R v RJC, 2011 ABQB 555

Court of Queen ’ s Bench of Alberta Citation: R v RJC, 2011 ABQB 555 Date: 20110916 Docket: 080935570Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - RJC Applicant Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice R.J. Hall _______________________________________________________ [ 1 ] The Crown alleges in this matter that the Accused sexually assaulted his daughter between January 1, 1984 and January 1, 1986 contrary to

section 246.1(1) of the Criminal Code of Canada .

[ 2 ] The Accused has made application for a judicial stay of proceedings pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms , based upon the grounds of a breach of his

section 11(

b) Charter Rights and/or because of an abuse of process and cumulative violations of

section 7 and

section 11(

d) of the Charter . [ 3 ] The offence in question is alleged by the Complainant to have occurred between January 1, 1984 and January 1, 1986. However, it was not until November 15, 2006 that the Complainant attended 8 District Office of the Calgary Police Service and reported her sexual assault allegations. [ 4 ] A timeline showing the police involvement thereafter and showing the timeline after the Accused was arrested in relation to the charges was marked as Exhibit VD5. The contents of that timeline are set out below: Police Involvement 1.

November 15, 2006 - The Complainant attends 8 District office and reports sexual assault allegations to Cst Leong and Mair of the Calgary Police Service; 2. November 16, 2006 - The Complainant, her co worker AM, and her brother, RC attend 8 district office and advise Cst. Mair that she had been assaulted by RJC (the Applicant) in August of 2006. They also advised that the complainant was threatened by the applicant and noted his propensity for violence. They advised that he had some firearms in his residence in [...] in Northwest Calgary. Cst.

Mair is also advised that the applicant plans to move to British Columbia on November 25, 2006. The file is to be forwarded to the Calgary Sex Crimes Unit; 3. November 21, 2006 - A search warrant is obtained for [...] Road NW and some firearms, ammunition and other weapons seized. 4. November 22, 2006 - The applicant is arrested and charged for assault and uttering threats and some firearms offences; 5.

Detective Smith and Detective Foisie conduct a video taped interview with the complainant regarding the historical sexual assault allegations; Detective Smith and Foisie are transferred out of the Sex Crimes Unit in December of 2006 and have no further involvement in this file. 6. April 11, 2007 - the applicant pleads guilty to some firearm offences and enters into a Peace Bond for one year. The assault and threats charges are withdrawn. 7. April 11, 2007 - The applicant begins being supervised in the community by Calgary Probation Officer Brenda Lorencz.

Community supervision is set to expire on April 10, 2008; 8. June 26, 2007 - The file is re-assigned to Det. Stotschek as Det. Foisie and Det. Smith have been transferred to the Homicide Unit. Over the next few months Det. Stotschek attempts to contact the accused without success. His information is that the applicant has moved to the [...] area of British Columbia; 9. July 15, 2008 - Detective Stotschek applies for a warrant for the applicant's arrest; 10. July 25, 2008 - Warrant effectuated and information sworn;

11. April 15,2009 - Applicant is arrested in relation to sexual assault charges; TIMELINE Post Charge 1. April 17, 2009 - First appearance, applicant released on Form 32 Recognizance; 2. May 9, 2009 - Disclosure provided, designation of counsel filed; 3. June 5, 2009 - Defence election made, trial by Judge and Jury in Queen's Bench. Matter adjourned to set a date for the preliminary inquiry; 4. June 11, 2009 - Crown Prosecutor assigned, Paul Mason, matter adjourned; 5. June 25, 2009 - Matter adjourned; 6.

July 2, 2009 - Pre Preliminary meeting held and Preliminary Inquiry set for I day to be held March 8, 2010; 7. March 8, 2010 - Crown makes adjournment application due to “not functioning disclosure DVD/CD.” Defence makes submissions, application granted. 8. August 10, 2010 - File is re-assigned to Crown Prosecutor, Joe Mercier; 9. October 4, 2010 - Preliminary Inquiry held, accused committed to stand trial; 10. December 3, 2010 - Queen's Bench Arraignment, trial set for April 11-15th with jury selection taking place on April 8, 2011 and a Pre-Trial Conference on February 4th, 2010 11.

