R v MRA, 2014 ABQB 663

Court of Queen ’ s Bench of Alberta Citation: R v MRA, 2014 ABQB 663 Date: 20141029 Docket: 130713951Q1 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - MRA Applicant/Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4. By Court Order, information that may identify the complainant must not be published, broadcast, or transmitted in any manner. NOTE: This judgment is intended to comply with the restriction so that it may be published. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice M. T. Moreau _______________________________________________________

I. Introduction [ 1 ] The Applicant, MRA, has applied for a stay of proceedings pursuant to s. 24(1) of the Charter on the basis of delay. MRA was charged on October 28, 2011 with sexual assault, sexual touching, and invitation to sexual touching, all charges involving the same complainant. The judge and jury trial is scheduled to proceed on January 12, 2015 for five days, approximately 38 ½ months after criminal proceedings were commenced. II.

History of these Proceedings [ 2 ] The Applicant first appeared before a Justice of the Peace on October 28, 2011 without counsel and adjourned the matter of his judicial interim release to October 31, 2011. He appeared with his present counsel in Provincial Court on October 31, 2011, requesting an adjournment to November 1, 2011 to speak to judicial interim release. [ 3 ] A Provincial Court judge granted interim release to the Applicant on November 1, 2011, on the basis of his own recognizance in the amount of $2,500.00, without cash deposit.

Included in his terms of release were conditions prohibiting him from: - having any contact with the complainant or other Crown witnesses, including his daughter, along with a radius restriction; - being present or within 100 meters of any public park, public swimming area, daycare centre, school ground, playground or community centre where one might reasonably expect children under the age of 16 years to be present, except to play adult indoor soccer once per week; - entering any place which is the residence of any child under the age of 16 unless in the immediate presence of an adult, guardian or parent of the child; - entering into any relationship with a woman who is a mother of children under the age of 16 years; - seeking, obtaining or continuing any employment, whether or not remunerated, or volunteer work that involves being in a position of trust or authority toward any person under the age of 16 years; and - engaging in or attempting to engage in any activity with any person under the age of 16 years. [ 4 ] The Applicant was also required to provide reasonable access to his residence during daylight hours to his bail supervisor or any other peace officer who sought entry to determine the presence of any child under the age of 16 years. [ 5 ] The terms of the Applicant’s release were amended on November 18, 2011 to permit him to have contact with his daughter, but only when in the immediate presence of his spouse or her adult designate. [ 6 ] At the next scheduled court appearance on December 16, 2011, the matter was adjourned to January 6, 2012 at the request of Defence counsel to set a trial date. [ 7 ] On January 6, 2012, an agent for Defence counsel entered an election of trial by judge and jury and set a preliminary inquiry date of October 2 – 3, 2012. [ 8 ] In a letter dated September 14, 2012, Crown counsel advised the Defence (and defence counsel in a second proceeding involving another complainant and accused) that the complainant in the second criminal proceeding was friends with the complainant in the Applicant’s proceeding and that each defence counsel would be receiving summaries of the two files. [ 9 ] In a letter dated September 25, 2012, Crown counsel advised the Defence that he had met the day before with the complainant, along with her mother and grandmother.

The complainant told him she had made disclosures to her sister, her maternal uncle, her teacher, and her social worker. [ 10 ] In a letter dated September 27, 2012, Defence counsel alerted the Crown to a potential request for an adjournment of the preliminary inquiry. He queried the relevance of the second proceeding involving the other complainant. A series of written exchanges ensued between Defence and Crown counsel from September 27 to October 2, 2012, in which Defence counsel continued to query the connection between the two proceedings.

He also requested any contact notes relating to the disclosures that the complainant made to her sister, uncle, teacher and social worker. Crown counsel confirmed he had no contact notes but would request them. He also stated that the disclosure to the social worker would require an O’Connor application. [ 11 ] On October 1, 2012, one day before the preliminary inquiry was scheduled to proceed, Defence counsel appeared by agent in Provincial Court.

Crown counsel advised the Court that he had alerted the Defence of the second prosecution involving the complainant’s friend and of his meeting with the complainant and her reported disclosures.

He requested that the preliminary inquiry nonetheless proceed, noting that Defence counsel could ask the complainant about the details of her disclosures to others. [ 12 ] Defence counsel expressed concern to the Court about the possibility of collusion in relation to the friendship between the complainant and her friend involved in the other prosecution. [ 13 ] Crown counsel indicated his willingness to release a video statement to the Defence of the complainant’s interview in the other proceeding. Defence counsel then agreed to use the first day of the preliminary inquiry, October 2, 2012, to review the video

statement and proceed with the preliminary inquiry on the second day, October 3, 2012. [ 14 ] However, the preliminary inquiry did not proceed as agreed on October 3, 2012. Crown counsel advised the Court that the complainant’s mother revealed the existence of disclosure neither he nor Defence counsel had. The matter was then set over to October 10, 2012. [ 15 ] In a letter dated October 9, 2012, Crown counsel confirmed to the Defence that he would obtain the requested details of the disclosures by the complainant to her sister, uncle and teacher and provided the contact coordinates of the social worker.

