COURT FILE NO.: CR-10-0070-MO

DATE: 2012-12-04

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Elaine Burton and Stacey Hamilton, for the Respondent

Respondent

• and -

DONALD MILANI

Seth P. Weinstein, for the Applicant

Applicant

HEARD: October 22–24, 2012,

at Thunder Bay, Ontario

Regional Senior Justice H.M. Pierce

Reasons on Stay Application

Introduction

[1] This is an unusual case. The applicant, Donald Milani, seeks a stay of proceedings against him on the grounds that his right to be tried within a reasonable time, guaranteed by section 11(b) of the Canadian Charter of Rights and Freedoms, has been infringed. Alternatively, he submits that his s. 7 rights to trial fairness under the Charter have been infringed by a 20 year period of delay in prosecuting the case, justifying a stay of proceedings. By direction of the court, the application for a stay was heard in advance of the trial, which is scheduled for January 14, 2013, before a jury.

[2] Mr. Milani is 64 years old and has no criminal record.

[3] The history of this case tracks the history of the development of DNA analysis as a forensic tool. When the applicant was first charged with the offences for which an indictment has now been preferred, DNA analysis was not available to investigators. In the course of these proceedings, it became available, and changed investigators’ approach to the case. The applicant says that investigators did not proceed with dispatch once the technology was available to them.

The Chronology

[4] The chronology of the case is not in dispute. Mr. Milani is charged with 19 counts relating to allegations of home invasion sexual assaults on four women in incidents between April, 1985 and December, 1987. The complainants reported the incidents immediately and investigators attended the scenes to collect evidence, including samples of bodily substances believed to have originated with the perpetrator. The police sent these samples to the Centre for Forensic Sciences (“CFS”) for analysis. CFS reported in 1985, 1986, and 1987 that the assailant had type “A” blood and was a non-secretor, meaning that his semen did not contain spermatozoa.

[5] The details of the alleged offences are as follows.

[6] On April 20, 1985, an intruder is alleged to have broken into the home of E.N. in the early morning hours while she slept. She awoke to find a masked assailant, armed with a knife and shining a flashlight in her eyes. He tied her up, entered the bathroom, and returned to the bedroom where he demanded reciprocal oral sex, followed by sexual intercourse. The intruder is also alleged to have stolen $21 from E.N.’s purse before he left.

[7] Police seized a sheet and bedspread from the scene. These items were sent to CFS which reported results in 1985. CFS opined that both linens contained semen without spermatozoa. The sheet was not tested again. The bedspread was submitted for re-testing in 1998 and 2009. In 2009, CFS reported that the applicant could not be excluded as the source of the DNA found on the bedspread.

[8] The police also located a footwear impression at the scene of this incident. The footprint was not examined until 2009 when it was determined that the footwear seized from the applicant’s residence could not be excluded as the source.

[9] The complainant, E.N. died in 2006. A transcript of her testimony from the preliminary inquiry is available.

[10] On September 18, 1985, a man allegedly broke into the home of C.S. in the early morning hours. She heard a noise and, armed with a hand gun, encountered the intruder in the hallway. His face was wrapped with a white towel below his eyes. He told her not to shoot and ran to the basement. She followed him to the basement where the intruder threatened her with a knife. She ran upstairs, armed herself with a shotgun and fled the residence.

[11] Police seized a portion of the towel containing some hair but no DNA profile was ever extracted from it. Police also recovered the applicant’s fingerprint from the basement window of the C.S. residence.

[12] On September 9, 1986, a man allegedly broke into the home of J.B. while she was asleep in the early morning hours. She wakened to the sound of running water in her bathroom. She observed a man who was masked and carrying a flashlight. He demanded reciprocal oral sex followed by sexual intercourse. The intruder bound her feet and ransacked her purse, taking nothing, and then departed.

[13] Following this incident, police seized underwear containing semen, vaginal swabs, and a sheet with trace amounts of spermatozoa; however, DNA traces were minimal and later deemed unsuitable for comparison.

[14] A second incident involving J.B. occurred on July 11, 1987, again in the early morning hours. The barking of a dog awakened her. A masked man carrying a flashlight confronted her. Allegedly the intruder blindfolded her and demanded repeated oral sex. This was followed by sexual intercourse. Before the assailant left, he told the complainant he would not bind her feet “like the last time.” He took $67 from her purse before he left.

[15] The applicant is known to have had a vasectomy. In 1987, CFS opined that the applicant’s non-secretor status placed him within approximately 2% of the male population who could have committed the offences relating to E.N. and J.B.

[16] Police seized a sheet containing semen from the second J.B. incident. It was not submitted for analysis.

[17] Police also located tire tracks and footprints at the scene of the second incident involving J.B. In 1987, police concluded that the applicant had tires and footwear consistent with these impressions.

[18] On December 3, 1987, the last of the alleged attacks took place. S.R. and her co-worker, A.C., returned to S.R.’s home about 12:30 a.m. They encountered a masked intruder, allegedly armed with a handgun. The women were blindfolded and bound and placed in separate bedrooms. The intruder visited the bathroom, then demanded oral sex from S.R. at gun point. Then he engaged in sexual intercourse, followed by a further act of oral sex. The intruder then demanded oral sex from A.C., who refused. During this encounter, S.R. tried to escape. The intruder caught her, re-bound and blindfolded her, and strangled her. Before leaving, the assailant stole money from both women’s purses.

[19] Police were not able to obtain evidence of forensic value from the assault on A.C. However, they obtained a semen sample deposited on S.R.’s arm. When the semen sample was tested, CFS reported on July 4, 1988 that it was lacking in spermatozoa. Police also seized an empty beer bottle from the residence, from which the assailant is alleged to have drunk. The beer bottle was examined for finger prints but not initially tested by CFS. It later became pivotal evidence in the police investigation.

[20] Police also found tire tracks at the scene; in 1987, they concluded the tracks were consistent with impressions from the applicant’s tires. The tire tracks were identified at the scene of the second J.B. incident and the S.R. incident. On December 8, 1987, the applicant provided a voluntary sample of saliva to the police.

[21] Between December 21, 1987 and January 27, 1988, items seized from the scene of the assaults on A.C. and S.R. were sent to CFS for analysis. The beer bottle was not submitted at this time.

[22] The applicant was arrested on December 22, 1987 and charged with offences related to sexual assaults on five complainants. Implicit from the record is that an information alleging these charges was sworn at this time. Search warrants were executed in December, 1987. Running shoes, tires, balaclavas similar to those described by the complainants and a sample of the applicant’s hair were seized. The running shoes had tread marks similar to the foot prints observed at the J.B. residence. The tires were measured for width and wheel base compared to the applicant’s truck.

[23] In February, 1988, police obtained an engineer’s report that opined that the tire tracks left at the residences of J.B. and S.R. were made by the same brand, model and size of tire found on the applicant’s vehicle and that no other brand of tires used the same tread pattern.

[24] On July 4, 1988, CFS reported that the semen taken from S.R.’s arm lacked spermatozoa. This sample indicated he was a non-secretor, consistent with the samples taken from the alleged assaults on E.N. and J.B.

Court Proceedings

[25] The Crown proceeded to preliminary inquiry on all charges, relying on similarities between the incidents to link the applicant to each incident.