February 4, 2011 - Pre trial conference with Justice ERB, an extra day for trial is added because defence advises there may be a delay application. 12. March 9, 2011 - Defence counsel sends an email to the Crown prosecutor indicating there will be an application under S. 7 and 11 of the Charter of rights and freedoms. 13. March 24, 2011 - Official Charter Notice is filed with the Court. 14.

April 4, 2011 -The matter is brought before Justice Sullivan and the Jury Selection is cancelled and the matter to return on April 13th, 2011 for the Charter application. [ 5 ] The Applicant/Accused maintains that there has been a pre-charge delay resulting in a violation of the Applicant’s

section 7 and

section 11(

d) Charter Rights , and there has been post-charge delay resulting in a violation of the Applicant’s

section 11(

b) Charter Rights . Further, the Applicant argues that the pre-charge delay and post-charge delay and negligence in the investigation should, on a cumulative basis, amount to an abuse of process under

section 7 of the Charter . I will address these allegations in a chronological order. I will deal first with the allegations of pre-charge delay, thereafter the allegations of post-charge delay, and thereafter address the cumulative effect, if any on the Applicant’s

section 7 Charter Rights .

[6]

Section 7 of the Charter provides: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice. [7]

Section 11(

b) and (

d) provide as follows: 11. Any person charged with an offence has the right ... (

b) to be tried within a reasonable time; ... (

d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; Pre-Charge Delay by the Complainant [8] The Applicant submits that the pre-charge delay in the case at bar can be separated into two distinct categories, the firstbeing a pre-charge delay associated with the Complainant’s late reporting of the alleged sexual assaults, and secondly, the pre-chargedelay associated with The Calgary Police Services investigation. [9] Delay in reporting sexual offences has been given greater latitude by the Courts than might be the case for other offences.

InR. v. W.K.L., (SCC), [1991] 1 SCR 1091 at paras 23 and 24, the Supreme Court of Canada stated: For victims of sexual abuse to complain would take courage and emotional strength in revealing those personal secrets, in opening oldwounds. If proceedings were to be stayed based solely on the passage of time between the abuse and the charge, victims would berequired to report incidents before they were psychologically prepared for the consequences of that reporting. That delay in reporting sexual abuse is a common and expected consequence of that abuse has been recognized in other contexts.

In theUnited States, many states have enacted legislation modifying or extending the limitation period for the prosecution of sexual abusecases, in recognition of the fact that sexual abuse often goes unreported, and even undiscovered by the complainant, for years. Thislegislation has, to date, withstood constitutional challenges. (See, for example, Durga M. Bharam, "Statute of Limitations for ChildSexual Abuse Offenses: A Time for Reform Utilizing the Discovery Rule" (1989), 80 J. Crim.

L. & Criminology 842.) Establishing ajudicial statute of limitations would mean that sexual abusers would be able to take advantage of the failure to report which theythemselves, in many cases, caused. This is not a result which we should encourage. There is no place for an arbitrary rule. [10] In the voir dire evidence of the Complainant, she has indicated that, from the time of the alleged sexual abuse until she was inher late twenties, she was afraid of the threats made by the Accused against her, if she were to divulge the assaults to anyone.

She theninvolved herself in counselling, and she decided to concentrate on forgiving her father and moving forward. It was not until the incidentof a physical assault had occurred in September 2006 that she decided it was appropriate to complain to the City Police. [11] The Applicant maintains that the pre-charge delay resulting from the Complainant’s late reporting of the allegations to theauthorities has severely prejudiced the Applicant’s ability to make full answer in defence, and thus deprived him of the ability to receivea fair trial. The Applicant argues that the governing case in this matter is R. v.

Antinello, 1995 ABCA 117 , [1995] AJ No 214,ABCA and notes that the Court stated therein, at paras 26 and 27: 26 ... it was argued that the judge erred here because the accused never established, on the balance of probabilities, that he suffered

actual prejudice in making a full answer and defence. To do that, he had to show that there was something "out there" about Stapletonthat the defence would have found if it had had more time, but failed to find in the allotted time. 27 With respect, an accused need not meet that impossible burden. What he must show on the balance of probabilities is that he lost arealistic opportunity to garner evidence, or make decisions about the defence. [emphasis added] [12] The Crown argues that R. v. Antinello is not governing.

