Citation: R. v. Garrison, 2010 NSSC 247
Date: 20100624
Docket: CRT 317077
Registry: Truro
Between:
Her Majesty The Queen
Provincial Crown
v.
Ryan Darrell Garrison, Stephen Clifford Brown
Defendants
Judge: The Honourable Justice Arthur J. LeBlanc.
Heard: May 12, 2010, in Truro, Nova Scotia
Oral Decision: June 21, 2010
Written Decision: June 24, 2010
Counsel: Herman Felderhof and Danielle Bastarache,
for the Provincial Crown
Thomas Singleton, for Ryan Darrell Garrison
Don Murray, Q.C., for Stephen Clifford Brown
By the Court:
[1] This is an application for a stay of proceedings on account of alleged delay and resulting denial of the right to be tried within a reasonable time, contrary to s. 11(b) of the Charter of Rights and Freedoms. Mr. Garrison and Mr. Brown are charged with sexual assault. They are scheduled to be tried on June 28, 2010. The trial is scheduled for five days. The issue is whether there has been unreasonable delay in the proceeding such that a stay is warranted.
[2] Mr. Garrison also seeks a stay under s. 24(1) of the Charter, claiming an abuse of process in accordance with s. 7. Mr. Brown does not join this application.
Background
[3] Mr. Garrison and Mr. Brown were arrested on August 25, 2007, for an alleged sexual assault upon the complainant. They were charged under s. 271 of the Criminal Code. They appeared in Provincial Court in Shubenacadie on October 11, 2007. Mr. Garrison appeared with counsel. Mr. Brown did not have counsel. The Crown indicated that an adjournment was necessary, as the alleged offence had occurred outside the relevant territorial jurisdiction, and should have been in Provincial Court in Truro. The accused were directed to reappear in Truro on November 28, 2007. Counsel for Mr. Garrison indicated that he required additional disclosure.
[4] On October 19, 2007, Mr. Singleton wrote to the Crown seeking disclosure of documents, including hospital records, tape recording and telephone transcripts, updated forensic reports, resumes of forensic lab analysts, further details regarding the loss or destruction of an Irving Mainway digital/video recording, a copy of the recording of an interview with Terry Nicholson and criminal records for the complainant and two other individuals.
[5] The Crown provided additional disclosure to Mr. Singleton. On November 23, however, he advised the Crown that certain items that had been requested on October 19 remained outstanding. He also inquired as to whether Mr. Garrison and Mr. Brown would be jointly charged. He indicated that on November 28 he would request an adjournment until mid-January to permit disclosure to be completed.
[6] The Crown wrote to Mr. Singleton on November 26, 2007, indicating that it did not anticipate charging Mr. Garrison and Mr. Brown jointly. On November 27 the Crown provided additional disclosure to Mr. Singleton, including a copy of the CD containing the 911 call and the audio statement of Perry Nicholson, and indicated that there was no additional details regarding the Irving Mainway material. The Crown indicated there were no criminal records for the complainant or for the other persons referred to.
[7] Mr. Singleton appeared before the Truro Provincial Court on November 28, 2007, on behalf of Mr. Garrison. He also spoke for Don Murray, Mr. Brown’s counsel. Mr. Singleton requested that the matter be put over to January 30, 2008, to permit further disclosure.
[8] On December 3, 2007, Mr. Singleton notified the Crown that the disc provided on November 27, which contained one of the witness statements, would not open. He requested a replacement. He also inquired as to which RCMP officer was coordinating the DNA warrants, in order to arrange for Mr. Garrison to be served and to provide a sample.
[9] On January 17, 2008, additional disclosure was provided.
[10] Mr. Murray appeared for Mr. Brown – and on behalf of Mr. Singleton for Mr. Garrison – on January 30, 2008. He indicated that the accused were awaiting the DNA results. Crown counsel stated that DNA results would be available in eight weeks. The matter was adjourned for election and the plea until April 30. Mr. Garrison requested a change to his undertaking, as he had employment outside Nova Scotia. The Crown agreed to this variance. A similar variance had been granted to Mr. Brown.
[11] On April 30, 2008, Mr. Garrison and Mr. Brown elected to be tried by a Judge of the Supreme Court. The Court offered September 2, 2008, as a date for the focus hearing. Mr. Singleton indicated that he would be unavailable due to holidays. The court thus set the focus hearing for September 16. Mr. Murray was also in attendance, and the focus hearing for Mr. Brown was scheduled for October 7. Mr. Garrison’s preliminary hearing was scheduled for November 6 and 7, while Mr. Brown’s preliminary was scheduled for November 25, on account of Mr. Murray’s unavailability in September.
[12] On August 6, 2008, the Crown provided a copy of the “warned” statements of Mr. Brown and Mr. Garrison and the 911 call, along with other audio witness statements. The Crown indicated that they were prepared to release the video statement of the complainant but required Mr. Singleton’s undertaking.
[13] At the September 16, 2008, focus hearing the Crown withdrew the informations against Mr. Garrison and Mr. Brown, but indicated an intention to re-lay them after further investigation. After the informations were withdrawn, the accused were not under any restrictive bail conditions.
[14] Mr. Garrison and Mr. Brown were jointly charged with sexual assault by Information sworn on February 27, 2009. On March 11 Mr. Garrison appeared with counsel for his election. Mr. Brown was also in attendance but required an adjournment to retain counsel. The matter was put over until April 8. On that day, both accused elected trial by Judge without a jury. The court offered to hold the preliminary inquiry in August 2009, but due to the unavailability of defence counsel on earlier dates, it was scheduled for September 17 and September 22. After a preliminary inquiry on September 17, both accused were committed to stand trial. They appeared in Supreme Court on September 22 and the trial was scheduled for June 25 to July 2, 2010.
[15] The passage of time between the original charges on August 25, 2007, until completion of the trial (scheduled for July 2, 2010), constitutes a total delay of approximately 34 months. Mr. Garrison and Mr. Brown argue that essentially all of this delay is attributable to the Crown or is systemic delay that should be charged against the Crown. The Crown maintains that it should be charged with only about seven months. Otherwise, the Crown says, the delay is attributable to the defence, in particular to the unwillingness of the two accused to enter an election and plea before complete disclosure was provided, or is neutral time.
[16] The accused argue that they were not in a position to enter an election and plea on their first appearance in Provincial Court on October 11, 2007, because Crown disclosure had not been completed and the matter was in the wrong Provincial Court location. They submit that the appearance in Provincial Court in Shubenacadie should be counted against the Crown. They add that further delays until April 30, 2008, should be charged against the Crown due to the lateness of disclosure. The delay caused by the withdrawal and re-laying of the informations should also be charged against the Crown, they submit.
[17] The Crown says the delay resulting from the withdrawal of the original informations and the laying of the second information should be discounted. In effect, the Crown says, the new information “restarted the clock,” and time should be counted from the date of the joint information.
The law
[18] Subsection 11(b) of the Charter of Rights and Freedoms provides that “[a]ny person charged with an offence has the right ... to be tried within a reasonable time.” In R v. Askov, [1990] 2 S.C.R. 1199, [1990] S.C.J. No. 106, the Supreme Court of Canada analysed the objective and purpose of s. 11(b). Cory, J., for the majority, discussed the purpose of the provision, at pp. 1219-1221 (QL paras. 43-47):
...s. 11(b) explicitly focusses upon the individual interest of liberty and security of the person. Like other specific guarantees provided by s. 11, this paragraph is primarily concerned with an aspect of fundamental justice guaranteed by s. 7 of the Charter.... It is a fundamental precept of our criminal law that every individual is presumed to be innocent until proven guilty. It follows that on the same fundamental level of importance, all accused persons, each one of whom is presumed to be innocent, should be given the opportunity to defend themselves against the charges they face and to have their name cleared and reputation re‑established at the earliest possible time.