[26] On November 27, 1989, the applicant was committed to trial on the C.S incident. However, the preliminary inquiry judge refused to commit the applicant to trial on the E.N., J.B., S.R. and A.C. incidents, holding that there was insufficient evidence to justify a committal. The judge determined there was not enough similarity between the C.S. incident and the other incidents to warrant a committal based on similar act evidence. He found that the same person was responsible for the attacks on E.N., J.B., S.R., and A.C. but he was not satisfied that the evidence identified the applicant.

[27] On July 5, 1990, the applicant was acquitted at trial of all charges relating to C.S. Those charges are not before the court.

[28] As a consequence of further evidence, the Deputy Attorney General for Ontario preferred an indictment against the applicant on July 23, 2010 in relation to the charges that were discharged at the preliminary inquiry. The applicant was arrested and released on August 17, 2010.

The Investigation Following Discharge at Preliminary Hearing

[29] Detective Inspector J.R. Welsch of the Ontario Provincial Police was in charge of the investigation. After the discharge of the applicant at preliminary inquiry on most counts, he sent a memorandum dated December 11, 1989 to the Director of the Criminal Investigation Branch, reporting on the discharge. In the memorandum, he highlighted that the Crown would not seek a preferred indictment unless the applicant could be linked to the crimes by DNA evidence.

[30] Detective Inspector Welsch also advised that, after consultation with the CFS, the samples were deemed insufficient for the contemporary state of DNA analysis but that comparison might be made within a year. Further, CFS had agreed to retain the exhibits pending refinement of DNA analysis, or in the event that a blood sample could be obtained from the applicant. The Crown Attorney was copied on this report. This was the first discussion of the possibility of using DNA analysis in this case.

[31] In Canada, the first use of DNA for forensic purposes occurred in the late 1980’s or the early 1990’s with the advent of Restriction Fragment Length Polymorphism, or the RFLP technique. CFS began DNA testing with this technique in 1990 RFLP demanded relatively large quantities of bodily fluids for testing and would not have been appropriate to analyze saliva left on the beer bottle. With respect to semen, the RFPL technique could not then have been used for analysis where there were no spermatozoa. At the time, RFPL was the only technique for analysis. It is no longer in use.

[32] Until Detective Inspector Welsch was re-assigned to other duties in 1991, he kept track of developments in the DNA field through his contacts with Mr. Erickson, the biology section head at CFS. It was his understanding that police had too small a sample for analysis using the RFLP techniques then available. From 1989 – 1995, there were also incidental discussions with the Assistant Crown Attorney with carriage of the case. The Crown had not instructed Detective Inspector Welsch to make this case a priority. As the officer testified, it was a priority, but it was treated as a cold case and not distinguished from any other cold case; there were lots of priorities.

[33] From April, 1991 to September, 1993, the case was re-assigned to Detective Inspector Brennan. During this time, there was not much in the way of active investigation on the file. I accept that there was not much to do. Detective Inspector Welsch resumed carriage of the file in October, 1993 and reviewed and monitored it from time to time until his retirement in 2003. During that interval, he consulted with CFS from time to time in order to monitor the development DNA science.

[34] Andrew Greenfield, forensic biologist and Deputy Director of the CFS Northern Regional Laboratory, testified about the evolution of DNA analysis and the specific experience with this case at his laboratory. CFS is a part of the Ontario Public Service. It is an independent body used by police and others for forensic analysis. While private laboratories exist, Mr. Greenfield noted that it is practical for police to use CFS unless they require a test that is not available or a technique that cannot be validated.

[35] The concept of inheriting genetic information came under discussion in scientific circles in 1953. Forensic DNA analysis, a subset of that science, became known in the mid-1980s. It was first used for forensic purposes in the United Kingdom in 1986. However, the science took some time to become understood and applied around the world. When this case was originally under investigation between 1985 - 1988, DNA analysis was not being performed at CFS in Ontario. Only serology tests, such as blood typing, were available. That is why the police in this case were originally only able to determine that the perpetrator was a non-secretor.

[36] The next development in the analysis of DNA at CFS was a polymerase chain reaction (“PCR”) based technique called DQa/Polymarker. With this technique, the analyst replicated DNA fragments used to compile a DNA profile. This technique required less DNA material for analysis than the RFPL technique. However, Mr. Greenfield observed that in the early 1990’s when this technique was available, CFS did use this technique to examine items such as beer bottles.

[37] The next step in forensic DNA analysis was the use of Short Tandem Repeat (“STR”) techniques. This technology was developed in the early 1990’s, and published in 1993. However, it didn’t come into use at CFS in Toronto until 1995 when the RFPL technique was gradually being phased out.

[38] The STR technique did not require as much DNA as RFPL and was suitable for use on seminal fluid that did not contain spermatozoa, as was the case here. Mr. Greenfield stated that STR is a comparison technique; if there is a sample for testing, it is not possible to cross between RFPL and STR as “the two results don’t talk to each other.” Testing could have been re-done using the new technique if there was enough DNA left to test.

[39] Meanwhile, the case against the applicant remained open. In November, 1995, the Assistant Crown Attorney considered whether a plea of autrefois acquit could be made in connection with the charges that were discharged at the preliminary inquiry, and concluded that such a plea was not available to the applicant as a discharge did not constitute a final disposition of a charge. He reported his conclusion to Detective Inspector Welsch.

[40] The law was also changing to keep up with the advent of DNA analysis. The Assistant Crown Attorney advised Welsch that police could now meet the criteria under s. 487.04 of the Criminal Code to obtain a warrant to collect DNA. As of July 13, 1995, police had a legal mechanism to obtain a DNA sample from an accused person. However, until 1997, Detective Inspector Welsch believed that blood was required for DNA analysis; he learned subsequently that saliva would probably suffice.

[41] The officer believed that the applicant was involved in all offences, based on his modus operandi, the absence of spermatozoa in the seminal fluid seized at each site, the foot wear and tire impressions, and other circumstantial evidence.

[42] Late in 1997, Detective Inspector Welsch learned that DNA analysis had become available. On February 4, 1998, he decided to re-submit exhibits for analysis by CFS. The semen stain from S.R.’s arm was sent for analysis. CFS reported on December 4, 1998 that semen lacking spermatozoa was analyzed and the applicant could not be excluded as the donor of the semen. Based on the DNA profile extracted at 10 points of comparison and the population of Ontario, the probability that the applicant was the donor was estimated at 1 in 250 Caucasians in Ontario.

[43] On February 6, 1998, the bedspread from E.N.’s residence was sent to CFS for analysis. CFS reported on November 30, 1998 that DNA on the bedspread originated from at least two sources but that no DNA profile could be obtained from the male donor.

[44] Also on February 6, 1998, police re-submitted a sheet from the second alleged assault on J.B. for analysis. CFS reported on December 4, 1998 that the applicant could not be excluded as a donor of the seminal fluid lacking in spermatozoa; as well, it estimated that, based on the population of Ontario, the probability that another Caucasian male was the source of the DNA was 1 in 22.

[45] The results of these analyses received in late November and early December, 1998 confirmed the belief of the police that the applicant was the perpetrator. However, they were disappointed in the probabilities generated by the testing and the absence of a DNA profile in one instance. Detective Inspector Welsch characterized the results as “not overpowering evidence.” After discussions early in 1999, police decided to await improvement in DNA analysis. At that time, Y-chromosome testing was not yet available.