It refers back to the Supreme Court of Canada decision in R. v.W.K.L., at paras 23 and 24 where the Supreme Court of Canada stated: Staying proceedings based on the mere passage of time would be the equivalent of imposing a judicially created limitation period for acriminal offence. In Canada, except in rare circumstances, there are no limitation periods in criminal law. The comments of Laskin C.J.in Rourke are equally applicable under the Charter.

Section 7 and s. 11(

d) of the Charter protect, among other things, an individual's right to a fair trial. The fairness of a trial is not,however, automatically undermined by even a lengthy pre-charge delay. ... [13] Further, the Crown argues that the Albert Court of Appeal distinguished Antinello from the circumstances at bar in thedecision of R. v. Grimes, 1998 ABCA 9 , 122 CCC (3d) 331. In Grimes, the accused was charged with sexual assault of a highschool student. The complainant worked for the accused on a work-experience program set up by her school. The accused applied for astay of proceedings, arguing that his right to make full answer and defence under

section 7 of the Charter had been infringed due to lostevidence. The evidence in question was school records which would have disclosed the dates on which the complainant worked forGrimes, and bank records which allegedly would have assisted him in attacking the credibility of the complainant. Grimes argued thatthe case should be governed by Antinello, i.e., that all he had to show was he had lost realistic opportunity to garner evidence, or makedecisions about the defence. The Court of Appeal rejected that argument.

It noted that Antinello was a Crown disclosure case in whichthe evidence had not been permanently lost. The Crown, in that case, had not disclosed the evidence in a timely manner. The remedyordered was a new trial, not a stay of proceedings. The Court in Grimes explained: The often quoted test in Antinello relates to the test to be applied in Crown disclosure cases in deciding whether a breach of the Crownduty to disclose occurred and in ordering disclosure. It is not the applicable test for determining whether proceedings should be stayed.

Infact, the Court in Antinello carefully distinguished between the test to be applied in the case before it, where a new trial was ordered, andthe test to be applied on an application for a stay of proceedings ... [14] The Court went on to state the correct test at paragraph 25: We do not read these cases as suggesting that a stay of proceedings will be granted in a case where, without the evidence in question, itwill be more difficult for the accused to make out his case or that a mere finding of materiality will suffice.

To stay proceedings, the trialjudge must be satisfied on a balance of probabilities that the lost evidence is of such major importance to the defence case that a fair trialcannot be had without it, or that the loss of that evidence deprived the accused of the opportunity to make a full answer and defence.Then, only as a last resort and in the “clearest of cases”, should a stay be granted. [15] The Court noted at paragraph 30 that in lost evidence cases, it is important to recognize that the right of the accused is not toa perfect trial but a fair trial. [16] I agree with the Crown on this point.

The Applicant must establish that any lost evidence is of such major importance to thedefence case that a fair trial cannot be had without it. Then, only as a last resort and in the “clearest of cases” may a stay of proceedingsbe granted. [17] The Applicant’s major complaint is that his first wife, the mother of the Complainant, has died in the interim, in 2001. TheComplainant maintains that some of the sexual assaults took place in the family home while her mother was also in that home. There is

no suggestion that the mother witnessed the sexual assaults, but the Complainant surmises that she was aware of them. [18] Further, the Complainant maintains that she told her mother about the sexual assaults in approximately 1987 or 1988, andagain in 1998 and 1999. The Applicant maintains the mother might well refute those allegations if she was able to give evidence.

Herevidence, were it available, might contradict the Complainant, and thereby undermine the Complainant’s credibility. [19] The Complainant’s sister gave evidence at the voir dire and indicated that she had a conversation with her mother, possibly in1997, after a telephone conversation with the Complainant.

She says that her mother was upset and stated that she did not believe theComplainant and she couldn’t see it happening. [20] There is no doubt that testimony from the mother would have been relevant and germane in these proceedings, both withrespect to whether she observed or even suspected any sexual assaults were taking place, and also with respect to complaints made to herby the Complainant, if any, about the alleged occurrences.