Although the primary aim of s. 11(b) is the protection of the individual's rights and the provision of fundamental justice for the accused, nonetheless there is, in my view, at least by inference, a community or societal interest implicit in s. 11(b). That community interest has a dual dimension. First, there is a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law. Second, those individuals on trial must be treated fairly and justly. Speedy trials strengthen both those aspects of the community interest. A trial held within a reasonable time must benefit the individual accused as the prejudice which results from criminal proceedings is bound to be minimized. If the accused is in custody, the custodial time awaiting trial will be kept to a minimum. If the accused is at liberty on bail and subject to conditions, then the curtailments on the liberty of the accused will be kept to a minimum. From the point of view of the community interest, in those cases where the accused is detained in custody awaiting trial, society will benefit by the quick resolution of the case either by reintegrating into society the accused found to be innocent or if found guilty by dealing with the accused according to the law. If the accused is released on bail and subsequently found guilty, the frustration felt by the community on seeing an unpunished wrongdoer in their midst for an extended period of time will be relieved.
There are as well important practical benefits which flow from a quick resolution of the charges. There can be no doubt that memories fade with time. Witnesses are likely to be more reliable testifying to events in the immediate past as opposed to events that transpired many months or even years before the trial. Not only is there an erosion of the witnesses' memory with the passage of time, but there is bound to be an erosion of the witnesses themselves. Witnesses are people; they are moved out of the country by their employer; or for reasons related to family or work they move from the east coast to the west coast; they become sick and unable to testify in court; they are involved in debilitating accidents; they die and their testimony is forever lost. Witnesses too are concerned that their evidence be taken as quickly as possible. Testifying is often thought to be an ordeal. It is something that weighs on the minds of witnesses and is a source of worry and frustration for them until they have given their testimony.
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.
The failure of the justice system to deal fairly, quickly and efficiently with criminal trials inevitably leads to the community's frustration with the judicial system and eventually to a feeling of contempt for court procedures. When a trial takes place without unreasonable delay, with all witnesses available and memories fresh, it is far more certain that the guilty parties who committed the crimes will be convicted and punished and those that did not, will be acquitted and vindicated. It is no exaggeration to say that a fair and balanced criminal justice system simply cannot exist without the support of the community. Continued community support for our system will not endure in the face of lengthy and unreasonable delays.
[19] In R v. Morin, [1992] 1 S.C.R. 771, [1992] S.C.J. No. 25, Sopinka, J., for the majority, discussed the requirement for balancing that arises under s. 11(b). He stated, at para. 32:
The judicial process referred to as "balancing" requires an examination of the length of the delay and its evaluation in light of the other factors. A judicial determination is then made as to whether the period of delay is unreasonable. In coming to this conclusion, account must be taken of the interests which s. 11(b) is designed to protect. Leaving aside the question of delay on appeal, the period to be scrutinized is the time elapsed from the date of the charge to the end of the trial.... The length of this period may be shortened by subtracting periods of delay that have been waived. It must then be determined whether this period is unreasonable having regard to the interests s. 11(b) seeks to protect, the explanation for the delay and the prejudice to the accused.
[20] Sopinka, J. set out the following factors to be considered:
1. The length of the delay;
2. Waiver of time periods;
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 the delay;
and
4. Prejudice to the accused.
[21] In R v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, Cromwell, J. said, for the court, at para. 18:
... Whether delay has been unreasonable is assessed by looking at the length of the delay, less any periods that have been waived by the defence, and then by taking into account the reasons for the delay, the prejudice to the accused, and the interests that s. 11(b) seeks to protect. This often and inevitably leads to minute examination of particular time periods and a host of factual questions concerning why certain delays occurred. It is important, however, not to lose sight of the forest for the trees while engaging in this detailed analysis. As Sopinka J. noted in Morin, at p. 787, “[t]he 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.”
[22] I will consider the factors set out in Morin.
1. Length of the Delay
[23] The length of the delay is the period from the charge to the end of the trial. In this case, the original informations were sworn on August 25, 2007. The trial is scheduled to conclude on July 2, 2010. No further inquiry is required if this period is unexceptional. If that is not the case, however, the court must determine if the delay is unreasonable. The court must determine the length of systemic delay, the delay caused by the Crown and any resulting prejudice to the accused.
[24] In Morin, supra, the Supreme Court of Canada provided guidelines for acceptable levels of “systemic delay.” For a trial in Provincial Court, the guideline for systemic delay is 8-10 months. For a trial in the Superior Court, there are two stages to the process, and systemic delay is estimated at 18 months. The court does not apply the guidelines mechanically. It is necessary to consider all the relevant factors and apply the law to the facts of the case. There is no evidence of the length of time required to hold a preliminary inquiry or a trial. I am satisfied that in this province, it is appropriate to apply the guidelines suggested in Morin.
[25] The initial question is whether the total length of time to be considered runs from the date of the first informations or from the second Information. If it is the former, then the total time is 34 months. If it is the latter, the total time is 17 months. The Crown argues that the period between the withdrawal of the first informations and the laying of the second Information is neutral. The accused argue that the gap should be attributed to the Crown.
[26] A person is charged for the purpose of section 11 of the Charter “when an information is sworn alleging an offence against him, or where a direct indictment is laid against him when no information is sworn”: R. v. Kalanj, [1989] 1 S.C.R. 1594, [1989] S.C.J. No. 71 at para. 16. As such, “the reckoning of time in considering whether a person has been accorded a trial within a reasonable time under s. 11(b) will commence with the information or indictment, where no information has been laid, and will continue until the completion of the trial: Kalanj at para. 16. Generally, pre-charge delay is not included in the calculation, except, for instance, in circumstances where the second information represents the same alleged conduct or transaction. In that case, the entire period should be considered as one transaction: R v. Carter, [1986] 1 S.C.R. 981, [1986] S.C.J. No. 36 at para. 11. This approach was followed by the Ontario Court of Appeal in R v. Antoine, [1983] O.J. No. 3021 (Ont. C.A.), where the entire period was considered as a single event, rather than two separate events warranting two separate assessments.
[27] In R v. G.W.R., [1996] O.J. No. 4277 (Ont. C.A.), charges against the accused were laid in 1974, but the information was withdrawn on account of insufficient evidence, with no indication that the charges would be re-laid. In 1993, as a result of further investigation, the accused was charged again. The issue on the s. 11(b) application was whether the time between 1974 and 1996 should be included in the calculation of delay. The Ontario Court of Appeal declined to consider the interval of time and stated, at paras. 9-10:
Although the trial judge found that a charge of contributing to juvenile delinquency may have been laid and later withdrawn, there was nothing in the record to show that this charge related to the same conduct that now forms the basis of the charges facing the respondent. Further, there was no indication that once the purported charge of contributing was withdrawn, the respondent believed that he was still under investigation or in jeopardy in relation to this same conduct. Nor is there any evidence of oblique motive or bad faith on the part of the Crown in its discretion to withdraw the contributing charge. Accordingly, it is our view that the time from the withdrawal of the charge in 1974 until the laying of the new charges did not continue to run for the purposes of s. 11(b) of the Charter.