[46] Mr. Greenfield testified that there would not have been sufficient DNA present for a DNA analysis using the RFPL technique. When the PCR technique became available to replicate DNA fragments in order to create a DNA profile, scientists were able to analyze smaller samples of DNA. However, he noted that “CFS had not explored this technique’s efficacy or usefulness on small amounts of DNA derived from items like beer bottles.” He said that CFS did not routinely analyze beer bottles using this technique in the early 1990’s. He testified that if the beer bottle had been submitted for analysis in 1998, provided there was sufficient DNA material left on the bottle that was not degraded, an STR analysis could be made and a DNA profile created. He noted that CFS does not analyze every item submitted; the choice of analysis is made based on the case history submitted by police.

[47] The development of Y-STR analysis was important to the quality of the forensic testing available for semen samples lacking spermatozoa. In 2001, Detective Inspector Welsch was advised by a CFS scientist that Y-STR testing of that time did not produce particularly discriminating results as the analysis was limited to 6 loci. He was encouraged to check back in a year. He checked in 2002 and again before his retirement in 2003. He was advised there was no significant advancement in the science of DNA.

[48] CFS started using Y-STR analysis in 2005. Mr. Greenwood testified that police would have been able to request Y-STR analysis as of that time; however, he was not specific about when in 2005 this technique became available. He explained that Y-STR testing is better than generic STR testing for generating DNA profiles from semen samples that do not contain spermatozoa because it analyzes DNA from other non-sperm cells present and targets only male DNA found in the Y chromosome. Generic STR testing, on the other hand, examines DNA over a variety of chromosomes.

[49] The limitations of STR analysis before the development of the Y-STR technique meant that reliable profiles of semen samples were not available until 2005. For the purposes of the delay analysis, and lacking more specific evidence, I deem that Y-STR was available to police by June, 2005.

[50] There was no protocol for CFS to communicate to police forces about scientific advances; this communication was limited to conferences and “all-chiefs” memoranda. Otherwise, inquiries about the state of the science were left to the initiative of individual officers.

[51] Following the retirement of Detective Inspector Welsch, the case was assigned to Detective Inspector Horne. There were no developments on the file until the case was assigned to Detective Sergeant B. McCallum in June, 2006. His task was to review the file in its entirety, organize the reports in accordance with the newer major case management style, and to look at it with fresh eyes. This he did.

[52] The focus of the case was to obtain DNA analysis of the samples obtained prior to 1998. Detective Sergeant McCallum stated that there was no indication of delay in the handling the case and no reason why expedited reports should be requested compared to other “cold cases.” By July 28, 2006, CFS agreed to re-examine the exhibits for DNA.

[53] On September 19, 2006, Detective Sergeant McCallum, an identification officer, and three other senior officers discussed the case. They identified items to be sent for analysis, including new items. Significant to this review was their decision to send the beer bottle to CFS for testing. It had not been analyzed before. The police also decided to re-submit the bedspread from E.N.’s bed and sheets from J.B.’s residence as well as saliva samples from the applicant. The identification officer was assigned to make the submissions.

[54] Detective Sergeant McCallum anticipated the items would be sent to CFS shortly after the September 19th meeting. In following up, he was surprised to learn that they were not. In fact, the items identified were not submitted to CFS until October 15, 2007, more than a year later. He said, candidly, that he did not know the reason for the delay.

[55] CFS reported on the items submitted for J.B.’s investigation on November 14, 2008. There is no explanation, either from the police or CFS, for the reason why the report was delayed for more than a year after submission. Mr. Greenfield testified that a gap of 12 – 13 months is outside the CFS time frames for reporting. Mr. Greenfield also commented that the CFS delay in reporting on items received on October 15, 2007 until February 13, 2009 represented an exceptionally long turn-around. He stated that delays in reporting never exceeded a year. In 2008 – 2009, CFS was attempting to report in less than 3 months.

[56] Currently, CFS attempts to report on 85% of cases within 90 days. Mr. Greenfield explained that a turn-around time of less than 2 months with no priority ranking is good and from 60 – 90 days if the case is complex and there are many items to be analyzed.

[57] Mr. Greenfield could not locate a police request to expedite analysis in the CFS file. He stated that CFS will expedite requests for reports where there is an issue of public safety or a court date pending.

[58] Detective Sergeant McCallum received information from Detective Inspector Horne in June, 2008 that a saliva sample from the applicant was too deteriorated to analyze. CFS asked for a new sample. It is not known why it took from October, 2007 to June, 2008 to pass this information to McCallum.

[59] Detective Sergeant McCallum noted on July 3, 2008 that the applicant was in hospital. The police decided to obtain his cast-off saliva sample, but had to wait until the applicant was out of hospital to do so surreptitiously. By September, 2008, the police had the applicant’s saliva sample from a discarded cigarette.

[60] On November 14, 2008, the definitive evidence the police had been looking for arrived. CFS reported that the applicant’s DNA was identified on the beer bottle seized at the home of S.R. The report stated, “The probability that a randomly selected individual unrelated to Donald Milani would coincidentally share the observed DNA profile is estimated to be 1 in 18.8 billion.” The applicant’s DNA was also associated with semen stains left on S.R.’s skin.

[61] On November 14, 2008, CFS also confirmed that the applicant could not be excluded from the source of semen on the sheet seized from J.B.’s residence. The estimated probability that another Caucasian man was the source of the DNA was 1 in 820 which compared to the previous probability estimated at 1 in 22.

[62] Before seeking a preferred indictment, the police needed to know whether the complainants would still be willing to testify. The surviving complainants were contacted in December, 2008 and January, 2009. By this time, E.N. had died. The complainants agreed to cooperate.

[63] In January, 2009, the police decided to seek a preferred indictment from the Attorney General. Detective Inspector Horne directed that, in support of this application, a complete disclosure package be readied for presentation to the Crown. A process began to collect officers’ notes, upgrade the expert report on footwear impressions, and tie up loose ends.

[64] On February 13, 2009, CFS reported on re-testing of E.N.’s bedspread received October 15, 2007. It concluded that there was a mixed sample of semen from two men on the bedspread. A further sample from E.N.’s husband was requested in order to interpret the mixed profile. That sample was obtained on July 20, 2009. On August 14, 2009, CFS reported that the applicant could not be excluded as a source of the DNA found on E.N.’s bedspread. The probability that a randomly selected Caucasian male unrelated to the applicant would share the DNA profile extracted was 1 in 671.

[65] In March, 2010, a police witness completed his report on the tire and footwear impressions left at the homes of E.N. and J.B. The analyst concluded the footwear seized from the applicant was similar in design and pattern to impressions left the scene. The tire impressions left at J.B. and S.R.’s residence were also comparable to the unusual tire tread on the tires seized from the applicant.

[66] On March 8, 2010, the police proposed a preferred indictment to the Crown. The Crown agreed and applied to the Attorney General. On July 23, 2010, a preferred indictment issued. The applicant was arrested on August 17, 2010. He was released promptly on bail. Trial before a jury is set for January 14, 2013 for 3 weeks.