However, there is no way of knowing whether the evidence of the mother,were she able to give it, would assist the Defence or the Crown; and there is no reason why the Court should presume that it would be ofassistance to the Defence. [21] The Applicant’s second complaint of prejudice is that a man who lived temporarily in the family home during the relevantperiod, identified as Mr. VS, cannot be located and so his evidence as to what he observed during that time has been lost. There is nosuggestion Mr.

VS was ever questioned or volunteered information as to whether he had observed anything, or can refute any allegations.We have no way of knowing what Mr. Simm’s evidence would be. There is no reason why the Court should presume that Mr. VS’sevidence would be of assistance to the Defence. [22] The Ontario Court of Appeal considered a similar set of facts in R. v. A.(D.), (ON CA), 76 CCC (3d) 1. Inthat case, the accused was charged with sexual offences against his daughter, niece and grand-daughter.

The accused brought anapplication for a stay of proceedings arguing that his right to make full answer in defence had been prejudiced due to the death of twopeople who had been living in the house at the time of the alleged sexual assaults. The trial judge found an infringement of

section 7 andordered a stay of proceedings. However, the Ontario Court of Appeal allowed the appeal. Dubin C.J.O. stated, at para 29: It is also to be noted, as stated by Chief Justice Laskin in R. v. Rourke , ..., that "witnesses and evidence may disappear in the short runas well as in the long". But, furthermore, the nature of the evidence which the deceased may have provided is purely speculative. Thereis no basis to conclude that that evidence would be material in the sense that it would likely have assisted the defence in rebutting theCrown's case.

Indeed, it could well have supported the Crown's case against the respondent. The trial judge acknowledged that there wasno basis that he could conclude that if the evidence of the deceased had been available at trial, it would have aided the defence, but in hisview all that was necessary was that the deceased could have testified on some relevant issues, without more. In this respect, I think heerred. [23] While the decision of the Ontario Court of Appeal is not binding on this Court, it is of significant persuasive value.

As I findthat there is no basis upon which I can conclude that the evidence of the mother or of Mr. Simm, if available, would have assisted theDefence rather than the Crown, the Applicant has failed to persuade me that he cannot have a fair trial without their evidence. [24] Accordingly, in respect of the 20-year delay between the time of the alleged sexual assaults, and the time the Complainantcame forth and made complaint to the police, I find that there has been no infringement of the Applicant’s

section 7 Charter rights, norhas he been denied a fair trial under

section 11(

d) of the Charter. Pre-Charge Delay after Complaint was made [25] The next time period to be considered is the time between the making of the complaint and the charges being laid, that isbetween November 15, 2006 and July 15, 2009, a period of one year and eight months. [26] The Complainant reported her allegations to Constables Leong and Mair on November 15, 2006. A statement was taken fromthe Complainant. The officers obtained a variety of contact information from the Complainant, including the cell phone number of the

Applicant, all of which was recorded in Constable Leong’s notes. The file was then forwarded to the Calgary Sex Crime Unit. A “PIMS”report was compiled that cross-referenced the sex assault allegations with the assault/uttering threats police file. The purpose of thecross-reference report was to ensure the information pertaining to the assault/threats investigation would be available to the Calgary SexCrimes Unit. The report was sent along electronically via PIMS on November 16, 2006.

Constable Mair gave evidence that it is standardprotocol for officers to have their notes scanned into the system so that the information is available for a subsequentinvestigator/detective. [27] On December 5, 2006, Detectives Smith and Foisie of the Calgary Sex Crimes Unit conducted a videotaped interview withthe Complainant regarding the historical sexual assault allegations. Detectives Smith and Foisie were then transferred to the HomicideUnit in late December 2006 and had no further involvement with the file. [28] Detective Stotschek’s staff sergeant assigned him this file on June 26, 2007.

Upon receiving the file, he noted that itcontained DVDs and considerable paperwork.

In the detective’s opinion, the file “was fairly complete”. [29] Detective Stotschek maintains he set out to locate the whereabouts of the Applicant, maintaining he conducted numeroussearches and got in contact with several family members in an attempt to locate the Accused so that an interview could be arranged.Through those inquiries, Detective Stotschek learned that the Applicant had moved to British Columbia just outside of [...]. [30] Arising out of the assault and uttering threat allegations, the Applicant was bound by a peace bond from April 10, 2007 toApril 10, 2008.