This is not a case like Re Garton and Whelan (1984), 14 C.C.C. (3d) 449 (Ont. H.C.J.) where although the accused was discharged at the preliminary inquiry, he was aware that the police and the deceased's parents were actively continuing the investigation. In this case, there was no evidence suggesting that after the Juvenile Delinquents Act charge was withdrawn, the respondent believed that he was still under investigation or in some other way in jeopardy. Based on this record, no violation of s. 11(b) of the Charter has been made out.
[28] In R v. George, [2005] O.J. No. 3241 (Ont. Sup. Ct. J.), the applicant was arrested on June 25, 2001 and charged with offences arising out of a robbery. The charges were withdrawn on May 8, 2002, because the Crown concluded that there was no reasonable chance of a conviction. When new evidence came to light, the applicant was re-charged on January 9, 2003, and his trial was scheduled to end on August 26, 2005, 50 months after the first arrest. The Crown had not indicated that it intended to re-charge the applicant at the time the charges were dropped, although his lawyer told him it was possible for the Crown to do so.
[29] In George, Durno, J. held that “the Crown must take responsibility of the 7 month delay, from July 16, 2002" (when the new evidence became known) up to “January 13, 2003 the date the new information was sworn as well as to February 12, 2003 the applicant's first appearance on the new information” (para. 87). There was, however, “negligible” ongoing prejudice during that time, because the accused had no reason to believe that the Crown would re-charge him (paras. 101-103). The 8.2 month period was included in the calculation of the total delay of 29 months, but Durno, J. held that there was “effectively no prejudice” during the “gap” (para. 115).
[30] In this case, there is no difference in substance between the charges on the two sets of informations. The fact that the accused are jointly charged under the second information, but were individually charged in the first informations, does not alter this fact. They are still charged with sexual assault in relation to the same circumstances on the same date. Additionally, when the Crown withdrew the first informations, the accused were notified that they would be re-charged after further investigation. Unlike the situations in G.W.R. and George, where the accused were either not aware of their continuing jeopardy or did not have any reason to believe the Crown intended to re-charge them, there was a clear indication by the Crown that Mr. Garrison and Mr. Brown would face renewed charges of sexual assault.
[31] Another factor to be considered is whether the Crown withdrew the first informations for an oblique motive or in bad faith. The Crown’s intention was to strengthen the case against the accused and to determine whether there was a third person involved in the offence. According to the evidence of RCMP Cst. Addie MacCallum at the preliminary inquiry, the RCMP conducted additional investigations to determine whether they could identify a third person who may have participated in the alleged sexual assault, based on unidentified DNA found in the sexual assault kit. Initially Cst. MacCallum thought that there was enough evidence to proceed on the original informations, but the Crown was in favour of withdrawing them and re-laying the charges after further investigation. Following this investigation the only change that occurred was to join Mr. Garrison and Mr. Brown on a single information. It is not clear why it would be necessary to withdraw the informations in order to build the case. Nothing stopped the RCMP from continuing the investigation. Police investigations are not required to stop after an accused is charged.
[32] I am satisfied that the length of delay is 34 months. This is a time period warranting further scrutiny.
2. Waiver of time periods
[33] If the court determines that there has been waiver of any period of delay, this time is not included in calculating systemic delay. Such a waiver must be clear and unequivocal. As Sopinka, J. said in Morin, supra, at paras. 37-38:
If the length of the delay warrants an inquiry into the reasons for delay, it appears logical to deal with any allegation of waiver before embarking on the more detailed examination of the reasons for delay. If by agreement or other conduct the accused has waived in whole or in part his or her rights to complain of delay then this will either dispose of the matter or allow the period waived to be deducted.
This Court has clearly stated that in order for an accused to waive his or her rights under s. 11(b), such waiver must be clear and unequivocal, with full knowledge of the rights the procedure was enacted to protect and of the effect that waiver will have on those rights.... Waiver can be explicit or implicit. If the waiver is said to be implicit, the conduct of the accused must comply with the stringent test for waiver set out above. As Cory J. described it in Askov, supra, at p. 1228:
... there must be something in the conduct of the accused that is sufficient to give rise to an inference that the accused has understood that he or she had a s. 11(b) guarantee, understood its nature and has waived the right provided by that guarantee.
Waiver requires advertence to the act of release rather than mere inadvertence. If the mind of the accused or his or her counsel is not turned to the issue of waiver and is not aware of what his or her conduct signifies, then this conduct does not constitute waiver. Such conduct may be taken into account under the factor "actions of the accused" but it is not waiver. As I stated in [R v. Smith, [1989] 2 S.C.R. 1120, [1989] S.C.J. No. 119], which was adopted in Askov, supra, consent to a trial date can give rise to an inference of waiver. This will not be so if consent to a date amounts to mere acquiescence in the inevitable.
[34] In Smith, supra, Sopinka, J., for the court, held, at para. 38:
... Agreement by an accused to a future date will in most circumstances give rise to an inference that the accused waives his right to subsequently allege that an unreasonable delay has occurred. While silence cannot constitute waiver, agreeing to a future date for a trial or a preliminary inquiry would generally be characterized as more than silence....
[35] In Godin, the delay in disclosure was charged against the Crown; the court said:
... Had the Crown obtained the forensic evidence within a reasonable amount of time, the re‑election and preliminary inquiry could have happened much sooner. It may well have been beneficial to the appellant to have a preliminary inquiry. But, respectfully, that is not the point. The appellant was entitled to timely disclosure, he did not receive it, and no explanation for the failure to provide it has been advanced. I do not see anything in this which undercuts the appellant's position that this delay was unreasonable.
[36] The following overview of the intricacies of waiver is provided by J.S. Campbell Prov. Ct. J. in R. v. Kennedy, 2010 NSPC 8, [2010] N.S.J. No. 50 (Prov. Ct.), at paras. 17-22:
[T]he starting proposition is that a waiver must be clear, unequivocal and expressly made.
But, saying the words that one agrees to trial dates is more than silence. In R. v. Smith, [1989] 2 S.C.R. 1120 Sopinka J. stated at p. 109:
"Agreement by an accused to a future date will in most circumstances give rise to an inference that the accused waived his right to subsequently allege that an unreasonable delay has occurred. While silence cannot constitute waiver , agreeing to a future date for a trial or a preliminary inquiry would generally be characterized as more than silence. Therefore, absent other factors, waiver of the appellant's 11(b) rights might be inferred based on the foregoing circumstances."
Then again, not always. Waiver means that a person has options. If there were no options, there can be no waiver. Justice Sopinka in R. v. Morin, [1992] 1 S.C.R. 771 said at p. 790:
"As I stated in Smith, supra, which was adopted in Askov, supra, consent to a trial date can give rise to an inference of waiver. This will not be so if consent to a date amounts to mere acquiescence in the inevitable."
But yet again, not always.
"Acquiescence to dates and to adjournments cannot always be construed as simple resignation to the inevitable. In some instances, the acceptance of a trial date more than eight months away may indicate a recognition by counsel that such a time lapse, in all the circumstances is not unreasonable." R. v. Bennett (1991), 3 O.R. (3d) 193, 64 C.C.C. (3d) 449 (C.A.), aff'd [1992] 2 S.C.R. 168
There should be some evidence that agreement to suggested dates is to be characterized as acquiescence in the inevitable. R. v. Nuosci, [1993] 4 S.C.R. 283, p. 284, R. v. Brassard, [1993] 4 S.C.R. 287, R. v. Stewart [2000] B.C.J. No. 1333 (C.A.).
In summary, waiver must be clear and unequivocal. But, it may be inferred from an agreement to trial dates. But it cannot be inferred if the agreement is merely an acquiescence in the inevitable. But, unless there is evidence that the agreement was a mere acquiescence in the inevitable it will not be found to be so.