Positions of the Parties

[67] The applicant submits that the clock starts running for section 11(b) Charter analysis as of the date of his original arrest on December 22, 1987 such that the total delay from charge to commencement of trial is 25 years and 24 days. He does not claim institutional delay as a factor in this case. Specifically, the applicant submits that the period from 1987 to 1995 was inherent time necessary to permit the advancement of DNA science. The applicant also submits that the period between 1995 – 2010 constitutes unreasonable delay. The applicant argues there is unreasonable delay attributable to the Crown arising from:

• the failure of police to request further testing between 1995 to 1997, a delay of 24 months

• the failure of police to submit the beer bottle for analysis in 1998 instead of 2008, a delay of 120 months;

• the delay by police in submitting items for testing in October, 2007 after a decision was made identifying these items in September, 2006, a delay of 13 months;

• the failure of CFS to report on items submitted in October, 2007 until November, 2008, a delay of 13 months;

• the failure to inform Detective Sergeant McCallum before June, 2008 that a new saliva sample was required from the applicant, a delay of 8 months;

• the time for police to obtain a saliva sample from the applicant, a delay of 3 months;

• the delay from October 2008 to July 2010 in obtaining a preferred indictment, a period of 20 months.

[68] There is no defence complaint about the time requirements from when the indictment was preferred to the date of trial.

[69] The applicant submits that the case was not treated with any degree of priority over the years and submits that the delay in getting the case to trial is much beyond the guidelines in R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771.

[70] The applicant argues that prejudice to his rights must be inferred as a result of the delay in prosecuting the case against him, to the extent that no remedy short of a stay of proceedings would redress the prejudice to him or to the integrity of the legal system.

[71] Alternatively, the applicant submits that his rights to a fair trial guaranteed by s. 7 of the Charter have been infringed such that to proceed with the trial would constitute an abuse of process. He contends that the delay in making the decision to prefer an indictment is an abuse of process, but does not suggest that the decision itself is an abuse of process.

[72] The Crown submits that this case should be classed as a “cold case,” rather than an active one and argues that it got prompt and frequent attention. It contends that the court should not “micromanage” the police investigation, but that the police should be entitled to present their case for a preferred indictment when all of the necessary evidence to proceed is available.

[73] It is the Crown`s position that time before the indictment was preferred should be considered pre-charge delay and not counted against the Crown for purposes of the s. 11(b) analysis. The Crown contends that time runs from the date the indictment was preferred.

[74] Specifically, the Crown argues that there was no point in police re-submitting seminal fluid for analysis before the development of STR analysis in 1996. Further investigation was limited until Y-STR analysis became available in 2005. In 2006, the police renewed their investigation.

[75] The Crown concedes the police investigation was “off the rails” from 2006 – 2007 when items identified for analysis were not submitted to CFS, but Detective Sergeant McCallum got things back on track. As soon as he knew that a saliva sample from the applicant was required, he set about securing one.

[76] The Crown submits it would be unreasonable to seek expedited analyses from CFS when there was no public safety issue and no pending trial date. The applicant was not actively under charges; the Crown had no means to compel his attendance at court; he was not on bail conditions; there was no stress associated with an on-going investigation as there was no evidence the applicant knew the investigation was continuing. As well, he was not subject to incurring legal fees or to stigma associated with charges.

[77] The Crown argues that a stay is a remedy that should be reserved for the clearest cases and that one should not be imposed because the forensic value of DNA on a beer bottle was not immediately recognized in the early days of DNA analysis. As well, the Crown argues this is a complex case having multiple complainants; multiple investigations that were merged; multiple expert reports and multiple submissions required to be pieced together. Additionally, the Crown submits that the police did not act with malice toward the applicant; nor was the case put aside and forgotten.

[78] As to prejudice, the Crown submits that the applicant lived as a free man. It contends that there is no evidence of actual trial prejudice. While there are two deceased witnesses, these are Crown witnesses. There is no loss of evidence precluding a fair trial. Any witness with evidence about the beer bottle is available to testify and be cross-examined.

[79] Finally, the Crown submits there are no time limits circumscribing the Attorney General’s exercise of discretion to prefer an indictment.

The Law

[80] The burden is on the applicant to prove, on a balance of probabilities, that his Charter rights under ss. 7 and 11(b) have been breached.

The Right to be Tried within a Reasonable Time

[81] Section 11(b) of the Canadian Charter of Rights and Freedoms provides:

Any person charged with an offence has the right

(b) to be tried within a reasonable time…

[82] The Supreme Court of Canada analyzed the content of this protection in R. v. Morin. They held that the primary purpose of the guarantee is to protect an individual’s rights to security of the person; his right to liberty; and his right to a fair trial. Mr. Justice Sopinka explained the content of the right at para. 28:

The right to security of the person is protected in s. 11(b) by seeking to minimize the anxiety, concern, and stigma of exposure to criminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh.

[83] A secondary purpose of s. 11(b) is to protect the public interest by ensuring that alleged offenders are brought to trial promptly and treated fairly. The court noted that trials held promptly enjoy the confidence of the public: para. 29.

[84] Mr. Justice Cory described the importance of speedy trials to the community in R. v. Askov 1990 45 (SCC), [1990] 2 S.C.R. 1199 at para. 46:

It can never be forgotten that the victims may be devastated by criminal acts. They have a special interest and good reason to expect that criminal trials take place within a reasonable time. From a wider point of view, it is fair to say that all crime disturbs the community and that serious crime alarms the community. All members of the community are thus entitled to see that the justice system works fairly, efficiently, and with reasonable dispatch. The very reasonable concern and alarm of the community which naturally arises from acts of crime cannot be assuaged until the trial has taken place. The trial not only resolves the guilt or innocence of the individual, but acts as a reassurance to the community that serious crimes are investigated and that those implicated are brought to trial and dealt with according to the law.

[85] The remedy for a violation of s. 11(b) rights is a stay of proceedings.

When Does the Clock Begin to Run?

[86] The court must first consider when the clock begins to run for purposes of a delay analysis. At issue in this case is whether time runs from the laying of the first information or from the issuance of the preferred indictment. The parties do not agree on this point.

[87] As I have said, the applicant’s position is that the total delay from the initial charge to the trial is 25 years and 24 days. The Crown suggests that the applicant was not “actively under charges,” during all of this period, unaware he was being investigated, and not suffering any stigma or prejudice in the gap between the discharge after the preliminary inquiry and the date the indictment was preferred.

[88] The Crown’s position is that the calculation of time begins at the date the indictment is preferred and any earlier time constitutes pre-charge delay. The Crown submits the time from the indictment to trial is 2 years, 5 months and 28 days. It argues there was no unreasonable delay after the indictment was preferred requiring an analysis by the court as to the reasonableness of the delay.

[89] The Crown argues that, in keeping with R. v. Schertzer, 2009 ONCA 742, [2009] 248 C.C.C. (3d) 270 at para. 128, and R. v. Mills 1986 17 (SCC), [1986] 1 S.C.R. 863 at para. 232, consideration of pre-charge delay properly belongs in an analysis of abuse of process under s. 7 of the Charter, not in a s. 11(b) analysis. See, also R. v. Kporwodu (2005), 2005 11389 (ON CA), 75 O.R. (3d) 190 (C.A.), para. 31. I agree with this submission.

[90] However, I do not agree with the Crown’s position that the time leading up to the signing of the preferred indictment constitutes pre-charge delay which is not to be considered in a s. 11(b) analysis. The Crown’s position is not in keeping with the plain wording of the Charter or the jurisprudence interpreting it. Section 11(b) of the Charter refers to any person charged with an offence.