In addition, the Applicant’s cell phone number was contained in Constable Leong’s notes. However, Detective Stotschekmaintains he was unable to locate the Applicant. He acknowledged that files were often “triaged” in the Sex Crimes Unit, and that thesubject file was given a lower priority on account of it being a historical sexual assault in which the victim was not in danger. Finally, onJuly 15, 2008, Detective Stotschek applied for a warrant for the arrest of the Applicant. The Applicant was not in fact arrested until April15, 2009. [31] The Supreme Court of Canada looked at this issue in R. v.

Kalanj, (SCC), [1989] 1 SCR 1594, stating atpara 19: The length of the pre-information or investigatory period is wholly unpredictable. No reasonable assessment of what is, or is not, areasonable time can be readily made. Circumstances will differ from case to case and much information gathered in an investigationmust, by its very nature, be confidential. A court will rarely, if ever, be able to fix in any realistic manner a time limit for theinvestigation of a given offence.

It is notable that the law -- save for some limited statutory exceptions -- has never recognized a timelimitation for the institution of criminal proceedings. Where, however, the investigation reveals evidence which would justify theswearing of an information, then for the first time the assessment of a reasonable period for the conclusion of the matter by trial becomespossible. It is for that reason that s. 11 limits its operation to the post-information period.

Prior to the charge, the rights of the accused areprotected by general law and guaranteed by ss. 7, 8, 9 and 10 of the Charter. [32] The Applicant argues that there has been a dilatory and neglectful investigation conducted by the police in what was astraight-forward matter. As stated by Detective Stotschek, once he received the file, together with the videotaped interview of theComplainant, the file was essentially complete. That videotaping occurred on September 5, 2006. Apparently nothing happened with thefile between September 2006 and the assignment of Detective Stotschek on June 26, 2007.

It is safe to say the file was neglected duringthat period. [33] During the period of Detective Stotschek’s involvement, I find that very little, if anything, was done by him to further theinvestigation or to move the matter forward.

He maintains that he had difficulty locating the Accused; however, the evidence establishedthat a cell phone number (which the Accused still uses) was contained in Constable Leong’s notes; that the Accused’s whereabouts wereknown within the police system; and that the Accused was subject to a peace bond with respect to the other open file regarding himrelating to alleged assault and uttering of threats. [34] The Court understands that police investigators have many cases to deal with.

It is also understandable that a case such as thiswould get lower priority than one where a sexual offence recently occurred and might re-occur if steps were not taken to prevent that.However, and notwithstanding the need to prioritize files, I must come to the conclusion that the police investigation was indeed dilatory

and neglectful. [35] The Applicant cites as authority the decision of R. v. Young, (ON CA), [1984] OJ No 3229, and R. v.Dosten, [2008] NSJ No 635, as incidences where the court concluded that the pre-charge delay in the investigation (in each case, somefive years), amounted to an abuse of process under

section 7 of the Charter. [36] However the Crown points to the decision of the Supreme Court of Canada in R. v. Rourke, at para 35, where Laskin, CJCstated: The appellant in effect is asking the courts to undertake the supervision, through their power to control prosecutions before them, of theoperation and efficiency of police departments, departments which vary in organization and in size and in the demands that are madeupon them.

Absent any contention that the delay in apprehending the accused had some ulterior purpose, courts are in no position to tellthe police that they did not proceed expeditiously enough with their investigation, and then impose a sanction of a stay when prosecutionis initiated. [37] Both Dosten and Young were decided after Rourke, and that jurisprudence was considered by them. [38] Some light is shed on this issue by Madam Justice L'Heureux-Dubé in R. v. O’Connor, (SCC), [1995] 4SCR 411 at paras 73, where she states: In addition, there is a residual category of conduct caught by s. 7 of the Charter.

