedy of a stay permanently prevents the state from prosecuting alleged criminal acts. Courts must balance the individual rights of the accused and society’s interests within the factual context of each individual case, having regard to the particulars and causes of any impugned delays. A purely mathematical calculation of the time between charge and trial is not sufficient – a contextual analysis is necessary in every case.

[12] In Morin, the Supreme Court provided a framework for the requisite judicial balancing. Within that framework, four factors must be considered:

(i) The length of the delay. This factor requires a general overview of the length of any delays. If the delays are prima facie unexceptional then further inquiry is not necessary. Where the delays do warrant further inquiry, the remaining three factors are to be considered;

(ii) Any waivers of time periods. Any time periods unequivocally waived by an accused are to be deducted from the overall period of delay;

(iii) The reasons for the delay, including five sub-categories:

• inherent time requirements of the case;

• actions of the accused;

• actions of the Crown;

• institutional resources;

• other reasons for delay; and

(iv) Prejudice to the accused. There are two types of prejudice that factor into the 11(b) analysis. First, inferential prejudice, which arises from the delay itself. The longer the delay, the more likely it is that a court will infer prejudice. Second, prejudice, or a lack thereof, based on evidence led by the accused or the Crown.

[13] The first question, the length of the delay, is a little trickier in this case than most because of an exceptionally long intervening period between when a charge of sexual assault was first withdrawn in 1986, and when it was re-laid in 2010.

(i) How Long is the Overall Delay?

[14] Section 11(b) of the Charter applies to “any person charged with an offence.” D.M. was charged with the offence of sexual assault in March 1986. The law is clear that, for the purposes of a s. 11 (b) analysis, the delay calculation begins to run from the date the accused was first charged and ends with the trial: R. v. Kalanj, 1989 CanLII 63 (SCC), [1989] 1 S.C.R. 1594. But D.M.’ charge was withdrawn in May 1986 and not re-laid until April 2010, resulting in a very significant gap during which D.M. was not facing charges. It is this significant gap that defines this case and sets up what D.M.’ counsel called the “longest case of pre-trial delay in Canadian judicial history.”

[15] There have been a number of other “gap” cases considered by the courts, most notably R. v. Antoine, 1983 CanLII 1743 (ON CA), [1983] O.J. No. 3021 (C.A.). In Antoine, the accused was charged on August 31, 1980, with defrauding the Ministry of Community and Social Services. On July 23, 1981 the accused appeared for her trial before a judge alone. She successfully moved to quash the indictment against her. A new information was sworn on July 29, 1981, and a trial ultimately rescheduled for October 26, 1982. The accused moved for a stay of proceedings before the trial judge on the basis that her right to a trial within a reasonable time was infringed. The motion was granted. The Crown appealed, arguing that the delay analysis should have commenced with the laying of the new information and that the trial judge ought not to have included the period prior to July 29, 1981, in his analysis. The Court of Appeal disagreed. Justice Martin held, at para. 25:

…[I]n determining the question whether the respondent’s right under s. 11(b) of the Charter to be tried within a reasonable time has been infringed, the prefereable approach is to examine the entire period between the laying of the initial information and the trial of the accused to determine whether the delay, in the circumstances, was reasonable. The determination of the reasonableness of the delay requires an examination of the reasons for the delay, if prima facie, the delay appears excessive.

[16] Antoine appears to have been applied, more or less consistently, in gap cases since its release: see Re Garton and Whelan, [1986] O.J. No. 3325 (C.A.) and, more recently, R. v. George, [2005] O.J. No. 3241 (S.C.J.). One notable exception is R. v. G.C.B., [1998] O.J. No. 1184 (Gen. Div.), a decision of Valin J. on an application for a stay of proceedings due to unreasonable delay. The accused was charged in August 1987 with sexually assaulting his daughter. The charge was withdrawn by the Crown in March 1988. In 1996, the accused was re-charged with sexually assaulting his daughter, amongst other offences. Justice Valin elected not to include any of the time preceding the re-laying of the charge in the s. 11 (b) analysis. He referenced R. v. Antoine, but indicated a preference for the Court of Appeal’s reasoning in R. v. R. (G.W.), 1996 CanLII 613 (ON CA), [1996] O.J. No. 4277.

[17] In R. (G.W.), the accused was charged with unlawful intercourse, indecent assault and gross indecency in relation to his step-daughter. The alleged criminal acts occurred between 1968 and 1974. The charges were laid some 20 years later. The evidence suggested that it was possible that a charge of juvenile delinquency was laid against the accused in 1974 and later withdrawn. It was not entirely clear, however, whether the charge had been laid at all and, if so, whether it related to the same conduct. In R.(G.W.) the court concluded that the s. 11 (b) clock began to run from the date the current charge was laid.

[18] With the greatest of respect to the trial judge in R. v. G.C.B., the facts in R.(G.W.) are markedly different than those in Antoine and indeed in G.C.B.. In G.C.B., as here, there was no doubt about the prior charge and no doubt, as I will canvass shortly, that the originally charged conduct was the same as the re-charged conduct. In my view, Antoine represents the current state of the law.

[19] As Justice Sopinka noted in Morin, the right to be tried within a reasonable time protects certain key individual interests including the minimization of stigma and anxiety associated with being charged with an offence, as well as ensuring that trials proceed when evidence is available and fresh. These interests are clearly engaged at the time an accused is first charged with an offence. The 11(b) analysis includes, significantly, an assessment of the prejudice caused by delay. In this case, the prejudice began in 1986 and has continued since then. It would be artificial and, in my view, wholly inaccurate, to ignore the fact that a charge of sexual assault was first laid in 1986 and to treat this case as though D.M. was charged, for the very first time, in 2010.

[20] Having said that, the Crown argued that the charges D.M. presently faces are not the same as the charge he faced in 1986 and, as such, the delay inquiry properly commences on April 7, 2010. In my view, the Crown’s position is only partly correct. There are six Counts on the current indictment. Three of those Counts (4, 5 and 6) relate to acts that allegedly occurred in the calendar year 1987 - after the initial charge was withdrawn in May 1986. They are clearly not the same as the offence charged in 1986. Indeed, the first and only time the accused has faced the charges referred to in Counts 4, 5 and 6 is following his arrest in April 2010. With respect to Counts 4, 5 and 6, the delay clock begins to run on April 7, 2010.

[21] The remaining three Counts (1, 2 and 3) refer, however, to sexual acts between D.M. and SV occurring sometime between January 1, 1985 and December 31, 1986. The 1986 charge alleged a sexual assault by D.M. upon SV, occurring sometime between July 1985 and February 15, 1986. SV testified at the Preliminary Hearing that D.M. had lived with her and her siblings for about one year, ending in February 1986 when she moved in with her stepfather. She testified that D.M. sexually assaulted her again on subsequent access visits she had with her mother and D.M.. She said, however, that those visits did not commence until she was 13 years old. She was born June 18, 1974, and it was not until sometime in 1987, therefore, that she visited with her mother and D.M.. All this is to say that there do not appear to be any alleged offences occurring between February 1986 and December 31, 1986, which means that the offences alleged in Counts 1, 2 and 3 on the current indictment, largely overlap the period of time referred to in the 1986 charge.