[91] The Supreme Court of Canada considered the question in R. v. Kalanj 1989 63 (SCC), [1989] 1 S.C.R. 1594. In Kalanj, the accused were arrested, released, and advised that charges would follow. In fact, there was an 8 month delay between the initial arrest and the swearing of the information charging him with offences. The court found that the initial 8 month delay must be considered when assessing s. 11(b) delay. The court held that a person is “charged with an offence” with respect to s. 11(b) rights “when an information is sworn alleging an offence against him, or where a direct indictment is laid against him, when no information is sworn” at para. 16 [emphasis added].

[92] Before Kalanj, the Ontario Court of Appeal applied the same approach in R. v. Antoine (1983), 1983 1743 (ON CA), 41 O.R. (2d) 607 (C.A.). In that case, the accused was arrested and charged with fraud, then released on a recognizance. She was committed to trial after a preliminary hearing. At trial, the indictment was quashed as defective. The Crown laid a second information, correcting the defect and the accused was again committed to trial after a second preliminary inquiry. The court held at para. 25 that, in assessing the delay, time must be calculated from the laying of the initial information to the trial.

[93] The question of delay was also considered in Re: Garton and Whelan (1984), 1984 1867 (ON SC), 47 O.R. (2d) 672 (H.C.J.) at paras. 24-44. In that case, Dr. Whelan was charged with the murder of his wife. The case went to a preliminary inquiry where the accused was discharged. The parents of the deceased asked the Attorney General to review the case. After a review, the Attorney General recommended that there be no further proceedings against Dr. Whelan. At the request of the parents, the case was reviewed a second time by the Attorney General with the same result. The parents next attempted to secure the consent of the court to prefer an indictment against Dr. Whelan. As Whelan had left the country and the court refused to proceed with the parents’ application ex parte, there were further delays until the application for a preferred indictment could be heard on notice to Whelan.

[94] When the application for a preferred indictment was finally heard, the court heard argument about delay in relation to Dr. Whelan’s s. 11(b) rights. The court held that the time for considering whether s. 11(b) rights might be infringed runs from the laying of the initial information. In reaching this conclusion, the court relied on the reasoning in R. v. Boron (1983), 1983 1606 (ON SC), 43 O.R. (2d) 623 at p. 628:

……the word “charged” in s. 11 of the Charter refers to the laying of an information, or the preferment of a direct indictment where no information has been laid.

[95] As Mr. Justice Durno noted in R. v. George, [2005] O.J. No. 3241 (S.C.J.) at par. 57, the reasoning in R. v. Antoine that time starts from the first information was followed in Kalanj; Garton and Whelan; R. v. Padfield, 1992 12802 (ON CA), [1992] 79 C.C.C. (3d) 53 (Ont. C.A.); and R. v. Kane, [1993] O.J. No. 3017 (Gen. Div.). Most recently, the Antoine reasoning was applied in R. v. D.M, 2012 ONSC 221, 251 C.R.R. (2d) 244.

[96] In my view, the case of R. v. R. (G.W.), 1996 613 (ON CA), [1996] 112 C.C.C. (3d) 179 (Ont. C.A.) did not overrule Antoine, to which no reference is made in the court’s reasons. The primary analysis made in R. (G.W.) relates to trial fairness under s. 7 of the Charter. The court distinguished Garton and Whelan and expressed doubt that a charge that may or may not have been laid against the accused years earlier under the Juvenile Delinquents Act related to the same conduct that formed the basis of the charges then before the court. The Court of Appeal made no reference to Kalanj, which also does not appear to have been cited in argument and which would clearly have been binding on the Court of Appeal.

[97] In this case, there is no doubt that the charges arise from the same conduct.

[98] I conclude that the time for assessing delay for purposes of a s. 11(b) analysis runs from the date of the laying of the first information coincident with the applicant’s arrest on December 22, 1987.

The Morin Guidelines

[99] In Morin, the court set out the following factors to be considered when a court assesses whether the delay in trying a case is unreasonable at para. 31:

1. the length of the delay;

2. waiver of time periods by the accused person;

3. the reasons for the delay; including

a) inherent time requirements of the case;

b) actions of the accused;

c) actions of the Crown;

d) limits on institutional resources; and

e) other reasons for delay, and

4. prejudice to the accused.

[100] The court also developed guidelines for the conduct of trials. It suggested a period of 8 – 10 months of institutional delay as a guide to provincial courts and a further period of 6 – 8 months of institutional delay after committal for trial. In laying down these guidelines, the court recognized that inherent time is common to almost all cases and that more complex cases require longer time frames for preparation and for trial.

The Length of the Delay

[101] This is an extraordinary case because it crosses over the time from pre-DNA to post-DNA analysis.

[102] In the case at bar, an information was sworn and the applicant was arrested on multiple charges. The case proceeded to preliminary inquiry, followed by discharges on most counts. The remaining charges continued to trial at which time the applicant was acquitted.

[103] The police investigation continued on the counts that were discharged at preliminary inquiry. The jurisprudence does not turn on whether or not the accused knew he was under investigation. In this case, there is no evidence whether or not the applicant knew the investigation was on-going. I am not prepared to infer that because police talked to the applicant’s former wife late in their investigation, her knowledge of police inquiries can be attributed to the applicant.

[104] A period of 20 years, 7 months and 5 days passed from the discharge after preliminary inquiry until the indictment was preferred. A further 2 years, 5 months and 28 days will elapse from the date of the indictment to the commencement of trial. As I will explain, the applicant does not complain that all of this time represents an unreasonable delay. Nevertheless, I find that the length of the delay warrants an inquiry into the reasons for the delay, as discussed in Morin.

Waiver of Time Periods by the Applicant

[105] The applicant has not waived any time periods in this case.

Reasons for the Delay

1. Inherent Time Requirements

[106] The Crown argues that this is a complex case, involving 19 counts related to home invasion sexual assaults with 4 complainants. It submits that significant forensic and expert evidence is required. This included significant preparatory time some of which included time to permit the science of DNA analysis to evolve. It disputes that the entire delay should be attributed to the Crown and suggests that any delay is simply attributable to inherent time requirements for the case.

[107] The applicant submits that although the charges against him are serious, the primary issue is and always has been identity. He contends that the case is straightforward. I do not agree. In my view, the case is complex from an evidentiary perspective. It involves multiple counts, multiple exhibits and multiple complainants as well as expert evidence. However, the applicant concedes that some delay can be justified as an inherent time requirement to permit the development of forensic DNA analysis. For example, the time between his arrest in 1987 and 1995 when the CFS began using STR analysis constitutes inherent time for the case. The applicant also takes no issue with the time from the preferring of the indictment in July, 2010 until the conclusion of trial, set to begin in January, 2013.

[108] The real dispute is: how much time is reasonable?

[109] In Morin, the court described inherent time for a case as the time needed for “intake requirements” at para. 42. This time will vary with the complexity of the case: the more complicated the case, the longer the inherent time requirements. As well, if a case proceeds through preliminary inquiry, the case can be expected to take longer, as additional time will be required for further pre-trial meetings and added court dates. The court also noted that counsel cannot be expected to devote their time exclusively to one case. Generally, intake requirements encompass time to retain counsel, process the charge, conduct bail hearings, police and administrative paperwork, and other pre-trial procedures: Morin, paras. 41-43.