[37] In R v. Zhu, 2009 ONCJ 618, 2009 CarswellOnt 8168 (Ont. C.J.), the accused were charged with production of marihuana, possession for the purpose of trafficking and fraudulent use of electricity. Their first appearance was June 12, 2008, and disclosure was completed by October 9, 2008. The time from arrest to the scheduled trial dates (in 2010) was “just short of 19 months” (para. 6). The case was not a complicated one (para. 8). As to the actions of the Crown and the accused, Blouin, J. said, at paras. 9-12:
In this matter, the defendants retained counsel at the second appearance after a bail hearing. From that day (July 3) until a date where a Crown pre‑trial is contemplated (October 9) the record is ambiguous regarding the state of disclosure, and regarding the efficacy of holding a resolution discussion at points throughout that three month period. It appears neither Crown nor defence are sufficiently informed about the state of disclosure in this case, such that it languishes until October 9 when both parties are prepared to conduct a resolution meeting.
....
In the preceding paragraph my comments regarding the state of disclosure are obviously applicable under this heading. In addition, it must be remarked upon, once again, that the disclosure that is ultimately produced in this case existed on the date of arrest. An efficient disclosure process would have the relevant police officers' notes collected and photocopied. An efficient disclosure process would have a copy of the Information to Obtain available soon after arrest. I am told this was not a sealed warrant, and I heard no evidence that any redaction was performed or, for that matter, required. An efficient disclosure process would provide a video copy of the execution of the warrant and the surveillance. It would not have been unrealistic to ask that the above material be made available for defence by July 3 (six weeks after arrest).
Having said that, I am of the view that both Crown and defence are equally responsible for the three month period between July 3 to October 9. I would attribute one and a half months of delay during that period to the Crown.
[38] In R v. Crate, 2009 ONCJ 712, 2010 CarswellOnt 2648 (Ont. C.J.), the two accused were charged with assault causing bodily harm in the context of a large public gathering (para. 24). The court regarded the charge as a “routine” one for the courts of the jurisdiction (para. 14). The delay was in part related to disclosure issues. Bourque, J. said, at paras. 22 and 28:
Delay resulting from an adjournment caused by late disclosure is not always attributable to the Crown. The court must assess the importance of the material in question and determine whether an adjournment was really necessary.... It requires an assessment of relevance.
....
Where the Crown is alleging criminal offences, which have been committed by individuals in the context of a wider disturbance, the investigation can be difficult.... Notwithstanding the difficulties which I have just noted, this is not a case of fraud or conspiracy, or the like where, by its very nature the defence must expect a slow investigation over a protracted period of time, with continuing documentary and other disclosure....
[39] Bourque, J. distinguished R v. Kovacs-Tator (2004), 192 C.C.C. (3d) 91, 2004 CarswellOnt 4805 (Ont. C.A.), where the court stated that, while the Crown “is obliged to make initial disclosure before the accused is called upon to plead or to elect the mode of his trial,” it “is not obliged to disclose every last bit of evidence before a trial date is set” (para. 47). In Crate, Bourque, J. concluded that “lack of institutional resources and the failure of the police to investigate this matter in a timely fashion (which must be borne by the Crown)” had led to a total delay of between 15 and 16 months (para. 46). The s. 11(b) application was allowed and the charges were stayed.
[40] In this case that the reason that the preliminary inquiry was not set down for hearing was the position taken by both accused that additional disclosure was required before they could properly enter election and plea. In the correspondence between Mr. Garrison’s counsel and the Crown, it is clear that Mr. Garrison is seeking disclosure of any DNA evidence; I note Mr. Singleton's letter to October 17, 2007 in this respect. The Crown obtained a DNA warrant in December 2007. It was served on Mr. Garrison and Mr. Brown that month, and the results of the DNA analysis became available on February 22, 2008.
[41] Mr. Garrison and Mr. Brown were arrested on August 6, 2007. It was not until about five months later that the Crown moved to obtain DNA samples. The defence agreed to arrange for service of the DNA warrants on the accused and to arrange for the samples to be provided. I infer from this that the defence was attempting to get into a position where they could receive full disclosure.
[42] In the course of the s. 11(b) hearing, the Crown conceded that it was appropriate for the accused to not make their election and plea until they had received the results of the DNA analysis. I agree that this was a reasonable position for the accused to take. Consequently, I am of the view that there was no implied waiver by the accused on account of pursuing the DNA evidence. They agreed to the adjourned dates because the Crown had failed to act promptly in obtaining a DNA analysis and providing further disclosure.
[43] Between the charging of the accused and the disclosure of the DNA results was a period of about six months. This is a considerable length of time to complete disclosure for a relatively straightforward charge with an evidentiary base of several witnesses and the DNA evidence.
3. Reasons for the delay
[44] Inherent time requirements. In any criminal proceeding, some delay is inevitable. The legitimate inherent time requirements of a proceeding are neutral time, not chargeable against the Crown or the defence. As Sopinka, J. stated in Morin, supra, at para. 41:
All offences have certain inherent time requirements which inevitably lead to delay. Just as the firetruck must get to the fire, so must a case be prepared. The complexity of the trial is one requirement which has often been mentioned. All other factors being equal, the more complicated a case, the longer it will take counsel to prepare for trial and for the trial to be conducted once it begins. For example, a fraud case may involve the analysis of many documents, some conspiracies may involve a large number of witnesses and other cases may involve numerous intercepted communications which all must be transcribed and analyzed. The inherent requirements of such cases will serve to excuse longer periods of delay than for cases which are less complex. Each case will bring its own set of facts which must be evaluated. Account must also be taken of the fact that counsel for the prosecution and the defence cannot be expected to devote their time exclusively to one case. The amount of time that should be allowed counsel is well within the field of expertise of trial judges.
[45] Inherent delay includes intake activities which include, retaining counsel, bail hearings, police and administrative paperwork, preparing and providing disclosure, attending pretrial conferences and adjournments to retain counsel: see R v. Ward, 2010 NSSC 66. More time is required if the case is complex. According to Durno, J., in George, the intake period starts when the information is sworn and ends when the parties are ready for trial and the system cannot accommodate them. In Askov, the Supreme Court of Canada declined to provide a time limit on the intake time, leaving the determination to be made jurisdiction by jurisdiction.
[46] In this case, the subject matter of the proceeding is not exceptionally complicated. There were delays by the Crown in providing full disclosure, including delay in obtaining DNA warrants and in providing the results of the DNA analysis to the defence. It took six months from the date of the original charges before full disclosure was made (August 25, 2007 – February 22, 2008) and a further two months to return to court (April 30, 2008). I am satisfied that the initial disclosure component of this case ought to have been completed in significantly less time. I would estimate a reasonable “inherent” time for disclosure in these circumstances as four months, and I am satisfied that it would have been possible to go to a preliminary hearing within six months after disclosure ought to have been completed. In my estimation, given the time required to schedule the two preliminary inquiries, namely six months from setting down dates, I believe that the preliminary inquiry could have been held prior to the end of July 2008.
[47] Actions of the accused. Two aspects of the conduct of the defendants are relevant here. The first concerns the delay caused by the defence by refusing to entering an election or plea until disclosure was complete. The Crown argues that the accused did not need complete disclosure in order to make an election and plead to the charge. The Crown claims that the delays between November 28, 2007, and January 30, 2008, and between January 30, 2008, and April 30, 2008, should be borne by the defence. The Crown claims that they were unaware that there were any disclosure issues in respect of the first period, and argues that the defence had sufficient disclosure to enter an election and plea on January 30, 2008. The failure to enter a plea on this date meant that a three-month adjournment occurred.