[22] Crown counsel argued that the 1986 charge referenced only sexual assault, whereas the current charges provide more detail and include sexual intercourse and oral sex. While the details of the sexual acts alleged in 1986 were not known then, the offence, as charged, was certainly broad enough to encompass all of the acts currently alleged. The difference was that the alleged acts had yet to be fully fleshed out. But D.M.’ jeopardy in 1986 clearly included the acts currently alleged in Counts 1, 2 and 3. I find that the delay clock begins to run, on Counts 1, 2 and 3, on March 18, 1986.

[23] For all charges, the delay clock continues to run until the trial, which is scheduled for five weeks beginning October 1, 2012. The trial is expected to conclude by November 2, 2012. In the case of Counts 1, 2 and 3, that is a total period of delay of 26 years, 7 months and 15 days. In the case of Counts 4, 5 and 6, the total delay period is 2 years, 6 months and 26 days.

[24] After hearing brief submissions, I was satisfied that the overall period of delay warranted a further inquiry. It is agreed that D.M. has not, at any time, waived his s. 11 (b) right with respect to the 1986 charge or the current charges. I will accordingly go on to examine the reasons for any delays in this case, as well as the prejudice suffered by D.M. as a result of any such delays.

(ii) Reasons for the Delay

[25] The contextual analysis of a delay argument inevitably calls for a careful examination of the delays and the reasons for the delays. It is important, however, when conducting such a careful, if not minute, examination of each period of delay, not to lose sight of the bigger picture. As Cromwell J. said in R. v. Godin, 2009 SCC 26, at para. 18,

It is important not to lose sight of the forest for the trees when engaging in this detailed analysis. As Sopinka J. noted in Morin, at page 787, “the 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.”

[26] An overview of the proceedings, from arrest to trial, reveals an unremarkable history, were it not for the withdrawn charge in 1986. D.M. was arrested on April 7, 2010, and released that same day on a bail recognizance. He made his first appearance in the Ontario Court of Justice (OCJ) on April 13, 2010, at which time disclosure was provided and the matter put over to May 4, 2010. On May 4, 2010, D.M. did not yet have counsel and the matter was traversed to May 25, 2010. On that day, counsel appeared for D.M. but was not fully retained and an adjournment to June 24, 2010, was requested. On June 24, 2010 a further adjournment to July 13, 2010, occurred, but for reasons which are unclear in the transcript. On July 13, 2010, a judicial pre-trial was set for July 22, 2010. The judicial pre-trial commenced before Justice Chisvin on July 22, 2010, and was put over to August 9, 2010 for continuation.

[27] Complicating matters was the fact that D.M.’ trial on the DP Charges commenced in the Superior Court of Justice (SCJ) on June 14, 2010. While his trial was underway, D.M. was arrested and charged with four counts of failure to comply with his bail recognizance. He had a bail hearing on July 5, 2010, but bail was denied. Accordingly, he was in custody at the time of his judicial pre-trials on July 22 and August 9, 2010.

[28] When scheduling hearing dates, the court gives a measure of priority to in-custody accused persons. D.M.’ counsel indicated to Justice Chisvin, however, that he intended to bring a bail variation application. Justice Chisvin was not prepared, under the circumstances, to provide in-custody dates for D.M.’s Preliminary Hearing. On August 9, 2010, Preliminary Hearing dates were set for June 6-8, 2011, which were the first available dates for an out-of-custody accused. It was agreed that if D.M.’ bail review application failed, he would bring the charges forward and seek an earlier, in-custody, Preliminary Hearing date.

[29] On December 3, 2010, D.M. was acquitted of the DP Charges in their entirety. He immediately applied for a bail variation. On December 13, 2010, he entered a guilty plea to two of the four counts of breach of recognizance and the other two counts were withdrawn. At the same time, he was released, on consent, on a bail recognizance with respect to the charges now before the court.

[30] The Preliminary Inquiry began June 6, 2011, and continued on June 7, 2011. It was then adjourned for a week, to June 15, 2011, to permit Defence counsel an opportunity to seek further witnesses. On June 15, 2011, the Justice presiding over the Preliminary Hearing was unavailable and the matter was traversed to June 24, 2011. At that time, Crown counsel was ill and the matter put over to June 28, 2011, at which time D.M. was committed to stand trial.

[31] An initial judicial pre-trial was then held in the SCJ before Minden J. on August 11, 2011. The pre-trial was adjourned to September 6, 2011, for continuation. One of the significant issues being discussed was D.M.’ election and whether he was prepared to re-elect to proceed before a judge alone. From the perspective of the court, significantly less time is typically required and substantially greater flexibility exists when scheduling a judge alone trial as opposed to a jury trial, particularly a five week jury trial as is the estimate here. D.M. was not in attendance on August 11 or September 6, 2011 and a bench warrant with discretion was issued. His absence made it impossible for counsel to obtain instructions from him with respect to a re-election.

[32] Defence counsel did indicate, as early as August 11, 2011, that he had available dates for a five week trial in November and December 2011, but there were no available dates in the SCJ for those months. At least not for a five week jury trial. It is not clear whether a judge alone trial might have been accommodated in November or December 2011. The Court had available time in March, April and May, 2012, but Defence counsel was not available for trial between January and May 2012. Ultimately, the pre-trial was adjourned to September 22, 2012, and then again to October 24, 2011, primarily to continue to canvass the prospect of a re-election by D.M.. On October 24, 2011, D.M. confirmed his election to proceed before a judge and jury and a trial date was fixed for October 1, 2012.

[33] As indicated, there were available dates in March, April and early May 2012, but Defence counsel had other commitments during that time period. The latter part of May and early June 2012 were not available to the Court because the court facilities are dedicated to a civil trial sittings during that time period. Moreover, the court in Newmarket does not schedule lengthy jury trials during the months of July and August because of the inconvenience such trials pose to everyone concerned, including jurors and counsel.

[34] In an effort to make an assessment of the reasons for any delays more manageable, I have broken down the time between the charge and the trial into 9 distinct time periods, as reflected in the following chart:[^2]

A. Proceedings in the OCJ

Period No.	Events	Dates	Months	Waiver
1.	Initial Charge to Withdrawal	March 18, 1986 to May 26, 1986	2.25	no
2.	Withdrawal to Re-Charge	May 26, 1986 to April 7, 2010	286.5	no
3.	Charge to 1st pre-trial	April 7, 2010 to July 22, 2010	3.5	no
4.	1st pre-trial to 2nd pre-trial	July 22, 2010 to August 9, 2010	0.5	no
5.	2nd pre-trial to Prelim	August 9, 2010 to June 6, 2011	10	no
6.	Complete Prelim to	June 6, 2011 to June 28, 2011	0.75	no
	Total Time in O.C.J.		303.50	0.0

B. Proceedings in the Superior Court of Justice ("SCJ")

Period No.	Events	Dates	Months	Waiver
7.	Committal to 1st pre-trial	June 28, 2011 to August 11, 2011	1.5	no
8.	Completion of Pre-trial process	August 11, 2011 to October 24, 2011	2.5	no
9.	Pre-trial to end of trial	October 24, 2011 to November 2, 2012	12.5	no
	Total Time S.C.J.		16.50	0.0
	Total Both Courts		320.0	0.0

[35] Since significant focus was placed in argument on the reasons for the delays experienced in this case, the classification of those reasons merits further refinement. I adopt the following comments of Laskin J.A. in R. v. Qureshi, 2004 CanLII 40657 (ON CA), [2004] O.J. No. 4711, 190 C.C.C. (3d) 453 (C.A), at para. 18:

Inherent time requirements: These requirements recognize that some delay is inevitable. They cover the period required to prepare and process a case assuming the availability of adequate institutional resources. The inherent time requirements of a case are neutral in the s. 11 (b) reasonableness assessment. They do not count against the Crown or the accused. These time requirements include intake procedures -- for example, bail applications, retention of counsel and disclosure. Greater time is required if the case is complex or if the proceedings include both a preliminary inquiry in the Provincial Court and a trial in the Superior Court.