This residual category does not relate to conductaffecting the fairness of the trial or impairing other procedural rights enumerated in the Charter, but instead addresses the panoply ofdiverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness orvexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicialprocess. [39] If the Court finds that there has been such “unfairness or vexatiousness” as to amount to a contravention of fundamentalnotions of justice, the Court will grant a stay of proceedings, but only in “the clearest of cases”. [40] Here, there is no evidence of prejudice occurring in the time between the complaint being made and the warrant being issued.Here there is no indication of any ulterior motive for delay.

Here the charges are serious charges. It is not a case of vexatiousness. Thereis no inherent “unfairness” to the Applicant. The investigation, while dilatory and negligent, did not undermine the integrity of thejudicial process. [41] Accordingly, I find that there has been no breach of the Accused’s

section 7 and

section 11(

d) Charter rights during theperiod between the complaint being made and the Accused being arrested. Post-Charge Delay [42] That then takes me to the third period of alleged delay, being the period post-charge, and leading to the date set for trial ofApril 13, 2011 (that date being abrogated by this application). The Applicant points out that that is a total period of some 32.5 months.Indeed, the Applicant points out that should his application be unsuccessful, this matter will likely not be concluded until sometime in2012. However, the trial in this matter has been delayed so that this application could proceed.

I consider the cut-off date for me toconsider delay in these matters to be April 13, 2011. Since that time, the Court had heard the voir dire evidence, has been awaitingwritten briefs from both counsel, and has re-convened as reasonably soon as possible after the summer recess. [43] With respect to the post-charge delay, the Crown concedes delay in serving the warrant upon the Applicant.

The Crownmaintains that the period of time from the Applicant’s first court appearance (April 17, 2009) to the first available date for preliminaryinquiry (January 2010) can properly be categorized as intake and ordinary institutional delay which the Crown submits should not be

counted against either the Applicant or the Crown. From the first available preliminary inquiry date of January 2010, the Crown wasunavailable and the Crown concedes that that delay can be attributed to the Crown. From March 8, 2010, when the preliminary inquirywas adjourned at the request of the Crown due to disclosure issues, until October 4, 2010 when it was rescheduled, the Crown furtherconcedes that the delay can be attributed to it.

The Crown notes that by the second date of the preliminary inquiry (October 4, 2010), thematter had been in Alberta Provincial Court for over 18 months, a significant period of time, yet the Applicant did not raise the issue ofdelay. Arraignment took place on December 3, 2010 with the trial set for April 11 - 15, 2011 and a pre-trial conference scheduled forFebruary 4, 2010.

It was not until March 9, 2011 that Defence counsel advised the Crown that an application would be made undersection 7 and 11 of the Charter Rights & Freedom, which was made official by a Charter Notice filed with the Court on March 24, 2011.The Crown maintains it was incumbent upon the Applicant to raise the issue of delay much earlier, relying on the decision of the Courtof Appeal in R. v. Heikel, 1992 ABCA 142 , 72 CCC (3d) 481, at para 28, where the court stated: ...

After having agreed to a March trial date at arraignment, the defence sat back, said nothing and waited a period of almost four monthsto bring a stay application. And by doing nothing, the prejudice to the Crown’s position became irreversible. Had a stay application beeninitiated within a reasonable time following arraignment, the Crown would then have had an opportunity to eliminate or minimize thedefence's concerns. The obvious, and best, solution would have been to arrange a trial date earlier than that agreed to by defence counsel.By doing nothing, the defence effectively foreclosed these options.

When the defence elects to remain silent after agreeing to a trial datein circumstances such as these, the defence runs the risk, a very real one, that the court will treat its continued silence, when viewed incombination with its earlier agreement, as continued waiver. [44] Consideration must also be given to the comments of Sopinka, J in R. v.

Morin, [1992] 1 SCR 1771, at para 74: It may be unrealistic to suggest that a trial set for approximately two months from the date of this letter could have been significantlymoved up but we will never know what would have happened as the accused did not request any action. While the accused was notrequired to do anything to expedite her trial, her inaction can be taken into account in assessing prejudice.

I conclude for this reason thatthe accused was content with the pace with which things were proceeding and that therefore there was little or no prejudice occasionedby the delay. [45] It is clear that, from the time the arrest warrant was obtained to the time of this application, an inordinate amount of time haspassed. The police delayed in carrying out the warrant for some nine months. The Crown admits responsibility for delay from January2010 until October 2010, a period of ten months.