[110] The Crown relies on R. v. National Steel Car Ltd. (2003), 2003 30223 (ON CA), 63 O.R. (3d) 693 (C.A.) for the proposition that it would be an error of law to require the Crown to account to the applicant for investigatory time. National Steel is distinguishable as considering pre-charge investigatory delay, which is not applicable here. Where an individual’s right to trial within a reasonable time or his right pursuant to s. 7 of the Charter is at stake, the courts are responsible for supervising the effect of time required for police investigations.

[111] The Crown also relies on R. v. Rourke, 1977 191 (SCC), [1978] 1 S.C.R. 1021 at pp. 1040-1041 for the proposition that the courts are in no position to supervise the efficiency of police forces in their investigations.

[112] Rourke pre-dates the promulgation of the Charter which, in some instances, requires the courts to do exactly that.

[113] The applicant submits that the police should have sought DNA analysis in 1995 when STR analysis first became available. Mr. Greenfield testified that, depending upon the size of the sample, police could have requested an STR analysis in late 1995 or early 1996. It must be remembered that the Crown’s opinion as to whether autrefois acquit was available to the applicant was not made until November, 1995. This opinion was a pre-condition to any further testing of items seized from the various scenes.

[114] It is also important to remember that the forensic applications of DNA analysis were new to criminology. There was no protocol for communicating to police forces about developments in the science and their significance to investigations. Indeed, the science was developing at, and after, this period. At best, police awareness of the science was communicated at conferences and in reports to chiefs of police. There is no evidence as to what, if any, reports might have been made to the local OPP officers during this time. It is telling that an experienced investigator such as Detective Inspector Welsch was unaware of the parameters of DNA analysis, beyond knowing that it was a tool that would one day be available for criminal investigations.

[115] The fact that Detective Inspector Welsch made periodic inquiries about the state of the science when he spoke to CFS personnel until his retirement in 2003 suggests that information was not readily available, but that he pursued the issue as he could. Promptly after he became aware that DNA analysis was available through CFS, he identified exhibits for submission, and, in February 1998, sent them in. Investigators focussed on sending bodily fluids for analysis and overlooked the forensic value in fluids on the beer bottle, an item that would not previously have been accepted for analysis by CFS. Indeed, CFS did not analyze items such as beer bottles in the early 1990’s.

[116] CFS did not report on the second round of submissions until November and December, 1998. The results were disappointing for the police who decided the prospect of conviction was not any greater than when using the evidence previously available.

[117] The applicant submits that if the beer bottle had been sent for analysis in 1998, some ten years of delay in prosecuting the case against him could be avoided. Mr. Greenfield testified that if the beer bottle had been tested in 1998, “there was a good prospect” a result would have been obtained using the STR technique at that time. His answer was qualified by the need to have a sufficiently large sample for analysis. Assuming that the sample of saliva on the bottle was sufficient and not degraded, and CFS agreed to analyze the bottle, CFS may have been able to obtain a DNA profile from the bottle in 1998.

[118] The applicant also contends that the police were not entitled to a perfect case against him; they were only entitled to await the development of DNA analysis, which was available by 1998. This ignores the fact that in the E.N. case, the applicant was not then identified by DNA testing using samples and techniques available in 1998. It was not until the development of Y-STR analysis using genetic material apart from spermatozoa, that a complete DNA profile of the exhibits involving all complainants could theoretically be developed. The CFS started using Y-STR analysis, which Mr. Greenfield described as a “more robust” method, in 2005. Mr. Greenfield was not specific about when in 2005 this technique became available.

[119] The limitations of STR analysis before the development of the Y-STR technique meant that reliable profiles of semen samples lacking spermatozoa were not available until 2005.

[120] The case of E.N. highlights the difficulty of analyzing DNA material where there are mixed samples. CFS was not able to finalize the DNA profile in her case until an exclusion sample was obtained from her husband in July, 2009. It was only at that point that a DNA profile for the applicant was determined.

[121] It would be easy to second-guess the climate for criminal investigations in 1998 with the benefit of hindsight from 2012. The difficulty with the applicant’s argument that the Crown should have proceeded in 1998 with a weak case against him is that the police had to determine whether there was a reasonable prospect of conviction if they proceeded with the 1998 results. The applicant and other accused persons could rightly complain if police prosecuted cases where there was no reasonable prospect of conviction. The rights of accused persons would be trammelled and the state’s resources would be squandered by proceeding with weak cases.

[122] During the investigation of the applicant’s case, DNA science was in its early days. The applicant conceded as much. The scientists involved in DNA analysis counselled Detective Inspector Welsch, as late as 2003, to give it time. I am of the view that the inherent time requirements of the case, given the developing state of DNA analysis at the time, involve time for the development of robust and reliable DNA analysis with the advent of Y-STR techniques in 2005. As Mr. Greenfield did not specifically address when in 2005 this technique became available, I have adopted June as the mid-point of 2005 as the inherent time required. This is a period of approximately 17 years and 6 months from the applicant’s arrest on December 22, 1987.

2. Actions of the Accused

[123] There are no actions of the accused that have increased the time to proceed to trial.

3. Actions of the Crown

[124] Next, the court must determine what, if any, delay is attributable to the Crown. In general terms, such delays may include adjournments requested by the Crown, failures of or delays in providing disclosure, and other motions or applications brought be the Crown. Delays by police or Crown agencies, such as CFS, tell against the Crown. See: R. v. George; R. v. Kporwodu (2005), 2005 11389 (ON CA), 75 O.R. (3d) 190 (C.A.).

[125] The applicant submits that the Crown is responsible for the following delays:

• 1995 – 1997, a period of 24 months when there was no activity on the file and no requests for further testing;

• the failure of police to submit the beer bottle for testing between 1998 – 2008, , a delay of 120 months;

• police delay in submitting exhibits to CFS (September, 2006 – October, 2007), a delay of 13 months;

• the failure of CFS or police (or both) to advise Detective Sergeant McCallum that a further saliva sample was required (October, 2007 – June, 2008), a delay of 8 months;

• the delay in police supplying CFS with a DNA sample from applicant (June – September, 2008), a delay of 3 months;

• CFS’s failure to report on items submitted (October, 2007 – November, 2008) when turnaround time is 3 months, a delay of 13 months;

• 20 months (October, 2008 until July, 2010) when indictment was preferred.

The total is approximately 162 months when overlapping time periods are eliminated.

[126] I agree with the Crown’s submission that there was no point in submitting semen stained exhibits until STR analysis became available. In fact, it was the development of Y-STR analysis in 2005 that gave the police the reliable results they required. Detective Inspector Welsch’s on-going inquiries about the state of DNA science were reasonable in the circumstances. Having determined that the inherent time requirements for the case span the time from the applicant’s first arrest until June, 2005, I find that the time from 1995 – 1998 does not count against the Crown as delay.

[127] I agree with the applicant’s submission that the unexplained police delay in submitting exhibits to CFS from September, 2006 - October, 2007 counts against the Crown. Allowing for police paperwork, I attribute 12 months for this unexplained delay.