Actions of the accused: Actions of the accused falling short of waiver must nonetheless be taken into account in deciding whether the delay is unreasonable.

Actions of the Crown: Similarly, the Crown’s actions may delay the trial. Even if not blameworthy, the prosecution cannot rely on its own actions to justify a delay that is otherwise unreasonable.

Limits on institutional resources: Inadequate resources may cause institutional or systemic delay. This delay begins when the parties are ready for trial but the system cannot give them a speedy trial date. The Supreme Court has put forward administrative guidelines for acceptable institutional delay: 8-10 months in the Provincial Court and 6-8 months in the Superior Court. These guidelines do not serve as limitation periods and may yield to other considerations. Where they are exceeded, however, the overall delay risks being labelled unreasonable.

Other reasons for the delay: In deciding on a s. 11 (b) application, the court must take account of all the reasons for the delay. This category catches reasons for delay that do not fit into the other four categories.

[36] I intend to analyse each of the distinct time periods I have identified above, in the context of the reasons for delay identified in Morin and as elaborated upon in Qureshi.

Period One:

[37] Period One covers the time between when D.M. was first charged in March 1986 and when that charge was withdrawn in May 1986. Courts recognize that all cases have certain intake requirements: see Morin, at para. 42. These consist of the retention of counsel, bail hearings, disclosure and other issues that are common to all cases. An intake period is part of the inherent requirements of any case. There is no hard and fast administrative guideline as to what an appropriate intake period is. The intake requirements of cases vary depending on the complexity of the individual case and the prevailing practices in the region in which the case is to be tried. At roughly two months in duration, Period One represents an appropriate intake period and is therefore part of the inherent time requirements of the case, at least in terms of Counts 1, 2 and 3. It is irrelevant in terms of Counts 4, 5 and 6.

Period Two:

[38] The classification of Period Two is of particular importance in the analysis because of its duration. It represents the vast majority of the delay in terms of Counts 1, 2 and 3 and is the basis for much of the assertion of prejudice to the accused. There was no suggestion that the delay ought to fall at the feet of the accused. Neither can it be said to be the result of insufficient resources. The Court cannot be faulted for failing to provide a speedy trial date to a case not before it. Similarly, the gap cannot be said to be part of the inherent time requirements of the case, given that the case was withdrawn in May 1986. Defence counsel urged the Court to define the gap as Crown delay. But at the same time, it was conceded that the Crown’s actions in withdrawing the charge, due to insufficient evidence, were reasonable. The failure of the Crown, it was argued, was to ensure that the case against D.M. was diligently investigated and prosecuted after the withdrawal.

[39] The charge against D.M. was initiated by an alleged incident that occurred several months before the charge was laid. D.M. allegedly exposed his genitals to SV in the kitchen of their home. The matter was not reported to the police until February 1986 when SV’s biological father contacted the OPP. An investigation was launched. SV was interviewed by the CAS and examined by a doctor at The Hospital for Sick Children. There was, in the view of the police, sufficient evidence to lay a charge. After consultation with the Crown’s office, however, it was determined that, without detailed, direct evidence from SV about what happened to her, there was no point in continuing with the prosecution at that time. According to the investigating officer, Leon Jenkins, the charge was withdrawn with a view to re-laying it if and when SV was able and prepared to disclose the details of the allegations.

[40] SV continued to see a social worker at the CAS on a regular basis. In her testimony at the Preliminary Inquiry, SV indicated that she developed a very good rapport with a social worker, Ms. Claude Charpentier, whom she saw on a regular basis after her initial interview with Rick MacDonald and Officer Jenkins. The record is not clear in terms of how long she continued to meet with Ms. Charpentier, but she was clear in her evidence that she was asked regularly by Ms. Charpentier about the abuse allegation and remained, throughout, non-responsive to questions on that subject. Office Jenkins testified, at the Preliminary Inquiry, that the protocol in 1986 for interviewing children in sexual abuse cases was for a social worker from the CAS to conduct the interview. It would have been the usual practice, therefore, that the police not directly interview SV about allegations of sexual abuse. Instead, the police would rely upon the CAS to conduct any such interviews. At some point, presumably, a decision was made to stop pressing SV for details and to allow her to disclose any such details as and when she felt comfortable doing so. It appears from the limited record before the Court that SV was simply not forthcoming with details about the alleged sexual abuse until she was re-interviewed by the police in early 2010.

[41] Defence counsel suggested that the police ought to have been periodically checking either with the CAS or with SV directly, as to whether she had any further disclosure to offer. I am unable to agree with that assertion. The record is clear that SV was offered extensive counselling and an opportunity to disclose and discuss any concerns in a therapeutic environment. That opportunity was presented to her on an ongoing basis over a time period that, while undefined, was clearly more than transient. At some point the only reasonable course of conduct, in my view, was to leave it to the complainant to come forward if and when she felt able to. On the record now before me, I cannot fault the CAS or police for their efforts.

[42] In my view, the gap is a delay that falls into the category of “other reasons for the delay”. The way in which the charge proceeded is a peculiar feature of this case. The gap is nobody’s fault or responsibility. It is properly considered neutral in the 11(b) analysis.

Period Three

[43] Period Three involves further intake procedures. Counsel agreed that the period spanning arrest to the set date for the first judicial pre-trial in the OCJ was intake time and, as such, part of the inherent time requirements of the case. That said, D.M.’ counsel argued that the intake processes had to be repeated in 2010 because of the Crown’s decision to withdraw the charge against D.M. in 1986. At paragraph 44 of his Factum, counsel wrote, “[s]ince all intake work had to be redone ‘from scratch’ in 2010 after the Applicant was re-charged, the Crown should not have the benefit of having the initial two-month intake period in 1986 counted as neutral time.” I disagree, for two reasons. First, any duplication of effort necessitated by the unique circumstances of this case does not change the character of the time in issue. Both Periods One and Three involved intake steps necessary to process the case, such as bail applications, the retention of counsel and disclosure. Both are properly characterized as intake time. The real question is whether, in the circumstances of this case, what amounts to a little more than 5 months of total intake time is reasonable. In my view it is. Although the case may not, as Defence counsel argued, be terribly complex, the gap of 24 years before the relaying of the charges made additional intake time inevitable. Moreover, there were additional counts in 2010 over and above the charge laid in 1986, together with substantially greater detail about the alleged offences. Second, the submission of Defence counsel ignores the fact that the intake period is largely for the benefit of the Defendant to retain counsel, to obtain disclosure, to consider his election and so on. In fact, in this instance, the transcripts of the initial appearances prior to July 13, 2010, make it clear that the Defendant needed the intake period to make an application for Legal Aid assistance and to retain and instruct counsel. Accordingly, this is not a case of the Crown alone benefitting from a second intake period. Intake periods benefit all parties.