[48] According to the defendants, the reason that no plea was entered on January 30, 2008, is that on December 3, 2007, counsel for Mr. Garrison requested the name of the RCMP officer who was coordinating the issuance of the DNA warrants in order to arrange a meeting so that the RCMP could take the samples. He received this information on December 4, 2007, and sometime prior to January 15, 2008, samples were provided for DNA analysis. The report from the forensic laboratory, dated February 6, 2008, was forwarded to Mr. Singleton on February 22, 2008.
[49] In Godin, Cromwell, J. said, at para. 20:
... Had the Crown obtained the forensic evidence within a reasonable amount of time, the re‑election and preliminary inquiry could have happened much sooner. It may well have been beneficial to the appellant to have a preliminary inquiry. But, respectfully, that is not the point. The appellant was entitled to timely disclosure, he did not receive it, and no explanation for the failure to provide it has been advanced. I do not see anything in this which undercuts the appellant's position that this delay was unreasonable.
[50] This question has been dealt with in the discussion of waiver above. It was not unreasonable for the defence to decline to elect or plead until disclosure was complete, in the circumstances. Part of this time constitutes part of the inherent time requirement.
[51] A second concern is the fact that defence counsel were not available for the second preliminary at a time offered by the Court. In Godin, defence counsel was unavailable for the first offered date for the rescheduled preliminary inquiry. Cromwell, J., addressing the delay arising from the defence counsel not being available to proceed on a given date for the preliminary, stated, at para. 23:
... Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability. Here, there is no suggestion that defence counsel was unreasonable in rejecting the earlier date. Indeed, his prior conduct in seeking earlier dates for the preliminary inquiry — efforts which were ignored — suggests that he wished to proceed expeditiously. I respectfully agree with Glithero R.S.J., dissenting in the Court of Appeal, at para. 53, that: “To hold that the delay clock stops as soon as a single available date is offered to the defence and not accepted, in circumstances where the Crown is responsible for the case having to be rescheduled, is not reasonable.”
[52] Similarly, I am not convinced that the defence was unreasonable in its approach to scheduling the second preliminary inquiry. The one-month delay between August and September 2009 should not be charged against the accused. However, the delay occasioned on account of Mr. Brown’s need to retain counsel is not to be assessed against the Crown.
[53] Actions of the Crown. The passage of time from the laying of the first information on August 25, 2007, to the scheduled preliminary hearing on November 6-7, 2008, is well outside the eight-to-ten month guideline range, running to between 14 and 15 months. This is significant but not conclusive. Part of the delay represents the inherent time requirements of the case. The greater part of the remaining delay, however, is attributable to the Crown, on account of the failure to act promptly in obtaining a DNA analysis and thereby to make full disclosure.
[54] Time that elapses between the laying of the information and the preliminary hearing is not automatically counted against the Crown. It is necessary to consider whether there is prejudice. In George, supra, Durno J. said, “[t]he application of the guidelines will be influenced by the presence or absence of prejudice. In the final analysis, the critical assessment in a s. 11(b) application is not the total time the matter has been outstanding. Rather, the key factors are the length of systemic/institutional delay and prejudice” (para 53).
[55] The entire period between the date of the two preliminary inquiries is the responsibility of the Crown, with the exception of the delay arising from the adjournment for Mr. Brown to retain counsel. It was the conduct of the Crown that caused the delay between November 2008, when the original charges were dropped, and February 9, 2009, when the joint information was laid. It was also conduct of the Crown that necessitated a new preliminary hearing. I am not prepared to charge the defence for the inability to attend a preliminary hearing in August 2009. Therefore, the time between the first scheduled preliminary inquiry in November 2008 and the date the preliminary inquiry actually proceeded in September 2009, a period of ten months, is assessed against the Crown, save for the adjournment noted above.
[56] It must be emphasized that the Crown has not offered any authority for the assertion that the time during which there were no live charges against the accused should be treated as neutral time, rather than assessed against the Crown. It is true that the accused faced no bail conditions during this period. They did, however, have the expectation that new charges would be laid. This was not a situation where the Crown concluded that there was no reasonable possibility of conviction, and subsequently discovered new evidence. Instead, the Crown informed the accused from the outset that new charges would be laid. The Crown has provided no explanation for this delay, although there is evidence that it was intended to strengthen the case against the accused. This decision was open to the Crown as a matter of prosecutorial discretion, but that discretion does not provide a license for the Crown to delay the proceeding by dropping charges and re-charging the accused with a new time-line. There is no suggestion, for instance, that the Crown concluded that it lacked reasonable and probable grounds or that there was no reasonable possibility of conviction.
[57] Limits on institutional resources. Sopinka, J. discussed institutional delay in Morin, stating, at paras. 47-48:
Institutional delay is the most common source of delay and the most difficult to reconcile with the dictates of s. 11(b) of the Charter. It was the major source of the delay in Askov. As I have stated, this is the period that starts to run when the parties are ready for trial but the system cannot accommodate them. In Utopia this form of delay would be given zero tolerance. There, resources would be unlimited and their application would be administratively perfect so that there would be no shortage of judges or courtrooms and essential court staff would always be available. Unfortunately, this is not the world in which s. 11(b) was either conceived or in which it operates. We live in a country with a rapidly growing population in many regions and in which resources are limited. In applying s. 11(b), account must be taken of this fact of life....
....
How are we to reconcile the demand that trials are to be held within a reasonable time in the imperfect world of scarce resources? While account must be taken of the fact that the state does not have unlimited funds and other government programs compete for the available resources, this consideration cannot be used to render s. 11(b) meaningless. The Court cannot simply accede to the government's allocation of resources and tailor the period of permissible delay accordingly. The weight to be given to resource limitations must be assessed in light of the fact that the government has a constitutional obligation to commit sufficient resources to prevent unreasonable delay which distinguishes this obligation from many others that compete for funds with the administration of justice. There is a point in time at which the Court will no longer tolerate delay based on the plea of inadequate resources. This period of time may be referred to as an administrative guideline. I hasten to add that this guideline is neither a limitation period nor a fixed ceiling on delay. Such a guideline was suggested in Askov and was treated by some courts as a limitation period. I propose therefore to examine in some detail the purpose of a guideline commencing with an examination of its role in Askov.
[58] Sopinka, J. set a guideline of eight to ten months for institutional delay in provincial courts, plus six to eight months after committal to trial for a total administrative guideline for institutional delay of between 14 and 18 months (para. 55). He added, “[t]hese suggested time periods are intended for the guidance of trial courts generally. These periods will no doubt require adjustment by trial courts in the various regions of the country to take into account local conditions and they will need to be adjusted from time to time to reflect changing circumstances.”
[59] The guidelines set out in Morin were reaffirmed in Godin. where Cromwell, J. found that the guidelines had been “substantially exceeded,” but added that this fact alone did not render the delay unreasonable. The unreasonableness arose from “the considerable delay coupled with three additional facts: (1) the case is a straightforward one with few complexities and requiring very modest amounts of court time; (2) virtually all of the delay is attributable to the Crown and is unexplained, let alone justified; and (3) defence counsel attempted, unsuccessfully, to move the case ahead faster” (para. 5).
[60] The Crown has made certain submissions in relation to the availability of dates throughout the course of the proceeding. The Crown’s argument that the delay in scheduling the preliminary inquiry from August to September 2009 has been addressed. The Crown also raises an issue in relation to the appearance on April 30, 2008, when the matter was scheduled for preliminary inquiry on November 6 and 7, 2008, with a focus hearing on September 16, 2008, for Mr. Garrison, and a preliminary on November 25, 2008, with a focus hearing on October 7, 2008, for Mr. Brown. The Crown submits that it was available to proceed at earlier dates as was the Provincial Court. However, there is nothing on the record to show what dates, if any, were made available to the defence for the focus hearing or the preliminary hearing in September and November, respectively, other than the dates to which I have referred.