[128] This delay was followed by a further delay of 8 months for the message to reach Detective Sergeant McCallum that CFS needed another saliva sample to complete their analysis. Whether this delay lies at the feet of the police or CFS does not matter for the purposes of analyzing delay. Responsibility by either would count against the Crown. However, I am of the view that the entire time should not be charged against the Crown. The applicant’s submission suggests that CFS would begin their analysis of the samples the moment they arrived in October, 2007. That is not reasonable. Undoubtedly, CFS would have its own intake processes for logging in samples, assigning a scientist to analyze them, performing the analysis and reporting to the police agency that submitted the samples. Then Detective Inspector Horne would have to communicate this information to Detective Sergeant McCallum.

[129] Mr. Greenfield was not specifically asked about intake requirements in this scenario. He was not personally involved in the analysis of samples relevant to this case. At a minimum, I would expect a period of 3 months would be required for these tasks. Some scientific analysis would be required to determine that the applicant’s previous saliva sample was too degraded for analysis. Consequently, I find a delay of 6 months for this period of time is attributable to the Crown.

[130] The applicant submits that the 3 month period from June – September, 2008 where Detective Inspector McCallum was to obtain and submit the applicant’s saliva sample, represents unreasonable delay. I do not agree. The applicant did not suggest what period of time should be allocated to this activity.

[131] There is no dispute that the applicant was in hospital in July, 2008 as McCallum suggests. The proximity of this intelligence to the request received in June for a new sample indicates that the police took immediate steps to obtain a sample. It was their decision to obtain a cast-off sample of the applicant’s DNA. Either they did not want the applicant to be disturbed by a continuing investigation that might lead nowhere or they did not want him disturbing their continuing investigation. In either case, the decision to obtain a surreptitious sample from the applicant was not unreasonable. I accept that some time was required to set up surveillance and obtain a cast-off cigarette butt. In the circumstances, I do not find this delay unreasonable. It is, in my view, inherent time.

[132] The applicant submits that delay of 13 months should be attributed to the Crown for the failure of CFS to report on items submitted in October, 2007 until November, 2008. There is no explanation in the file for this delay, which was characterized as “outside the CFS time frames” by Mr. Greenfield. He added that delays in reporting never exceeded a year. He commented that in 2008 – 2009, CFS was attempting to report in less than 3 months.

[133] There is no evidence that the police sought to expedite the report. In fairness to the police, CFS policy was to expedite reports related to public safety issues and pending court dates. Neither consideration applied here.

[134] Currently, CFS attempts to report on 85% of cases within 60 – 90 days. That may be, but I note that when Detective Inspector Welsch submitted samples to CFS in February, 1998, he did not receive the reports until November and December, 1998, some 9 – 10 months later. It appears that CFS was not able to guarantee the turn-around time posited by Mr. Greenfield before 2008. It may be that CFS has become more efficient or better staffed over the years.

[135] I agree with the applicant that, absent an explanation, CFS’s reporting time was excessive. Even allowing for this case to be exceptional in nature by virtue of the number of complainants and items to be analyzed, a report should have been supplied within 5 months. I therefore attribute 8 months of delay to the Crown.

[136] Finally, the applicant submits that a delay of 20 months should be charged against the Crown for the period October, 2008 – July, 2010 when the indictment was preferred. This argument can be broken down into several processes. Some of this period overlaps with the previous CFS delay.

[137] The DNA report for analysis of the beer bottle was dated November 14, 2008. This was the definitive evidence the police were waiting for. Immediately, Detective Sergeant McCallum contacted the complainants to see if they were prepared to cooperate in giving evidence if the police were able to secure a preferred indictment. This consumed December, 2008 and January, 2009. This period of time was necessary and reasonable. Without witnesses, the police would have had no case. The police decided in January, 2009, that they had sufficient evidence to proceed to seek a preferred indictment. This period of 2 months is inherent time.

[138] Detective Inspector Horne, who was supervising the case, directed Detective Sergeant McCallum to prepare a complete disclosure package before approaching the Crown Attorney to seek a preferred indictment. In accordance with the Morin principles, disclosure falls into inherent time requirements. However, the applicant contends that all of this time constitutes unreasonable delay.

[139] I do not agree. While some of the evidence, such as forensic reports, were already in the possession of the police, there were still some loose ends to be tied up. Detective Sergeant McCallum did not know until January, 2009 that he would have to collect all officers’ notes, for example. As well, the police did not receive a report from CFS on E.N.’s case until February 13, 2009 when they learned that they needed a DNA sample from her husband in order to eliminate him as a possible donor. Mr. N. was in Alberta. It took until summer to locate him, secure his cooperation, and submit his sample to CFS. The CFS report came back on August 14, 2009. This was a necessary part of the disclosure given that the police theory of the case was that there was one perpetrator for all the home invasions. It was not reasonable to seek preferred indictments piecemeal when all charges should be included on one indictment.

[140] It was not until March, 2010 that an updated expert report on tire tracks and foot wear was available from OPP headquarters. This evidence from the previous investigation was already available to the police. In my view, once the decision was made to pursue a preferred indictment, this updated report should have been expedited such that it was available by September, 2009. By that time, the disclosure package should have been complete.

[141] In my view, a total of 6 months in delayed disclosure is charged against the Crown.

[142] The applicant argues that the time from March, 2010 until the signing of the preferred indictment in July, 2010 should be levied against the Crown. I do not agree. The application must be first considered by the local Crown Attorney; if the Crown Attorney agrees with the police proposal, the application is then forwarded to the Attorney General. The Attorney General`s obligation to consider preferring an indictment is a serious step under the Criminal Code. There are no time frames for doing so. I do not find there was an unreasonable delay in this instance for completing this process. This represents 9 months inherent time.

[143] In total, I find there are 32 months of delay attributable to the Crown.

4. Limits on Institutional Resources

[144] No limits on institutional resources are alleged in this case.

5. Other Reasons for Delay

[145] No other reasons for delay are alleged in this case.

Prejudice to the Applicant

[146] In this case, the applicant submits that because of the length of the prosecution, the inference of prejudice is irrefutable. As well, he argues there is risk of prejudice to fair trial rights as memories fade and witnesses testimony may become less reliable. In this case, one of the complainants is now deceased. The right of the applicants counsel to test her evidence by cross-examination at trial is lost. As well, the applicant has not previously had the opportunity to cross-examine A.C. at preliminary inquiry about the beer bottle.

[147] A review of cases involving s. 11(b) applications is instructive. The following cases were cited by the applicant.

[148] In R. v. Godin 2009 SCC 26, [2009] 2 S.C.R. 3, the court held that proof of actual prejudice to the right to make full answer and defence is not invariably required to establish a s. 11(b) violation. Godin involved charges of sexual assault, unlawful confinement and threatening to kill the accused`s girlfriend. The accused was committed to trial about 21 months after the charges were laid; trial was set for 9 months after that. The trial judge granted a stay of proceedings based on unreasonable delay of 30 months. The Court of Appeal set aside the stay. The Supreme Court of Canada restored it.

[149] In criticizing the Ontario Court of Appeal for its failure to accord any weight to the risk of prejudice to Godin, the court observed at para. 37:

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

[150] The applicant also relies on R. v. Satkunananthan 2001 24061 (ON CA), [2001], 152 C.C.C. (3d) 321 (Ont. C.A.). In that case, seven individuals were convicted of trafficking in heroin after an abortive sale to an undercover police officer. Two of the accused were convicted of trafficking for giving a police officer some heroin before the attempted sale, and two other accused were convicted of possession for the purposes of trafficking as a result of possession of half a kilogram of heroin after the sale. Sentences ranging from 4 years to 10.5 years were imposed.