[44] Defence counsel also took the position that the time from July 13, 2010 – the set date for the initial judicial pre-trial – to the date the pre-trial took place, on July 22, 2010 is institutional delay. I disagree. Counsel relied on R. v. Chatwell, 1986 CanLII 2653 (ON SC), [1986] O.J. No. 206 (C.A.) and R. v. Chung, [2008] O.J. No. 2145 (S.C.J.) as authority for the proposition that the time waiting for a judicial pre-trial is properly characterized as institutional delay. I do not agree that the Court of Appeal has established a general rule that any delay between a set date and a pre-trial date is automatically institutional delay. In this instance, the parties were provided a pre-trial date a little more than a week away. I consider this time part of the inherent time requirements of the case.

[45] As Doherty J.A. said of inherent time requirements in R. v. Allen (1996), 1996 CanLII 4011 (ON CA), 110 C.C.C. (3d) 331, at page 348:

The inherent time requirements needed to complete a case are considered to be neutral in the s. 11(b) calculus. The recognition and treatment of such inherent time requirement in the s. 11(b) jurisprudence is simply a reflection of the reality of the world in which the criminal justice system operates. No case is an island to be treated as if it were the only case with a legitimate demand on court resources. The system cannot revolve around any one case, but must try to accommodate the needs of all cases. When a case requires additional court resources the system cannot be expected to push other cases to the side and instantaneously provide those additional resources.

[46] When the pre-trial date was scheduled on July 13, 2010, the parties could not reasonably have expected to walk down the hall to appear before a judge just waiting for pre-trials to arise. In my view, an 8 day wait was as immediate a provision of court resources as anyone could hope for. The outcome of this case does not turn on the short wait between the set date and the pre-trial and indeed the Crown did not take issue with the Defence characterization of this period as institutional delay. Having said that, it is still, in my view, important to correctly characterize this period of time. The administration of justice shoulders a good deal of criticism for delays or other failures. Some of that criticism is undoubtedly deserved. The OCJ in Newmarket, as well as other centres, is an extremely busy court. Accommodating a request for a judicial pre-trial within 8 days is an example of one of the Court’s successes. It would be wrong to characterize it as systemic delay.

Period Four

[47] The pre-trial in the OCJ took place over two dates between July 22 and August 9, 2010. The parties are agreed, as am I, that the time needed to complete the pre-trial is part of the inherent time requirements of the case.

Period Five

[48] At the completion of the OCJ pre-trial on August 9, 2010, dates were scheduled for a Preliminary Hearing. The earliest dates the court could offer, for an out-of-custody accused, were in June 2011. There is no question that much of the 10 month delay between August 9, 2010 and June 6, 2011, when the Preliminary Hearing began, is the result of systemic delay. Both Crown and Defence counsel attribute the entire 10 month period to institutional delay. I do not entirely accept their approach.

[49] As my colleague, Justice Code, recently observed in R. v. Lahiry, 2011 ONSC 6780, it is an error to automatically attribute an entire period from a set date to a hearing date as institutional delay. The system only becomes accountable for delays once the parties are actually ready for a hearing and the system is unable to accommodate them: see Morin, para. 47.

[50] Unfortunately, I do not have evidence in the record regarding when the parties were first ready for the Preliminary Hearing. I am not prepared to infer that they were ready to commence with the hearing immediately following the conclusion of the judicial pre-trial on August 9, 2010. Clearly some preparation time would be necessary. I concede that, in the absence of direct evidence on the issue of readiness, the exercise inevitably includes some element of arbitrariness. But in my view, it is reasonable to expect that two months would be necessary to prepare for the Preliminary Hearing and, as such, I attribute 2 months of Period Five to the inherent time requirements of the case and the other 8 months to institutional delay.

Period Six

[51] There are no significant disputes about the characterization of Period Six, which involves the completion of the Preliminary Hearing. It began on June 6, 2011, and continued the next day, when Defence counsel sought a one week adjournment to attempt to track down two further witnesses. Crown counsel attributes this one week delay to D.M., but I am prepared to accept that it was part of the inherent time required to complete the Preliminary Inquiry. That said, when the matter was to be returned, the presiding judge was not available and a further adjournment of one week was necessitated. Defence counsel seeks to attribute this one week delay as institutional, but it would not have been necessary had D.M. not sought an adjournment of the hearing on June 7, 2011. In my view, fairness dictates that the entire period needed to complete the Preliminary Hearing be characterized as an inherent time requirement of the case.

Period Seven

[52] On June 28, 2011, D.M. was committed to stand trial in the SCJ. An indictment was preferred and an initial judicial pre-trial was scheduled in the SCJ before Minden J. on August 11, 2011. Again, relying on R. v. Chatwell and R. v. Chung, as above, the accused submitted that the waiting time for a judicial pre-trial in the SCJ was properly characterized as institutional delay. Again, I disagree.

[53] In Morin, Justice Sopinka considered additional inherent requirements of cases that proceed through two-stage trials and he held, at para. 43, as follows:

Another inherent delay that must be taken into account is whether a case must proceed through a preliminary inquiry. Clearly a longer time must be allowed for cases that must proceed through a “two-stage” trial process than for cases which do not require a preliminary hearing. Equally, a two-stage process will involve additional inherent delays such as further pre-trial meetings and added court dates. An additional period for inherent time requirements must be allowed for this second stage. This period will be shorter than in the case of the one-stage trial process because many of the intake procedures will not have to be duplicated.

[54] The six weeks between the committal and the first judicial pre-trial in the SCJ is, in my view, an appropriate intake period for the second stage of the trial process.

Period Eight

[55] The pre-trial process in the SCJ consisted of four appearances between August 1, 2011 and October 24, 2011. This period of time is a little tricky because most of the pre-trial discussions took place off the record. The only evidence of what was discussed during the pre-trials and why four separate dates were required is contained in the brief transcripts provided for the hearings on August 11, September 6, September 22 and October 24, 2011. In his Factum, Defence counsel states, at para. 83,

The period from August 11, 2011 until March 5, 2012 is institutional delay. The parties were prepared to set trial dates but (a) Minden J. would not allow the parties to set dates unless the Application either re-elected that day or gave up his right to re-elect, and (b) in any event, it had been clear since August 11, 2011 that no trial dates were available before 2012.

[56] There is no evidence in the record to support the assertions found at para. 83 of the Defence Factum. The Crown takes the position that the three adjournments of the pre-trial were necessary because Defence counsel could not get instructions from his client on the issue of a possible re-election. The comments of Justice Minden on October 24, 2011, make it apparent that the issue of a possible re-election were canvassed repeatedly from August 11 to October 24, 2011. The record is further clear that D.M. failed to attend court on August 11 and September 6, 2011, making it difficult, if not impossible, to resolve all pre-trial issues. I agree with the Crown that adjournments from August 11 and September 6, 2011, fall at the feet of D.M.. I consider the further one month period from September 22 to October 24, 2011, required to complete the pre-trial, to be part of the inherent time requirements of the case.

[57] The Defence assertion that all of the time from August 11, 2011 to March 5, 2012, is systemic delay is also undermined by the fact that D.M. was not, on his own assertion, ready for a trial until November 2011. Systemic delay only begins, as I noted above, when the parties are ready for a trial and the system is unable to accommodate them. The record is not clear in terms of when, in November 2011, D.M. was ready for a trial, but I will accept that he was ready for trial by mid-November. In my view, other than the 5 weeks between August 11 and September 22, 2011, which I attribute to defence delay, the balance of time until November 15, 2011, is inherent or neutral time in the delay calculation.