[61] According to the transcript of the proceedings on January 30, 2008, before MacDougall, J.P.C., Mr. Murray appeared for his client and on behalf of Mr. Singleton for Mr. Garrison. Mr. Murray stated that both accused were waiting for the DNA results and that Crown counsel had advised him that the results would not be available for eight more weeks. Crown counsel, Mr. Allen, agreed with this, and agreed to a date of April 30 for the next court appearance. There was also a request to amend Mr. Garrison’s undertakings so that he could leave Nova Scotia. There was no request to schedule a preliminary hearing, by the Crown or the defence.
[62] On April 30, 2008, Mr. Singleton advised Curran, C.J. P.C. that it would take two days to complete the preliminary hearing. He also sought a date for a focus hearing in September 2008. The court offered September 2, but Mr. Singleton was unavailable on that date due to holidays. The date was set for September 16. Mr. Murray indicated that he was available on November 25, 2008, for the preliminary hearing. He stated that he was aware that the court had available time in September 2008 but was unavailable at that time. The Crown agreed to this date and also agreed to the holding of a focus hearing on October 7.
[63] On September 16, 2008, Mr. Singleton was advised on the record that the informations against Mr. Garrison and Mr. Brown were being withdrawn. He was also advised that the Crown intended to re-charge both accused.
[64] The joint information was laid against both accused in February 2009, with a direction that they appear before the Provincial Court on March 11, 2009. Mr. Singleton attended for Mr. Garrison. Mr. Brown sought an adjournment so that he could contact counsel. Mr. Singleton was prepared to set a date for a preliminary hearing, but since the accused were jointly charged, he agreed it was appropriate to adjourn. The matter was adjourned to April 8.
[65] The preliminary hearing was held on September 17, 2009. Both Mr. Garrison and Mr. Brown were committed to stand trial. On September 22 the Supreme Court set down the trial to commence on June 25, 2010. This counts as one week of inherent delay. The Crown was prepared to proceed to trial earlier, but Mr. Singleton advised the court that the only dates available to both himself and Mr. Murray were those scheduled for trial.
4. Prejudice to the accused
[66] On the question of prejudice arising from delay, Cromwell, J. stated, in Godin:
[29] The Court of Appeal disagreed with the trial judge’s analysis of prejudice and found that any prejudice to the accused’s interest in a fair trial was too speculative to be considered. Partly on this basis, the Court of Appeal found that the delay was not unreasonable. I respectfully disagree. In light of the length of the delay, of the Crown’s failure to explain the multiple delays adequately, and of the prejudice to the accused’s liberty and security interests — if not also to his interest in a fair trial — the delay in this case was unreasonable.
[30] Prejudice in this context is concerned with the three interests of the accused that s. 11(b) protects: liberty, as regards to pre‑trial custody or bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge; and the right to make full answer and defence, insofar as delay can prejudice the ability of the defendant to lead evidence, cross‑examine witnesses, or otherwise to raise a defence. See Morin, at pp. 801‑3.
[31] The question of prejudice cannot be considered separately from the length of the delay. As Sopinka J. wrote in Morin, at p. 801, even in the absence of specific evidence of prejudice, “prejudice may be inferred from the length of the delay. The longer the delay the more likely that such an inference will be drawn.” Here, the delay exceeded the ordinary guidelines by a year or more, even though the case was straightforward. Furthermore, there was some evidence of actual prejudice and a reasonable inference of a risk of prejudice.
[67] The trial judge had found that the delay in the case was well beyond any reasonable interpretation of the Morin guideline, and that the accused had suffered prejudice as a result. The charges had been hanging over the appellant for a long time, and he had been subject to strict bail conditions.
[68] Mr. Garrison has filed an affidavit in which he alleges that he has suffered prejudice on account of the delay. A review of this evidence, however, does not provide any basis to differentiate between the harm suffered by Mr. Garrison because he stands charged with a serious criminal offence, and harm resulting from the delay in having his trial. Mr. Brown has not filed an affidavit alleging actual prejudice. However, the Court has to determine, given the period of delay, whether it is appropriate to infer prejudice.
[69] Mr. Garrison and Mr. Brown have been facing these charges since August 25, 2007. The trial is scheduled for June 28 to July 2, 2010. This represents a period of 34 months, well in excess of the guidelines. Both accused have been subject to conditions, such as remaining within the province, abstaining from alcohol, not having contact with the complaint and one of the witnesses. These conditions have been reduced over time. There have been numerous court appearances. After the withdrawal of the first informations, they were aware that they would be re-charged. Although the conditions imposed on Mr Garrison and Mr Brown were less onerous than those in Godin, they nevertheless restricted their movements and their ability to interact with other people while they were charged under the original informations.
[70] The court in Godin discussed the possibility of a inference of prejudice. Cromwell, J. stated, at para. 34:
The majority of the Court Appeal acknowledged that these charges had been hanging over the appellant’s head for a long time. It was reasonable, in my view, to infer as the trial judge did that the prolonged exposure to criminal proceedings resulting from the delay gave rise to some prejudice. The majority of the Court of Appeal appears to have given no weight to this consideration. The majority of the Court of Appeal also disagreed with the trial judge’s findings relating to prejudice flowing from restrictive bail conditions. The appellant had been on judicial interim release for more than two years. It is true that his bail conditions were relaxed as the delay lengthened, but the trial judge did not err in the circumstances of this case by taking this consideration into account as one aspect relevant to his overall assessment of whether the long delay was unreasonable.
[71] The majority of the Court of Appeal had concluded that the appellant's right to make full answer and defence right had not been prejudiced. Justice Cromwell agreed with the dissent of Glithero, R.S.J., stating, at paras. 36-38:
The nature of the risk to the appellant’s ability to make full answer and defence was well set out by Glithero R.S.J..... He noted that the case was likely to turn on credibility and, in particular, on cross‑examination of the complainant and her boyfriend in light of the DNA test results and prior statements. The dissenting judge concluded that the extra passage of time made it more likely that the ability of the appellant to cross‑examine effectively had been diminished.
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.
Moreover, it does not follow from a conclusion that there is an unquantifiable risk of prejudice to the appellant’s ability to make full answer and defence that the overall delay in this case was constitutionally reasonable. Proof of actual prejudice to the right to make full answer and defence is not invariably required to establish a s. 11(b) violation. This is only one of three varieties of prejudice, all of which must be considered together with the length of the delay and the explanations for why it occurred.
[72] The defence of Mr. Garrison and Mr. Brown will largely depend on the credibility of the complainant and other witnesses. I infer that witnesses’ recollections will fade over time.
Conclusion
[73] A delay of 34 months in bringing this matter to trial is striking. That part of the delay that was not inherent in the process was substantially attributable to the Crown. The results of the DNA testing were provided to the accused some seven months after they were first charged. The preliminary inquiry scheduled for November 2008 never occurred; it took another ten months to hold a preliminary inquiry. This is a critical aspect of the delay. Another delay was length of time before the first preliminary inquiry. Necessary disclosure was not completed until late February 2008. Holding a preliminary inquiry in September 2009, approximately 25 months after the accused were originally charged, was clearly excessive and unreasonable. As in Godin, the case is relatively straightforward. It is scheduled for four days. The preliminary inquiry took one day. Yet the proceeding is taking 34 months to get to trial. Of this cumulative time, the Crown is responsible for approximately 12 and 13 months, relating particularly to the delay in getting the matter to a preliminary inquiry.