[151] The events leading to the charges spanned two days. Six of the accused waited 44.5 months from the date of their charges until trial. The seventh was tried with the other six, even though he was arrested much later.

[152] Delays occurred when the preliminary hearing initially scheduled was not completed and a continuation could not be scheduled for a further 7 months. Then the first trial date was fixed almost a year after committal for trial, but could not proceed because the Crown failed to arrange for a qualified interpreter. A second trial was not completed because one of the accused and his counsel became ill. A mistrial was declared, and a new trial scheduled 7 months later, a delay of about 28 months from the committal to trial.

[153] The trial judge found there were at least 23 months of unacceptable delay. The Court of Appeal held the delay was longer. The convictions of the original six accused were stayed on appeal. The court held that the longer a case is in the court system, the greater the responsibility is on the Crown to get the case on for trial.

[154] In R. v. Brace 2010 ONCA 689, 104 O.R. (3d) 32, the accused was convicted of dangerous driving, possession of stolen property over $5,000 and resisting arrest. Total delay from the date the charges were laid until the date of trial was 30 months. This time included a preliminary inquiry, a pre-trial application, an initial trial resulting in a hung jury and a second trial. On appeal, a stay of proceedings was granted. The court held that the accused had suffered actual prejudice when the Crown argued at trial that the accused`s memory was not worthy of belief due to the passage of time.

[155] In R. v. Rogers, [2010] O.J. No. 4653 (S.C.J.), the delay from arrest to trial was 33.5 months including 0.5 months of defence delay. The accused was charged with 6 counts of threatening bodily harm, mischief, attempt choking, assault, unlawful confinement, and threatening to cause death. The court held that the length of time to get a straightforward matter to trial was too long, particularly where almost all of the delay was attributable to Crown or institutional delays. In that case, delay in the Ontario Court alone amounted to 18.5 months which the court noted was more than the Morin guidelines allow for an entire case.

[156] In R. v. Saeed, [2009] O.J. No. 2577 (S.C.J.), the accused was charged with 6 counts of robbery and one count of using an imitation firearm while committing a robbery, being masked with intent to commit an indictable offence, forcible confinement, and breaking and entering. The charges arose from allegations that the accused and a number of other men invaded a residence, bound and blindfolded 6 occupants, and robbed them. The overall delay from arrest to trial was 34 months. The accused was on strict bail conditions. The court granted a stay, holding that there were 7 months for intake process, 12 weeks of Crown delay and 21.5 months of institutional delay. The court concluded that although the charges were serious, the public interest in having these charges tried did not trump all other considerations. It also held that the Crown adopted a casual approach to ensuring a timely trial.

[157] In R. v. Allen, [2009] O.J. No. 4227 (S.C.J.), the overall delay from arrest to trial was 27 months. The accused was charged with trafficking in cocaine and possession of proceeds of crime. The court found that 8 months of delay were attributable to the Crown or police. While there was no finding of actual prejudice, the court found the accused’s life had been disrupted by having to move to live with his surety. A stay of proceedings was granted.

[158] In R v. Churly, 2010 ONSC 31, [2010] O.J. No. 273, the total delay from charge to trial was 29.5 months of which 5 months was attributed to the accused, who was charged with break and enter, theft, extortion, and uttering death threats. The charges arose out of allegations of home invasion by 3 accused who were said to have beaten the occupant. The court found 21 months of institutional delay and an inference of prejudice. The charges were stayed.

[159] In R. v. Richards 2010 ONSC 6202, 222 C.R.R. (2d) 183, the total delay from charge to trial was 39.5 months. The accused was charged with aggravated assault and assault causing bodily harm. The case was described as straightforward; the issues involved credibility as to who was the aggressor and who brought the knife to the fight. Systemic delay between the Ontario Court and the Superior Court accounted for 23 months, some 7 months over the 16 month guideline. The court found both inferred and actual prejudice and noted that the court had a duty to give the case priority in scheduling.

[160] Finally, in R. v. Quinney 2010 ONSC 6605, [2010] O.J. No. 5276, the accused was charged with robbery, assault with a weapon, use of an imitation firearm, and wearing a disguise. The overall time from charge to trial was 39 months. Of that period, 31 months was due to institutional delay because the case was ready to be tried but no judge was available. The accused prepared for trial three times, leading to what the Crown termed, “substantial inferred prejudice.” The Crown conceded it was a straightforward case that should have been dealt with in 14 months.

[161] The Crown cited R. v. D.M. in support of its argument that the applicant was not prejudiced by the delay. The facts in D.M. are that the accused was charged with sexual assault on a child in 1986, but the charges were withdrawn shortly after when the police determined the complainant was not cooperative. The accused was charged with unrelated sexual assaults on children in 2008. In 2010, the accused was again charged with sexual offences arising from the first charges. Trial was scheduled for October, 2012. The court held that the gap between 1986 – 2010 was minimally prejudicial to the accused and not due to prosecutorial misconduct. The court dismissed the accused`s application for stay for breach of his s. 11(b) rights and determined it was premature to determine his s. 7 application based on lost evidence.

[162] In my view, the finding in D.M. on the s. 11(b) application is distinguishable for these reasons: the accused was not under charges for the whole period as the applicant is in this case. Second, the court did not find delays attributable to Crown misconduct. While there is no misconduct in the case at bar, there is unreasonable delay amounting to just less than 3 years for which the Crown is responsible.

Conclusion

[163] It is a principle of our law that cases should be tried on their merits. The courts are reluctant to interfere without a full hearing. In this case, serious offences are being alleged. A great deal of police time has gone into investigating this case. Detective Inspector Welsch and Detective Sergeant McCallum have investigated this case with a doggedness and professionalism that is commendable. As well, the CFS has devoted a great deal of time over the years to the analysis of exhibits. The court also recognizes that the complainants are being asked to recall and testify about troubling allegations after many years. These considerations must be balanced against the protections each citizen enjoys under the Charter.

[164] The guarantee in the Charter of a trial within a reasonable time is designed to protect citizens from protracted proceedings, where their liberty is at risk for an extended period of time. Generally, the law recognizes that where the rule of law prevails, disputes, both civil and criminal, must be finalized in a timely manner. The Charter protection is the embodiment of the ancient maxim, “justice delayed is justice denied.” It is an acknowledgement that individuals should not have to live indefinitely with the prospect of prosecution hanging, like the sword of Damocles, above their heads.

[165] In this case, there is an extraordinary 301 months delay from the laying of the information until trial. The Crown or its agents are chargeable for 32 months of that time. I conclude that the time limits prescribed in Morin have been greatly exceeded in this unusual case, such that the applicant’s right to trial within a reasonable time pursuant to section 11(b) of the Charter has been breached. The charges against Mr. Milani are therefore stayed.

[166] In light of this conclusion, it is not necessary to deal with the parties’ arguments on whether the applicant’s s. 7 rights have been breached.

Regional Senior Justice H.M. Pierce

Released: December 4, 2012

COURT FILE NO.: CR-10-0070-MO
DATE: 2012-12-04

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

• and –

DONALD MILANI

Applicant

REASONS ON STAY APPLICATION

Pierce RSJ

Released: December 4, 2012

/nf