Period Nine

[58] The final period under examination runs from the completion of the judicial pre-trial in the SCJ to the anticipated completion of the 5 week jury trial. I have already indicated, in my analysis of Period Eight, that I consider the period September 22 to November 15, 2011, to be part of the inherent time requirements of the case. I accept at face value the Defence assertion that they were ready and able to conduct a five week jury trial by mid-November 2011. The Court was not able to accommodate a jury trial of that length until at least March 5, 2012. I attribute the time between November 15, 2011, and March 5, 2012, a total of 3.75 months, to systemic delay.

[59] The Court could have accommodated a trial in March, April or early May 2012. Defence counsel was unavailable as a result of other commitments. I attribute 1.75 months of delay after March 5, 2012 to the Defence. I point out that this is not to suggest that D.M. or his counsel should be faulted for not being available during this time period. This is an objective assessment of the reasons why the trial could not proceed between the fall of 2011 and the fall of 2012.

[60] If the trial had not commenced by the end of April, 2012, it would not have proceeded until the fall because, as Justice Minden noted, the civil trial sittings begin in Newmarket at the end of May 2012 and continue into June 2012. The Court was then either unable or unwilling to schedule a lengthy jury trial during the months of July and August 2012. A strong argument might be made that the summer months are neutral time in the analysis because, as a practical matter, it would be extremely difficult to accommodate all counsel over a 5 week period in the summer and equally difficult to secure sufficient jurors able or willing to sit through the bulk of the summer. That said, for the purposes of this case, I am prepared to accept that the delay from the beginning of May 2012 to October 1, 2012, a total of 5 months, is systemic delay.

[61] Finally, the estimated five weeks necessary to complete the trial before a jury is part of the inherent time requirements of the case.

Summary of Delays

[62] The delays in the two courts, and my characterization of them, can be summarized as follows:

In the OCJ:

• 6.25 months intake[^3]
• 286.5 months gap/neutral[^4]
• 2.75 months inherent
• 8.0 months systemic

In the SCJ:

• 1.5 months intake
• 3.25 months Defendant
• 3.0 months inherent
• 8.75 months systemic

[63] In Morin, the Supreme Court set out administrative guidelines to be considered in delay applications under s. 11(b) of the Charter. In particular, it was suggested that tolerable systemic delays in the OCJ are in the range of 8-10 months, while tolerable delays in the SCJ are in the range of 6-8 months, for a total of 14 to 18 months tolerable systemic delay in a two stage proceeding. By my calculations, the total time attributable to systemic delays in this case is 16.75 months, which is within the administrative guidelines for a two stage proceeding.

[64] It is important to recall that the guidelines set in Morin are not a limitation period nor a fixed ceiling on delay. They must be considered in the context of the case as a whole. I have found that apart from the 24 year gap period, which I consider neutral time in the s. 11 (b) analysis, the delays in this case are unremarkable. That said, in assessing the reasonableness of any delays incurred, there remains a fourth factor to consider. As Sopinka J. noted in Morin, the presence or absence of prejudice affects the level of tolerance for institutional delays. A shorter period would be tolerable, for instance, where an accused is in pre-trial custody or subject to very stringent bail conditions. Accordingly, I now turn to the final element of the analytical framework mandated by Morin: the issue of prejudice to the accused.

(iii) Prejudice to the Accused

[65] In Morin, Mr. Justice Sopinka observed that prejudice could be either inferred directly from a lengthy delay or proven on evidence supplied by the accused.

[66] D.M. provided extensive evidence on the issue of prejudice. His prejudice was described in four categories: stigma, liberty restrictions, anxiety and other health-related issues, and prejudice to his ability to make full answer and defence due to a loss of evidence. To be clear, the loss of evidence issue also forms the basis of a stand-alone application for a stay. As I will detail below, a loss of evidence only justifies a stay where it can be demonstrated that the prejudice to the accused's right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution continued: R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411. For the purposes of the s. 11 (b) application, D.M. argues only that the impact on his ability to make full answer and defence is one of a constellation of factors that create a substantial prejudicial effect on him.

[67] I will review the elements of prejudice in turn. In addition to the elements on which evidence was led, there is also the matter of inferred prejudice, to which I will return shortly.

Stigma

[68] Clearly there is a stigma associated with being charged with sexually abusing a child. D.M. reflects in his affidavit on the fact that by the time the trial in this case is over, he will have waited more than 26 ½ years to clear his name. It is important to remember two things, however. First, the charges involving SV have not been hanging over D.M.’ head for that 26 year period. They were laid and quickly withdrawn. Second, the prejudice the court must be concerned with is that which arises from the delay and not the type of prejudice that arises from being charged with a criminal offence. As Wilson J. sated in R. v. Rahey 1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588, at page 624:

[T]he impairment or prejudice we are concerned with under s. 11(b) is the impairment or prejudice arising from the delay in processing or disposing of the charges against an accused and not the impairment or prejudice arising from the fact that he has been charged. The prejudice arising from the fact of being charged with a criminal offence is suffered even where the accused is tried within a reasonable time. It is, so to speak, inherent in the system itself.

[69] As D.M. stated at paragraph 22 of his Affidavit, “I am 52 years old now. These charges first arose half my life ago.” Indeed, they had long since receded into the background of time. At paragraph 43 of his Affidavit, D.M. said, “Before I was charged in 2008, I was a happy, outgoing man with a love of life. My 2008 charges changed all that.” (emphasis mine)

[70] Shortly after the withdrawal of the charge in May 1986, D.M. reconciled with SV’s mother, WW, and they continued to live together for several years. After he separated from WW, he met and later married JM. He told JM about the charge involving SV because he did not want her hearing about it from someone else. JM apparently did not hold it against him.

[71] It is of some significance, in my view, that the allegations involved in the 1986 charge were never particularized. The charges D.M. currently faces particularize alleged incidents of oral sex and intercourse with a child, likely significantly more stigmatizing than a bare allegation of sexual assault, which was withdrawn after two months. D.M. did not seek, nor obtain, advice from counsel as to what options were available for a future prosecution. He testified in direct examination at the hearing of this application that he did not know what the withdrawal meant. He did not know whether the Crown could even re-lay the charge.

[72] D.M.’ evidence supports the finding that, to whatever extent he was stigmatized by the charge in 1986, the stigma did not have a lasting effect on him. He was able to move on with his life, to form new relationships, to have a happy life. I am satisfied that any stigma suffered as a result of the 1986 charge, as re-laid in 2010, reflects the fact that charges were laid at all, and does not arise as a result of any delays.

[73] It is difficult, if not impossible, of course, to separate the stigma associated with the charges involving SV from the stigma associated from the DP Charges. As D.M. said himself, his happy life came to a crashing halt when he was charged in 2008 with offences relating to DP and two grandchildren. Undoubtedly, significant stigma has resulted from a combination of the 2008 and 2010 charges. But in my view, the stigma is not attributable to delays in the prosecution of the charges involving SV.