Added to that delay is the intake and institutional delay of eight and a half months fromthe first court appearance to the first date set for preliminary inquiry which, although not caused by the Crown, is nevertheless to beconsidered by the Court in assessing the reasonableness of the overall delay. [46] R. v. Morin, supra, at para 35, is also instructive. The Supreme Court of Canada stated that “pre-charge delay may in certaincircumstances have an influence on the overall determination as to whether post-charge delay is unreasonable”. [47] R. v.

Morin sets out the factors to be considered in determining whether or not the right of an accused to be tried within areasonable time has been violated: (

a) the length of the delay (

b) waiver of time periods; (

c) the reasons for the delay, including (

i) inherent time requirements of the case, (ii) actions of the accused, (iii) actions of the Crown, (iv) limits on institutional resources, and (

v) other reasons for delay; and (

d) prejudice to the accused.

[48] As pointed out in R. v. Grant, [2001] BCSC 639, at para 27: “The ultimate question remains the reasonableness of theoverall delay.” [49]

Section 511 of the Criminal Code states:

(1) A warrant issued under this Part shall (

a) name or describe the accused; (

b) set out briefly the offence in respect of which the accused is charged; and (

c) order that the accused be forthwith arrested and brought before the judge or justice who issued the warrant or before some otherjudge or justice having jurisdiction in the same territorial division, to be dealt with according to law. [50] Where an accused is oblivious that a warrant has been issued for his arrest, where the accused has done nothing to evadeauthorities, the time-frame between the issuance of the warrant and its execution may be properly considered by the Court in assessingunreasonable delay. R. v. Alhakim, [1999] BCJ No 1135; R. v. Ogilvie, [2006] BCJ No 1339; R. v.

Duncan, 2007 BCPC 126 ,[2007] BCJ No 971; R. v. Ram, [1993] BCJ No 1492; R. v. Battilana, [1986] BCJ No 1025. [51] Accordingly, in considering the reasonableness of the post-charge delay, I also consider the lack of effort made by the policeto serve the warrant upon the Applicant for a period of almost nine months. [52] I am driven to the conclusion that the amount of post-charge delay time in this case has been excessive. The Applicant has notcaused that delay; most of it was occasioned by the delay in serving the warrant or by the Crown or was institutional. [53] However, that does not conclude the analysis.

In assessing the reasonableness of the delay, I must consider what prejudicehas occurred during the period of delay, and also the failure of the Defence to complain or seek to expedite the process. [54] During the delay of some nine months from the time the Information was sworn until the Applicant’s arrest, the Applicantlived in British Columbia and was unaware of the charges having been laid. Accordingly, the Applicant suffered no concern or anxietyabout it, was not in custody or subject to any bail conditions.

Given the nature of the allegations, there was very little risk that his right toa fair trial would be affected by this nine-month delay. The case differs from R. v. Alhakim, supra, in that regard. In that case, there wasa delay of over four years between the swearing of the Information to the arrest, and the accused was able to establish through medicalevidence that his ability to remember the events was affected by memory problems in the interim.

No such evidence occurs herein. [55] After the arrest, however, the Applicant maintains he did suffer prejudice in the sense of suffering stress and being under thecloud of suspicion that accompanies a criminal charge. He also alleges that he has suffered prejudice in the form of expenses incurred asa result of these proceedings, given that he resides in [...], British Columbia and has had to attend in Alberta on three occasions now forcourt appearances.

The Applicant maintains that the delay has prejudiced his ability to receive a fair trial. [56] The financial cost of the delay, of attending in Calgary three times before the trial instead of only once (for the PreliminaryInquiry) is not a persuasive argument amounting to prejudice. It does not amount to prejudice to the right to a fair trial. Stress and thecloud of suspicion surrounding outstanding charges are recognized types of prejudice.