[74] All that being said, having concluded that there has been unreasonable delay, it is necessary to consider what, if any, prejudice to the accused has been established. Godin indicates that prejudice can be inferred from the delay, and that the longer the delay, the more likely it is that such an inference will be drawn. Cromwell, J. also referred to evidence of actual prejudice, in addition to the inference of prejudice. Further, the accused in Godin was subject to fairly strict bail conditions that were relaxed over time. He was on judicial interim release for the entire period of delay. In this case, the accused were subject to no conditions between September 16, 2008, when the charges were withdrawn, and February 25, 2009, when they were re-laid.
[75] Addressing the impact of prejudice to the ability to make full answer and defence in Godin, Cromwell, J. stated that the case against the accused was based largely on credibility, particularly cross-examination of the complainant and her boyfriend in light of the DNA test results and prior statements regarding the last time they had sexual relations. The passage of time made it more likely that the ability to cross-examine would be diminished. In the present case, there is no such issue with the DNA results, although they do not appear to implicate Mr. Brown, based on the preliminary inquiry transcript. Ultimately, however, I am satisfied that the specific risk from a deteriorating ability to cross-examine is less pronounced than in Godin.
[76] In addition, in Godin, Cromwell, J. noted that the defence had made extensive attempts to advance the process, repeatedly suggesting alternative dates without response from the Crown, with no explanation from the Crown as to why the case was not expedited. In this case, while the accused was clearly not responsible for the delay to any degree, there was not an apparent drive to move matters forward, other than when defence counsel inquired about what officer was co-ordinating the DNA warrants.
[77] In considering the factors of delay and prejudice, the court must keep sight of the seriousness of the charge and of the public interest in seeing the charge brought to trial. This does not mean the Crown has a license to drop and re-open cases at will, without consequences under s. 11(b). There is no doubt that the Crown has caused a serious and unreasonable delay. In the absence of actual evidence of prejudice arising from the delay, however, I am not persuaded that the limited degree of prejudice that might be inferred in these circumstances is compelling enough reason to stay the joint information.
Abuse of process
[78] Mr. Garrison also seeks a stay under s. 24(1) of the Charter of Rights and Freedoms, claiming an abuse of process in accordance with s. 7. Mr. Brown does not join this application.
[79] Section 7 provides that “[e]veryone 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.” On an application alleging abuse of process, the foundational case is R v. O'Connor, [1995] 4 S.C.R. 411. In that case, the judge had granted a stay of proceedings on account of the failure of the Crown to fulfill its disclosure obligations concerning medical records of the complainants in respect of a number of sexual offense. L’Heureux-Dube, J. said, at para. 73:
As I have already noted, the common law doctrine of abuse of process has found application in a variety of different circumstances involving state conduct touching upon the integrity of the judicial system and the fairness of the individual accused's trial. For this reason, I do not think that it is helpful to speak of there being any one particular "right against abuse of process" within the Charter. Depending on the circumstances, different Charter guarantees may be engaged. For instance, where the accused claims that the Crown's conduct has prejudiced his ability to have a trial within a reasonable time, abuses may be best addressed by reference to s. 11(b) of the Charter, to which the jurisprudence of this Court has now established fairly clear guidelines (Morin, supra). Alternatively, the circumstances may indicate an infringement of the accused's right to a fair trial, embodied in ss. 7 and 11(d) of the Charter. In both of these situations, concern for the individual rights of the accused may be accompanied by concerns about the integrity of the judicial system. In addition, there is a residual category of conduct caught by s. 7 of the Charter. This residual category does not relate to conduct affecting the fairness of the trial or impairing other procedural rights enumerated in the Charter, but instead addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process.
[80] O'Connor was followed inCanada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, where a court had granted a stay of a citizenship revocation proceeding taken against three Canadian citizens. The issue was whether a reasonable person would conclude that the judicial independence of the court had been infringed by a private meeting between the Chief Justice of the Federal Court and a high official of the Department of Justice. In allowing the appeal, that the Federal Court of Appeal stated that there was no reasonable apprehension of interference with judicial independence.
[81] The Supreme Court of Canada dismissed the appeal. The Court stated, at para. 89, that “[m]ost often a stay of proceedings is sought to remedy some unfairness to the individual that has resulted from state misconduct. However, there is a ‘residual category’ of cases in which a stay may be warranted.” The Court emphasized that “[t]he residual category ... is a small one. In the vast majority of cases, the concern will be about the fairness of the trial.” The Court continued, at paras. 90-92:
If it appears that the state has conducted a prosecution in a way that renders the proceedings unfair or is otherwise damaging to the integrity of the judicial system, two criteria must be satisfied before a stay will be appropriate. They are that:
(1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and
(2) no other remedy is reasonably capable of removing that prejudice. (O’Connor, supra, at para. 75.)
The first criterion is critically important. It reflects the fact that a stay of proceedings is a prospective remedy. A stay of proceedings does not redress a wrong that has already been done. It aims to prevent the perpetuation of a wrong that, if left alone, will continue to trouble the parties and the community as a whole in the future. See O’Connor, at para. 82. For this reason, the first criterion must be satisfied even in cases involving conduct that falls into the residual category. See O’Connor, at para. 75. The mere fact that the state has treated an individual shabbily in the past is not enough to warrant a stay of proceedings. For a stay of proceedings to be appropriate in a case falling into the residual category, it must appear that the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society’s sense of justice. Ordinarily, the latter condition will not be met unless the former is as well ‑‑ society will not take umbrage at the carrying forward of a prosecution unless it is likely that some form of misconduct will continue. There may be exceptional cases in which the past misconduct is so egregious that the mere fact of going forward in the light of it will be offensive. But such cases should be relatively very rare.
After considering these two requirements, the court may still find it necessary to consider a third factor. As L’Heureux‑Dubé J. has written, “where the affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases, then the administration of justice is best served by staying the proceedings”: R. v. Conway, [1989] 1 S.C.R. 1659, at p. 1667. We take this statement to mean that there may be instances in which it will be appropriate to balance the interests that would be served by the granting of a stay of proceedings against the interest that society has in having a final decision on the merits. This is not to say, of course, that something akin to an egregious act of misconduct could ever be overtaken by some passing public concern. Rather, it merely recognizes that in certain cases, where it is unclear whether the abuse is sufficient to warrant a stay, a compelling societal interest in having a full hearing could tip the scales in favour of proceeding.
[82] The Tobiass decision was followed in R v. Regan, [2002] 1 S.C.R. 297, 2002 SCC 12. This case arose from the decision of a trial judge to grant a stay of prosecution on account of abuse of process. The trial judge had found that the prosecutorial abuse would continue to taint the trial and relied on the residual category. This decision was set aside by the Nova Scotia Court of Appeal and the appeal to the Supreme Court was denied. Lebel, J. said, for the majority, at paras. 55-57:
As discussed above, most cases of abuse of process will cause prejudice by rendering the trial unfair. Under s. 7 of the Charter, however, a small residual category of abusive action exists which does not affect trial fairness, but still undermines the fundamental justice of the system (O’Connor, at para. 73). Yet even in these cases, the important prospective nature of the stay as a remedy must still be satisfied: “[t]he mere fact that the state has treated an individual shabbily in the past is not enough to warrant a stay of proceedings” (Tobiass, at para. 91). When dealing with an abuse which falls into the residual category, generally speaking, a stay of proceedings is only appropriate when the abuse is likely to continue or be carried forward. Only in “exceptional”, “relatively very rare” cases will the past misconduct be “so egregious that the mere fact of going forward in the light of it will be offensive” (Tobiass, at para. 91).
