ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. Ward, 2015 ONSC 83
COURT FILE NO.: 13-1049
DATE: January 6, 2015
B E T W E E N:
HER MAJESTY THE QUEEN
Sam Humphrey, for Her Majesty the Queen
Respondent
- and -
RONALD WARD
Michael A. Crystal and Ian Paul, Solicitors for the Applicant
Applicant
HEARD: May 28, August 25 & 26, 2014
RULING
JAMES J.
[1] This is an application to stay a charge of sexual assault due to unreasonable delay in bringing the charge to trial. For the reasons that follow, I have determined that the application ought to be granted.
The Facts
[2] The accused in this case was previously a trooper with the Royal Canadian Dragoons based at Garrison Petawawa. The incident in question took place on June 19, 2011. Preliminary charges, referred to in the military as the “record of disciplinary proceedings”, were issued on January 11, 2012. This is the “date of charge” in the military justice system for section 11(b) purposes. The charges remained pending until the file was “referred” to the Directorate of Military Prosecutions on October 22, 2012 at which time a military prosecutor, Major Annie-Claude Samson, was assigned. By November 21, 2012 Major Samson had re-drafted the charges and “preferred” them to a court martial hearing. A charge sheet was sent to Trooper Ward’s commanding officer in Petawawa in late November for delivery to Trooper Ward.
[3] Over the same time period a parallel process was underway within Trooper Ward’s chain of command that led to a decision by Director of Military Careers Administration to discharge him from the Canadian Forces for misconduct relating to the incident in question. He was discharged from the Canadian Forces on October 22, 2012. He never received a copy of the charge sheet and was unaware of the exact status of the charges following his discharge. His military lawyer ceased acting on his behalf in early 2013.
[4] The importance of serving the applicant promptly is underscored by the following extract from an e-mail from Major Samson to Captain Sean Curley on December 13, 2012 on the issue of obtaining the applicant’s current contact information for service:
As you can appreciate, the events happened a very long time ago (19 June 2011), the charges were laid by the unit in January 2012, the Director of Military Prosecutions received the file late October 2012 and we preferred the matter to CM on 21 November 2012. As you can understand, this constitutes a very long delay and we would like to proceed with serving the member ASAP (i.e.: before the weekend) given that the unit’s efforts to serve him were unsuccessful- unfortunately.
[5] Over the next 9 months the military was unable to locate the applicant to serve him with court martial documentation that a hearings officer had directed must be personally served. In August, 2013 the file was transferred to the civilian authorities at the Crown Attorney’s Office for Renfrew County. He was arrested in October, 2013. His preliminary inquiry by way of examinations for discovery took place on February 18 and 19, 2014. An indictment for 1 count of sexual assault was signed on February 28, 2014 following his committal for trial. A judicial pre-trial took place on March 3, 2014. No trial date has been set.
[6] For the purposes of this application, the Crown prosecutor does not allege that the applicant was evading service of the court martial documentation nor does defence counsel allege any delay once the matter was transferred to the civilian authorities.
Position of the Applicant
[7] The applicant says that he has suffered actual prejudice as a result of the delay including the following:
a. He was discharged from the military for misconduct and was no longer able to pursue a military career after 4 years’ service.
b. He has been unable to maintain steady employment
c. He has become reclusive and has difficulty maintaining relationships
d. He suffers from anxiety and depression and has received medical treatment for these conditions
e. He was stigmatized by the charges and ostracized by other soldiers prior to his release.
Position of the Respondent
[8] The respondent says that the delay in bringing this matter to trial is 2 years, 4 months and 17 days to the commencement date of the application. Crown counsel has prepared a useful chart breaking down the various timeframes and attributing delay as follows:
a. Combined intake and inherent delay of 528 days (17.3 months)
b. Prosecutorial delay of 309 days (10.2 months)
c. Institutional delay of 21 days.
[9] The respondent says that the institutional and prosecutorial delay totals 309 days or 10.9 months and as such is well within the range set by the R. v. Morin 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771 and does not warrant a stay.
[10] In addition, Crown counsel notes that the applicant failed to identify specific periods of delay or to categorize and attribute delay in support of the relief sought.
Discussion and Analysis
[11] The delay here of over 2 years from charge to the commencement of this application is excessive on its face and warrants scrutiny. (R. v. MacDougall, 1998 CanLII 763 (SCC), [1998] S.C.J. No. 74, para. 62).
[12] The first timeframe is from the date of the incident to the date of issuance of the record of disciplinary proceedings, a period of about 7 months, for a straightforward sexual assault. This delay is not satisfactorily explained although the evidence was that military justice is intended to be speedy justice (see also R. v. Généreux, 1992 CanLII 117 (SCC), [1992] 1 S.C.R. 259 at p. 293). The evidence of Sgt. Jeffery Williams, the lead investigator, disclosed what may generously be described as a lackadaisical pace to the investigation in the period from June 2011 to January 2012. Generally pre-charge delay does not count in a section 11(b) analysis but in the military context, the situation is not as clear. In appropriate circumstances, pre-charge delay warrants scrutiny and explanation (R. v. Perrier, [2000] C.M.A.J. No. 4 at para. 57) and can contribute to a Charter breach. Here the explanation provided tends to operate against the prosecution.