However, there is nothing here to suggest thatprejudice, in terms of loss of evidence or an impact on making a full defence during this delay, has occurred. [57] Should I presume prejudice? The reasoning of Lamer, J in dissent in R. v. Morin would lead me to the conclusion that Ishould. However, neither the majority as expressed by Sopinka, J, nor the concurring reasons of McLachlin, J lead to such a conclusion.Sopinka, J requires the Accused to take positive steps towards ending the delay, by insisting on earlier dates, an opportunity never seizedby the Applicant herein. McLachlin, J states (para 89):

In the case at bar, the accused was able to meet the first hurdle of establishing a prima facie case. The delay was longer than it shouldhave been, given the nature of the charge and the time reasonably required for processing it. But she failed to show that protection of herinterest in a prompt trial or the ancillary public interest in prompt justice outweighed the public interest in bringing her, a person chargedwith a criminal offence, to trial. The record permits no inference that her interests in security or the right to a fair trial were adverselyaffected.

In short, the delay appears to have been of little consequence. In the absence of other evidence to establish the need for a stay,the public interest in proceeding to trial was bound to prevail. The trial judge was right to dismiss her application for a stay ofproceedings. [58] The reasoning of each of Justices Sopinka and McLachlin, in my view, has significantly limited the presumption of prejudicein cases of post-charge delay. In the case at bar, I find no prejudice to making a full defence has been proven and I am unable to presumeprejudice from the delay.

Therefore the Application for a stay of proceedings, based upon

section 11(

b) of the Charter and post-chargedelay, fails. Cumulative Delay [59] Finally, the Applicant submits that, when the pre-charge delay, the neglectful and dilatory investigation and the post-chargedelay are looked at cumulatively, they may amount to an abuse of process under

section 7 of the Charter. The Applicant relies, in themain, on R. v. Kennedy (2004), 2004 ABQB 686 , 369 AR 273 and R. v. Joudrey [2010] NSJ No 340. [60] In R. v. Kennedy, the Court was primarily concerned with the delay by the police before laying charges; however the Courtwas also concerned with the additional time taken post-charge. The total period under consideration, from incident to application for astay, was 54 months. [61] The matter in issue was an alleged assault, to which there were many witnesses. Watson J had concerns about the reliabilityof their memories.

He found that the investigation was negligently conducted. He determined that the combined 54 months of delay andthe intervening difficulty of witnesses’ memories being affected, or witness combining their memories with those of others, made a fairtrial impossible. [62] In R. v. Joudrey, the accused was charged in 2008 for defrauding the government in 1995 by submitting a false invoice. Apolice complaint was made in 2001. The post-charge delay had been caused almost exclusively by the accused’s requests foradjournments to obtain counsel.

During the delay, an important witness had lost his memory due to infirmity, some computer evidencehad been lost and the absence of a written agreement gave “an air of reality to the claim of actual prejudice” to a fair trial. Theaccumulation of prejudices was significant and made the accused’s trial unfair. [63] Both of these cases were decided because of evidence lost or loss of the quality of the evidence in the delay period underconsideration. [64] In the case at bar, I have noted the loss of evidence from the Complainant’s mother and from Mr.

VS, during the 20 yearsbetween the alleged occurrences and the report to the police. I have noted, however, that in cases of historical sexual abuse the Courts areloathe to stay proceedings on the basis of such pre-charge delay. The Court must be persuaded that the lost evidence was likely to be ofassistance to the Defence. I have already indicated that I am not so persuaded. [65] The remaining delay has been occasioned by the dilatory and neglectful police investigation and by the post-charge delaysdiscussed above.

However, I have been unable to find evidence of any prejudice arising to the Accused during those delays, other thanthe stress and stigma associated with the outstanding charges. That, I have found, does not meet the requirements of the test in R. v.Morin. [66] I am not persuaded that the Accused will be denied a fair trial. Any prejudice inferrable solely from the length of the delay isoutweighed by the public interest in proceeding to trial. Accordingly, I find that the Accused’s

section 7 and

section 11 Charter rightshave not been violated and I dismiss the application of the Accused for a judicial stay of proceedings.

Heard on the 13 th to 15 th day of April, 2011. Dated at the City of Calgary, Alberta this 16 th day of September, 2011. R.J. Hall J.C.Q.B.A. Appearances: Robert J. Batting Batting, Der for the Applicant Joe Mercier Crown Prosecutor’s Office for the Crown