Any likelihood of abuse which will continue to manifest itself if the proceedings continue then must be considered in relation to possible remedies less drastic than a stay. Once it is determined that the abuse will continue to plague the judicial process, and that no remedy other than a stay can rectify the problem, a judge may exercise her or his discretion to grant a stay.
Finally, however, this Court in Tobiass instructed that there may still be cases where uncertainty persists about whether the abuse is sufficient to warrant the drastic remedy of a stay. In such cases, a third criterion is considered. This is the stage where a traditional balancing of interests is done: “it will be appropriate to balance the interests that would be served by the granting of a stay of proceedings against the interest that society has in having a final decision on the merits”. In these cases, “an egregious act of misconduct could [never] be overtaken by some passing public concern [although] . . . a compelling societal interest in having a full hearing could tip the scales in favour of proceeding” (Tobiass, at para. 92).
[83] The Ontario Court of Appeal recently considered abuse of process in R v. Zarinchang, 2010 ONCA 286, where the Court summarized (at para. 57) the principles derived from the decisions of the Supreme Court of Canada:
From the above cases in the Supreme Court, the following principles emerge:
(1) There are two categories of cases that may attract a stay of proceedings. The first category implicates the fairness of an individual’s trial resulting from state misconduct. The second involves a residual category unrelated to the fairness of the trial, but involves state conduct that contravenes fundamental notions of justice, which undermines the integrity of the judicial process.
(2) In considering whether to grant a stay of proceedings under either of the above categories, the following criteria must be satisfied:
(i) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; it must be directed at prospective prejudice, not to redress past prejudice; and
(ii) no other remedy is reasonably capable of removing that prejudice.
(3) In cases in either of the above categories where there remains some uncertainty as to whether the abuse is sufficiently serious to create the prejudice to warrant a stay, there is a third criterion that the court may consider – the balancing of the interests in granting a stay against society’s interest in having a trial on the merits.
[84] The applicant refers to R v. Cole (1998), 168 N.S.R. (2d) 170 (S.C.), where the Crown had entered a stay of proceedings. Hood, J. held that an application could have been made to the court for an adjournment of the proceedings but this was not done. The Court found that there had been an abuse of process and the appropriate remedy was a stay of proceeding. The Crown had argued that it was justified in staying the proceedings because otherwise there would have been multiple trials with increased costs, multiple court time and resources. Hood, J. held that the Crown’s conduct in entering a stay rather than seeking an adjournment circumvented the court’s ruling on the issue of an adjournment and provided evidence of improper motive. The Crown's conduct was sufficiently unfair and vexatious to offend fundamental notions of justice and undermine integrity of judicial process. I am not convinced that the situation in Cole provides any direction on the facts of the present case.
[85] The applicant also refers to Rv Humenjuk, [2001] O.J. No. 5684, 2001 CarswellOnt 4969 (Ont. Sup. Ct. J.), where the accused was a lottery outlet employee whose employment was terminated due to allegations of theft. After suing for wrongful dismissal, the accused was charged with theft over $5,000 and elected a jury trial. At the preliminary inquiry, the judge transferred the matter to the Ontario Court of Justice for trial on charge of theft under $5,000. When the accused sought certiorari, the Crown withdrew the information and filed a new one for theft under $5,000. The accused successfully sought stay due to abuse of process, on the basis that the Crown was attempting to avoid an unfavourable ruling and the denial of the right to a jury trial was prejudicial to accused. It was a jurisdictional error to remit the matter back to the Court of Justice, which did not have exclusive jurisdiction. It was true that before the accused pleaded the Crown had the absolute right to withdraw the information. However, the fact that the charge arose almost two years before in response to a civil claim for wrongful dismissal, the misdirection of the justice that presided at the preliminary inquiry, the jurisdictional error at the preliminary inquiry and the general conduct of the prosecution, militated in favour of a stay of proceedings. The totality of the circumstances – including the timing of the charge, the misdirection and error at the preliminary inquiry and the general conduct of the prosecution – raised serious concerns about the administration of justice. The prejudice and affront to the integrity of the justice system was disproportionate to the societal interest in the effective prosecution of criminal cases. It is clear that the reason the stay was granted on account of abuse of process was not simply because the information had been withdrawn and relaid, but because of the multiplicity of factors. As such, I am not satisfied that this case is of assistance. The factual situations are completely dissimilar.
[86] In the course of the hearing, counsel for the applicant asserted that rather than withdrawing the informations against Mr. Garrison and Mr. Brown, the Crown could have entered a stay of proceedings for up to one year. If the Crown had chosen that course of action, I am unable to understand how the accused could be heard to say that such a decision would amount to an abuse of process. Conducting additional investigation or seeking to identify a possible wrongdoer is the clear responsibility of the police, as the public has an interest in seeing individuals who engage in criminal behaviour brought to justice: see, for instance, R v. James, 2008 Carswell Ont 9132 (Ont. Sup. Ct. J.) at para 41, where Trafford, J. (in the course of discussing s. 11(b)) described the “recognized secondary interest of the public not only in the expeditious trials of serious allegations of crime but also in the conduct of trials on the merits.”
[87] The Supreme Court has stated that delay standing alone is not a basis for finding an abuse of process resulting in a stay of proceedings; see, for instance, R. v. L. (W.K.), [1991] 1 S.C.R. 1091, where Stevenson, J. stated, at paras. 21-24:
Many of the cases which have considered the issue have held that "mere delay" or "delay in itself" will never result in the denial of an individual's rights. This language is imprecise. Delay can, clearly, be the sole "wrong" upon which an individual rests the claim that his or her rights have been denied. The question is whether an accused can rely solely on the passage of time which is apparent on the face of the indictment as establishing a violation of s. 7 or s. 11(d).
Delay in charging and prosecuting an individual cannot, without more, justify staying the proceedings as an abuse of process at common law. In Rourke v. The Queen, [1978] 1 S.C.R. 1021, Laskin C.J. (with whom the majority agreed on this point) stated that (at pp. 1040‑41):
Absent any contention that the delay in apprehending the accused had some ulterior purpose, courts are in no position to tell the police that they did not proceed expeditiously enough with their investigation, and then impose a sanction of a stay when prosecution is initiated. The time lapse between the commission of an offence and the laying of a charge following apprehension of an accused cannot be monitored by Courts by fitting investigations into a standard mould or moulds. Witnesses and evidence may disappear in the short run as well as in the long, and the accused too may have to be sought for a long or short period of time. Subject to such controls as are prescribed by the Criminal Code, prosecutions initiated a lengthy period after the alleged commission of an offence must be left to take their course and to be dealt with by the Court on the evidence, which judges are entitled to weigh for cogency as well as credibility. The Court can call for an explanation of any untoward delay in prosecution and may be in a position, accordingly to assess the weight of some of the evidence.
Does the Charter now insulate accused persons from prosecution solely on the basis of the time that has passed between the commission of the offence and the laying of the charge? In my view, it does not.
Staying proceedings based on the mere passage of time would be the equivalent of imposing a judicially created limitation period for a criminal offence. In Canada, except in rare circumstances, there are no limitation periods in criminal law. The comments of Laskin C.J. in Rourke are equally applicable under the Charter.
[88] In my view, the applicant has not demonstrated that there was an abuse of process and therefore there is no ground for a stay on that basis. A stay of proceedings for abuse of process can only be granted in the clearest of cases, which this is not.
J.