Liberty Restrictions

[74] D.M. was not detained on the 1986 charge. It appears he was released on his own recognizance. He was arrested in 2008 in connection with the DP Charges. Within days, he was released on a bail recognizance that he described as house arrest. He was to reside with his surety, Ruth Zive. He described Ms. Zive’s residence as a small apartment. He did not have his own room, or anywhere to store his things. He slept on the couch for a while, then on the floor in an exercise room. Initially, he could be out of the surety’s residence only when accompanied by the surety, when attending court, or when attending work. D.M. is a long-haul truck driver, so attending work meant, for him, travelling across Canada. His initial bail conditions were subsequently relaxed, so that he was generally able to be outside of his surety’s residence on his own.

[75] When the charges involving SV were laid in April 2010, D.M. was immediately released on a bail recognizance on the same terms as his existing recognizance involving the DP Charges. Apart from the condition that he continue to reside with Ms. Zive, his liberty was not significantly restricted.

[76] In July 2010, while his trial on the DP Charges was ongoing, D.M. was charged with four counts of breaching his bail recognizance. He was detained and a bail application denied. He was in custody until December 13, 2010, when he was acquitted on all of the DP Charges. He then entered a guilty plea to two counts of breach and was released on an amended bail recognizance. D.M. acknowledged, under cross-examination, that the breach charges, and his subsequent period in custody, had nothing to do with the charges involving SV.

[77] D.M. now resides with a different surety, in Gamebridge. He says he only knows two people in Gamebridge and feels isolated. The change in bail conditions reflects, at least in significant part, the fact that he breached his prior recognizance. He must take some responsibility for the fact that his bail conditions were ultimately altered. While isolated somewhat in Gamebridge, I note that D.M. testified that he is on the road 4-5 days a week with his job. Moreover, prior to moving in with his surety in Gamebridge, he resided in Keswick for some 15 years. He said he had many friends there, but things took a bad turn after he was charged in 2008 with the offences involving DP. He has not wanted to face people in his community since those charges were laid.

[78] Ultimately, in my view, any liberty restrictions related to the SV charges have been minimal.

Anxiety and Other Health Issues

[79] D.M. suffers from a number of health issues, unrelated to the charges he now faces. He has had Type II diabetes for the past 5-6 years. He has elevated cholesterol, hypertension and B-12 deficiency. He also suffers from a number of issues purportedly brought on by the charges laid in 2008, including depression and anxiety. He suffered a heart attack in 2008. He had a panic attack at New Years in 2009 brought on by the stress of the DP Charges. When the Preliminary Hearing began in November 2009, he suffered a second heart attack. During his trial on the DP Charges, he suffered a transient ischemic attack, which he described as a mini-stroke, and had to attend the hospital. Later that same night, he learned he was going to be charged with breach of recognizance and suffered a further panic attack and had to be taken back to the hospital.

[80] In the fall of 2011, D.M. was diagnosed with depression and anxiety. He has had difficulty sleeping since he was charged in 2008. He cries daily. He feels nervous and afraid constantly. At paragraph 44 of his Affidavit, D.M. said “[m]y stress, anxiety, depression and nightmares began when I was charged in 2008 with offences against my stepdaughter and grandchildren. I thought that once I finally cleared my name on those charges, I would feel better. But ever since I was found not guilty on those charges in December 2010, I have only felt worse.”

[81] D.M. confirmed, in cross-examination, that although he began suffering from depression and anxiety in 2008, he did not see a doctor about it until recently, only a short time prior to this application proceeding. He has produced no medical evidence documenting his condition(s). He admitted that the accusations involving DP and his grandchildren “turned his world upside down.” He is very saddened that he is not able to spend time with his grandchildren. He thinks a lot about his grandchildren and not seeing them, and it breaks his heart.

[82] I accept that D.M. has significant health issues. I believe they were exacerbated by the charges laid in 2008 and the aftermath of those charges, including a 6 month period of incarceration following the charges for breach of recognizance. I do not accept that any of his health conditions were caused by the re-laying of the charges in April 2010. D.M. has failed to establish such a causal connection. Nevertheless, his health issues must still be taken into account when considering the reasonableness of any delays in this case. Such delays may be more prejudicial to a person suffering numerous health problems, than they would be for an otherwise fit and healthy individual.

Loss of Evidence

[83] D.M. argues that his ability to present a full answer and defence has been prejudiced in three significant ways by the delay in this case. First, by reason of the inevitable fading of memories. Second, because an exculpatory statement he provided to the police in 1986 has been lost. Third, because an important witness, Rick MacDonald of the CAS, cannot be located.

[84] I will address the third basis of evidentiary prejudice first, because it can be dealt with quickly. D.M.’ counsel recently attempted to reach Mr. MacDonald through the CAS, unsuccessfully. Full stop. I am far from satisfied that Mr. MacDonald “cannot be located.” The most that can reasonably be said is that he has yet to be located.

[85] The matter of fading memories will be problematic for everyone involved in this case. The allegations against D.M. are historical sexual assaults. There are inevitable difficulties with recollection in cases of this nature. The evidence does not persuade me that there are significant issues with fading memories occurring as a result of delays post-April 2010. Memory problems exist because the charged incidents allegedly occurred over 26 years ago.

[86] With respect to Counts 4, 5 and 6, the arrest first occurred in April 2010. Accordingly, the first issue in terms of these counts is whether pre-charge delay is even something the court can now take into account in assessing the s. 11 (b) application. As Lamer J., as he then was, said in Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 S.C. R. 863, at para. 232:

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. In other words, pre-charge delay is relevant to those interests which are protected by the right to a fair trial whereas it is irrelevant to those which are protected by s. 11 (b). Similarly, pre-charge delay may be a relevant consideration under the doctrine of abuse of process in the same manner as any other conduct by the police or the Crown which may be held to constitute an abuse of process.

[87] The following comments of Stevenson, J. in R. v. L.(W.K.), 1991 CanLII 54 (SCC), [1991] 1 S.C.R. 1091, at paras. 27 and 28 are apposite:

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.

[88] Stevenson, J. also cited, with approval, the following comments of Laskin, C.J. in Rourke v. The Queen, 1977 CanLII 191 (SCC), [1978] 1 S.C.R. 1021, at p. 1040-41, which are particularly relevant to the case at bar:

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.

[89] There is no doubt that D.M.’ ability to defend the charges against him is affected in a material way by virtue of the delay between the alleged incidents and the time that the trial actually proceeds. With respect to Counts 4, 5 and 6, however, the delay under consideration is the period from April 7, 2010 to November 2, 2012. In my view, any prejudice resulting from fading memories within that period of time is minimal. That is to say, although there are likely significant degradations in recollection since 1986, the loss of recollection between April 7, 2010 and November, 2012 (i.e. the loss associated with the delay in prosecuting Counts 4, 5 and 6) is relatively minimal.

[90] The situation is different with respect to Counts 1, 2 and 3. I have already found that these are the same offences as the sexual assault charged in 1986. I am entitled to take into consideration all delays from March 1986 until November 2012. It is axiomatic that memories will have faded substantially during that period of time. The question is just how significant the prejudice is to D.M.. I am not persuaded that it is significant prejudice for the following two reasons:

(i) The problem of fading memories cuts both ways. It may very well be that it is more problematic for the Crown, given that the Crown alone has the onus of proving the case beyond a reasonable doubt. As D.M.’ counsel pointed out in argument, witnesses’ credibility and reliability are often bound up in their ability to recall the details of the acts in issue. The complainant’s inability to recall details is a factor the trier of fact is entitled to consider when assessing the credibility and reliability of her evidence;

(ii) D.M.’ position is that the alleged incidents did not occur. Like the complainant, he may not remember details of his activities on a day-to-day basis 26 years ago, but he will certainly have no difficulty recalling that he did not engage in any of the criminal acts alleged.