[13] It is clear that the applicant experienced immediate consequences following the incident. He was put on conditions including no alcohol or attendance at bars. This condition remained in place until his discharge in October 2012. His ability to socialize with other soldiers was compromised. He testified he was ostracized by military personnel. His roommate moved out of their shared accommodation. His duties were changed and restricted to responsibilities connected with monitoring and cleanup of the firing range (i.e. range control). He lost his land deployment allowance because his status meant he could not be deployed.
[14] The next timeframe is from the issuance of the record of disciplinary proceedings to the referral of the matter for prosecution, about 10 months. The main evidence on this period was from then Captain Michael Smith, a lawyer in the Office of the Assistant Judge Advocate General in Toronto. He prepared an opinion letter in March, 2012 as part of the process of referring the charges to the Directorate of Military Prosecutions. This letter was to be reviewed and forwarded by his superior officer. The draft letter went astray for an unascertained period amounting to several months without any follow up. Eventually an inquiry from the prosecutor’s office prompted some action and the file was sent to the military prosecutor, Major Samson, in late October, 2012. The only reasonable conclusion to be drawn on the available evidence was that a substantial portion of this delay was due to neglect in the referral authority in administering and transmitting the file for prosecution.
[15] The next timeframe is from the preferring of charges in November 2012 until the military transferred responsibility to the civilian authorities in July or August, 2013. It is clear that Major Samson was keenly aware of the need to promptly serve the charges on the applicant. By this time the applicant was out of the military and no steps had been taken to ensure that the applicant was aware of the proceedings or to keep tabs on his whereabouts. The failure of the administrative branch that was dealing with his discharge to maintain contact with the prosecution or vice versa is also unexplained. Due to this lapse, the military was never able to serve the applicant despite ongoing efforts to do so. It is not clear how the police were able to find the applicant in British Columbia when the military police could not. I do not agree with the Crown submission that this period should be treated as neutral delay. In my view the time spent trying to locate the applicant was a direct consequence of the failure of different branches of the military to communicate and co-ordinate their activities.
[16] There was extensive evidence regarding the prejudice alleged to have been experienced by the applicant. It is difficult to distinguish between prejudice flowing from the charges and prejudice flowing from the delay.
[17] His family doctor did not see him from August, 2006 until January 29, 2014. His reported difficulties in 2014 included sleeplessness, feelings of depression from the pending legal proceedings and a recent job layoff. He was diagnosed with chronic depression and medication was prescribed. In March 2014 the applicant reported sleeping better and improved mood although he suffered from irritability and frustration. In April, he reported having recently quit smoking and feeling that his life was in limbo. He mentioned having to live with his mother as a condition of his bail. In July his doctor noted a major increase in anxiety and depressed mood with panic attacks about once per week.
[18] The applicant’s mother, Valerie Ward, testified that the applicant would frequently come home to Oshawa on weekends while he was posted to Garrison Petawawa. She noticed a change in his behaviour around the spring and summer of 2012. He was quieter and spent less time with his cousins. He lived at home for about 2 weeks following his discharge. She felt something was wrong; he wanted to be alone often and never smiled. Initially she didn’t know the reason for the discharge. She learned of the charges when the military police visited the family home looking for the applicant. When she saw him at Easter 2013 she told him that the military police had been looking for him. It seems unusual that the applicant’s family would not have told him of the visit by military police in late 2012 although Ms. Ward said that she did not have much contact with the applicant in the months following his discharge.
[19] The case authorities note that the determination of unreasonable delay is more than an arithmetical tally of weeks and months before trial. It involves a purposeful consideration of four basic factors:
a. Length of delay
b. Reasons for the delay
c. Waiver of any time limits
d. Prejudice to the accused.
[20] In this case it is difficult to escape the conclusion that excessive delay took place as a result of a lack of timely action, if not indifference, by governmental forces at different points leading up to the transfer to civilian authorities. Likewise it seems clear that the applicant has suffered actual prejudice stemming from the delay. It is worth noting as well that inferred prejudice increases as time passes.
[21] The applicant does not appear to have waived the running of the 11(b) clock. As was stated in R. v. Kporwodu, 2005 CanLII 11389 (ON CA), [2005] 75 O.R. (3d) 190 the Crown must be vigilant in bringing accused persons to trial within a reasonable time. Here not all reasonable steps were taken to ensure a timely disposition and this has operated to the prejudice of the applicant.
[22] In considering whether a stay of proceeding under section 24(1) is warranted, I have considered the societal interest in having cases adjudicated on their merits. In this case a group of soldiers, both male and female, were socializing in the barracks on base. They had been drinking through the course of the evening. Both the complainant and the applicant were present. The complainant left the group to sleep nearby in the room of her boyfriend who was away on exercises. She was wearing shorts and a T-shirt. The allegations against the applicant are that he got into bed with the complainant while she was asleep; put an arm around her and a hand on her breast over her T-shirt. His pants were at his ankles and his undershorts were in place around his middle. The complainant awoke and yelled at the applicant who fell out of the bed. Their friends came into the room in response to the commotion.
[23] The applicant’s trial for a relatively straightforward offence has been unduly delayed due to prosecutorial inaction and neglect. The applicant has demonstrated prejudice as a result of the delay. An order staying this proceeding shall issue.
Mr. Justice Martin James
DATE RELEASED: January 6, 2015
CITATION: R. v. Ward, 2015 ONSC 83
COURT FILE NO.: 13-1049
DATE: January 6, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
RONALD WARD
Applicant
RULING
James J.
DATE RELEASED: January 6, 2015