[91] I am not, in the circumstances, persuaded that the problem of fading memories – due to post-charge delays - constitutes significant prejudice to D.M..

[92] Similarly, I am not presently persuaded that the loss of his exculpatory statement to the police has significantly prejudiced him. The statement was some 3 pages in length. The suggestion in argument was that it was a “lengthy” statement, but I do not consider 3 pages to be lengthy. D.M. indicated that he told the police he did not sexually assault SV. That is likely the most important feature of his statement and he recalls that clearly. Beyond that, he says he was unaware of the specific allegations against him. They had not been particularized by SV and so, presumably, his statement did not contain any details surrounding the specific acts now alleged. It is possible that he made comments in his statement that would refresh his memory about important details now, but that is a speculative possibility, to say the least.

[93] Moreover, as the Supreme Court has indicated in R. v. La, 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680, the assessment of the prejudice of a loss of evidence on trial fairness is often best performed in the context of the trial itself. In other words, left until the hearing of some or all of the evidence. In my view, this is such a case.

Summary of Prejudice

[94] I accept that D.M. has suffered some degree of prejudice due to the length of time it has taken to proceed to trial on the charges now before the court. I have addressed each of his suggested heads of prejudice individually and have not been persuaded that any such prejudice, standing alone, is substantial. I am mindful, however, that I must consider whether the delay in this case – unremarkable as I have otherwise found it to be – is in fact unreasonable in light of the totality of the prejudice suffered by D.M.. I must also consider that, at least with respect to Counts 1, 2 and 3, a strong inference of prejudice arises by virtue of the length of time between the laying of the first charge in 1986 and the expected completion of the trial in November 2012.

[95] At the same time, I must consider the strong societal interest in play. There is a significant societal interest in seeing that the charges in this instance are dealt with on their merits. Sexual assaults against children are a serious societal problem. As Justice Moldaver observed in R. v. D.D., 2002 CanLII 44915 (ON CA), [2002] O.J. No. 1061 (C.A.), “[w]e as a society owe it to our children to protect them from the harm caused by offenders…Our children are at once our most valued and our most vulnerable assets.” That is not to say that society’s interests should permit D.M.’ constitutional rights to be eviscerated. But where the institutional delay is within the Morin guidelines, where the delay is otherwise unremarkable, and where the prejudice to the accused is not substantial, I am not persuaded that the strong societal interest in seeing these particular charges resolved on their merits is outweighed by any prejudice experienced by D.M., inferential or otherwise.

[96] Before leaving this point, I wish to return to the comment of Cromwell J. in R. v. Godin, as above – specifically that it is important not to lose sight of the forest for the trees when engaging in a detailed analysis of a delay application. I have not lost sight of the fact that there is a 26 year delay involved in this case. But it is equally important that the court not simply dismiss this case because, on the surface, the delay is lengthy. This is not a situation where the accused has been facing charges continuously since 1986. Rather than the longest delay case in Canadian history, I think it is more accurate to say that this is the longest gap case in Canadian history. It is necessary to assess the prejudice associated with that gap and with any other delays since the arrest of the accused in April 2010.

[97] In the result, for the foregoing reasons, I find that D.M. has failed to satisfy me, on a balance of probabilities, that his s. 11 (b) right to a trial within a reasonable time has been infringed. I will accordingly turn to his next argument – the alleged abuse of process by the Crown.

II. Abuse of Process

[98] Section 7 of the Charter provides that “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.” D.M. argues that the Crown has, by prosecutorial misconduct, infringed his s. 7 Charter rights.

(i) Is there an Abuse of Process Justifying a Stay?

[99] In R. v. O’Connor, as above, the Supreme Court identified two categories of abuse of process which are caught by s. 7 of the Charter: (1) prosecutorial conduct affecting the fairness of the trial; and (2) prosecutorial conduct that "contravenes fundamental notions of justice and thus undermines the integrity of the judicial process" (para. 73). These same two categories were recently re-affirmed in R. v. Nixon, 2011 SCC 34. D.M. asserts that both categories of misconduct are present in this case.

[100] At the heart of the argument is what D.M. asserts is an undue and unfair delay on the part of the police and the Crown in pursuing the charge of sexual assault against D.M. after it was withdrawn in 1986. First, he argues that trial fairness is affected by the delay. In particular, as a result of fading memories and the loss of his exculpatory statement to the police. Second, he argues that the re-laying of sexual assault charges some 24 years after they were withdrawn offends the community’s sense of fair play and decency.

Trial Fairness

[101] I have already canvassed the matter of fading memories and lost evidence as part of the s. 11(b) analysis. For the reasons set out above, I am not persuaded that trial fairness is compromised by the fading memories of the witnesses who will appear for the Crown and/or the Defence. Difficulties with recollection will be one of the factors considered by the trier of fact, when assessing the credibility, and, more significantly perhaps, the reliability of testimony. From the perspective of fading memories, this case is no different than any other case of historical sexual assault.

[102] The loss of an exculpatory statement is an unfortunate circumstance specific to this case. That said, it is critical to keep in mind that a stay of proceedings is an extraordinary remedy. It has a profound effect, obviously, because it prevents the state from prosecuting the criminal charges. Provided there can be a fair trial – and my view is that there can - a judicial stay should only be granted in rare and exceptional circumstances. Moreover, the purpose of a stay is to prevent further damage to the integrity of the judicial system, not to punish past misconduct of the Crown. Accordingly, a stay will only be granted “if the continuation of the prosecution will manifest, perpetuate or aggravate the prejudice caused by the abuse in question”: R v. Regan, 1999 NSCA 165, [1999] N.S.J. 293 (N.S.C.A.) per Cromwell J.A. at para. 101.

[103] While I do not believe, for the reasons set out above, that the loss of the exculpatory statement to the police creates substantial prejudice to D.M., that view may change in the face of part or all of the evidence at trial. As I will explain in more detail below, the most appropriate time to assess any prejudice arising from the loss of the exculpatory statement will be during or at the end of the evidentiary portion of the trial. Certainly, at this stage, a stay of proceedings based on the loss of the accused’s statement would not be appropriate.

Fair Play

[104] D.M.’s counsel characterized the circumstances of this case as a decision on the part of the Crown to take a “time out” and wait on charges until they had a greater likelihood of success. He said this exercise of prosecutorial discretion was fundamentally unfair to D.M., who, as an accused person, could never similarly call a “time out” and wait 20-plus years to proceed when he thought his chances of success were greater.

[105] Counsel also compared the circumstances of this case to cases where the government attempts to initiate or continue with proceedings after having led a person to believe that the proceedings have been resolved. This argument may be dealt with briefly because it is factually unsound. D.M.’ testimony was that, although he knew the charge had been withdrawn in 1986, he did not know what that meant. He did not know whether the police could proceed on it again and he did not seek legal advice about it. This is not a case, on the evidence, where D.M. believed that the charge had been resolved on a full and final basis. He simply did not know, one way or the other.

[106] Ultimately, I do not accept counsel’s characterization of the circumstances of this case. In my view, what happened in this case reflects SV’s choices about the timing of her complaints. The initial charge in 1986 arose after SV’s mother allegedly saw D.M. exposing his genitals to SV in the kitchen of their home. SV did not then, nor during any subsequent questioning by the police or CAS, volunteer any details about a sexual assault. It was not until early 2010 that SV, in response to a police inquiry, provided the details that form the substance of the charges now before the court.

[107] The comments of Stevenson J. in R. v. L.(W.K.), as above, are again apposite. Presumably, SV was not psychologically prepared to come forward with allegations of abuse in 1986. The fact that she chose to provide details of alleged abuse only in 2010 does not undermine the integrity of the judicial process, nor does it contravene fundamental notions of justice.

[108] To be fair, the Defence argument was focussed on the failure of the police to essentially monitor SV’s readiness to provide the details of alleged abuse. There is no argument that the Crown’s decision to withdraw the charge when it did was unreasonable. The argument is that the police “dropped the ball” and forgot about SV – that they were “cavalier” in following up on the case. SV came back to their attention only in the context of the prosecution of the DP Charges. I agree that the police clearly stopped investigating this case at some point after the withdrawal of the charge in May 1986. Precisely when is impossible to know on the record now before the Court. Officer Jenkins, as I indicated, testified at the Preliminary Inquiry that the protocol in 1986 for interviewing children was to delegate the interview to a social worker at the CAS. The evidence demonstrates that SV continued to meet with a CAS worker well after the withdrawal of the charge and that social worker regularly asked SV whether she wished to discuss the alleged abuse. She steadfastly maintained that she did not. At some point a decision was obviously made that SV should be left alone to reveal details of alleged abuse in her own time. The police cannot be faulted for such a decision. It is surely not their mandate to badger young complainants into providing details of criminal acts. In my view, the evidence does not support a finding that the police were cavalier in their approach to this case.

[109] I am not, in the result, satisfied that the actions, or inactions, of the Crown and/or the police in this case contravene fundamental notions of justice. The s. 7 application fails.

[110] I turn now to the third and final argument of the accused: that the loss of his exculpatory statement warrants a stay of proceedings.

III. Lost Evidence

(i) Has Relevant Evidence Been Lost?

[111] D.M., like anyone else charged with a criminal offence in Canada, has the right to know the case against him – the case he must meet – before he is required to respond: see R. v. Rose, 1998 CanLII 768 (SCC), [1998] 3 S.C.R. 262. In other words, he is, amongst other things, entitled to receive full disclosure of the Crown’s case against him. The Crown’s duty to disclose “gives rise to an obligation to preserve relevant evidence”: R. v. La, 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680 at para. 17. Sometimes, however, evidence gets lost. That’s apparently what happened in this case. D.M. made a three page exculpatory statement to the police in the spring of 1986. There is no question that it is relevant to these proceedings. The police have been unable to locate it.

[112] Officer Jenkins described the circumstances of the lost statement in his testimony at the Preliminary Hearing. He said that the police kept a file – a Crown brief – into which witness statements, a synopsis of the case and D.M.’ statement were placed. After the charge against D.M. was withdrawn, the Crown brief was placed into something called a “deferred file”. A deferred file was one that was not active, but would nevertheless be retained. It was not to be destroyed. Storage issues within the OPP, however, necessitated that files, including the deferred file on D.M.’ case, were moved three times to different facilities in the years following the withdrawal of the charge. Ultimately, the file could not be located when needed.

(ii) Unacceptable Negligence

[113] The Supreme Court has recognized that, owing to human frailties, evidence occasionally gets lost: R. v. La, as above, para. 20. If the Crown is able to satisfy the Court that the evidence has not be destroyed or lost owing to unacceptable negligence, then the duty to disclose has not been breached. As Sopinka J. described in La, at para 21, “the main consideration is whether the Crown or the police (as the case may be) took reasonable steps in the circumstances to preserve the evidence for disclosure.”

[114] The required standard of care in handling and preserving evidence increases as the relevance and probity of the evidence increases. There is no dispute that D.M.’ exculpatory statement was relevant. How probative it may have been is debatable, particularly in light of the fact that none of the particulars of the alleged sexual assault were known at the time the statement was given. That said, the Crown did not adduce evidence at the hearing of the application, apart from the content of Officer Jenkins’ testimony at the Preliminary Hearing (under cross-examination), as to the steps taken by the police and/or Crown to preserve the evidence. The onus is on the Crown to establish that the evidence was not lost due to unacceptable negligence. The Crown has failed to meet that onus on the limited evidence before me. That is not to say that there was unacceptable negligence in this case. Only that the Crown has failed to establish that there wasn’t.

[115] In the result, I find that a breach of the duty to disclose the statement of the accused has been established. The next step is to consider the remedy - an assessment that necessitates a consideration of the impact of the breach on trial fairness. More particularly, on just how serious the impact is on the ability of the accused to make full answer and defence.

(iii) Full Answer and Defence

[116] The remedy sought - a stay of proceedings - is a remedy of last resort and is only appropriate in the clearest of cases, where the ability of the accused to make full answer and defence has been irremediably prejudiced.

[117] The vantage point of a judge hearing a pre-trial motion is obviously far different that the that of a trial judge who has had the benefit of hearing all, or substantially all, of the evidence in the case. Generally, unless the appropriateness of a stay is obvious, a trial judge should reserve a decision on a stay application based on lost evidence until the end of the trial: R. v. La, as above, at para. 27. In this instance, a stay is not an obviously appropriate remedy. Once the evidence has concluded, the degree of prejudice may be more readily evaluated and an appropriate remedy fashioned.

[118] As Laskin J.A. said in R. v. Knox, 2006 CanLII 16479 (ON CA), [2006] O.J. No. 1976 (C.A.) at para. 26:

The appropriateness of a stay was not obvious. Thus, the trial judge should not have ruled on it at the beginning of the trial. Instead, he should have reserved on the motion and heard the evidence so that he could better evaluate the prejudice to the defence caused by the lost evidence.

[119] In my view, it would be an error for the Court to make a binding ruling at this stage, evaluating the prejudice to D.M. arising from the loss of his statement. Accordingly, while I have found a breach of D.M.’ constitutional right to make full answer and defence, due to the loss of his statement, I reserve my decision on the appropriate remedy until the evidence has been heard at trial.

CONCLUSION:

[120] In summary, I am not persuaded that there has been a breach of D.M.’ right to be tried within a reasonable time, notwithstanding the peculiar facts of this case. Moreover, I do not find that there has been prosecutorial misconduct amounting to an abuse of process. On the other hand, I have found that there was a breach of D.M.’ constitutional right to make full answer and defence based on the loss of his exculpatory statement. A determination on the appropriate remedy for the breach is reserved until the evidentiary portion of the trial is complete.

Boswell J.

Released: January 11, 2012

[^1]: An order prohibiting disclosure of the identity of the complainant has not been made, but out of an abundance of caution, and anticipating that such an order will be sought, I have protected the complainant’s identity in this ruling. [^2]: Periods 1 and 2 apply only to counts 1, 2 and 3. The total time period in review for counts 4, 5 and 6 begins April 7, 2010 and ends November 2, 2012, for a total of 31 months. [^3]: Two months of intake time apply exclusively to Counts 1, 2 and 3 [^4]: Applicable only to Counts 1, 2 and 3