He also confirmed that he would request the police to obtain Facebook messages by the complainant that had come to light just prior to the scheduled preliminary inquiry. [ 16 ] On October 10, 2012, a student-at-law appeared in Court for Defence counsel and advised that the preliminary inquiry was originally intended to be booked for June 2013, he had been advised that the complainant would be out of the country until September 13, 2012.

The student-at-law proposed a date for preliminary inquiry after September 16, 2013 and requested an adjournment to October 19, 2012 to obtain the scheduling judge’s approval of a new date. [ 17 ] On October 19, 2012, the student-at-law again appeared for Defence counsel and confirmed September 19 – 20, 2013 for the preliminary inquiry. [ 18 ] Crown counsel caused a Direct Indictment to be filed on June 7, 2013, pre-empting the scheduled preliminary inquiry.

The matter first came before the Court of Queen’s Bench on June 28, 2013 and was adjourned to August 2, 2013 as Defence counsel was out of the country. [ 19 ] On August 2, 2013, the trial date was set for April 7 – 11, 2014, with Crown counsel advising the Court that these were the first available dates for both Crown and Defence counsel. On or about March 26, 2014, Crown counsel discovered that his office had not forwarded a supplementary disclosure package that was available in April 2013, relating to the complainant’s disclosures to others.

Defence counsel received the disclosure package on March 27, 2014. [ 20 ] In an email dated March 8, 2014, Defence counsel requested that the Crown obtain a Facebook message authored by the complainant that had just come to light. In the interim however, Defence counsel was able to obtain copies of this Facebook message and sent it by email to Crown counsel on March 27, 2014. In an email dated March 27, 2014, Crown counsel advised the Defence that he had asked a police officer to confirm with the complainant that she wrote the Facebook message.

He advised that the officer had videotaped his interview with the complainant, which contained additional details about the alleged offences. In reply, Defence counsel expressed concerns about the police interview generating further disclosure.

In response, Crown counsel explained, and I accept, that he instructed the officer to confirm the authenticity of the Facebook message, but had not directed the officer to proceed with a “more robust” videotaped conversation with the complainant. [ 21 ] Defence counsel asked for the Crown’s position on a defence adjournment request arising from the delayed receipt of the supplementary disclosure package, as well as to facilitate Defence counsel making an O’Connor application triggered by the contents of the most recent Facebook message.

Crown counsel confirmed he would consent to this request. [ 22 ] In an email dated March 28, 2014 to the Court of Queen’s Bench Trial Coordinator, Crown counsel requested the first available dates for a five day jury trial. The Trial Coordinator provided two possible dates in November 2014, one date in December 2014, two possible dates in January 2015 and further dates in February 2015. [ 23 ] On March 28, 2014, Defence counsel appeared in Court of Queen’s Bench and requested an adjournment of the trial.

Crown counsel stated: Two reasons: one of which lay at the feet of the Crown, one of which lay at the feet at (sic) the accused. We discovered in a phone conversation yesterday that there was a Supplementary Disclosure package that the Crown received in April 2013, which for an unknown reason - - I tried to investigate it with our disclosure unit, it was not made available to Mr. Ziv to pick up. Although, I will say that I had advised him in October of 2012 that I was seeking these items through my detective, but that’s still - - he’s entitled to that disclosure. He didn’t get it.

The second reason arose because of a request by Defence for the Crown to seek the Facebook message by the complainant that she had made to her Auntie. We made steps to - - we thought that was a reasonable request. It was made this month of the Crown. We sought it. Mr. Ziv got his hands on it before the Crown did and he only got it Wednesday. He gave it to us yesterday morning. In it - - and by the way the complainant confirmed that she did author the Facebook message. In it she reveals she has been seeing a therapist, taking medications, sometimes not taking the medications, etc.

So, my friend wants to bring an O’Connor application in respect of the - - this sex assault complainant.

[24] Defence counsel stated in response: I would agree with my friend that the non-disclosure is something that lies at the feet of the Crown. I indicated to my friend, regardlessof that issue of items that were not disclosed to me, I would be seeking an O’Connor application asking the court to - - for an O’Connorapplication. I don’t think that lies at the feet of the Defence. I don’t think it lies at the feet of the Crown either, though. That was - - something happened with the complainant a month ago.

An allegation happened with the complainant a month ago, I askedthe Crown to investigate this allegation, they did. The family of the complainant were not cooperating with the police. I made steps toobtain this information. I obtained this information, as my friend said, on Wednesday. It clearly revealed that I needed to ask for anO’Connor application now, so the Crown would not have had that information. So, it does not lie at the feet of the Crown, me bringing the O’Connor application, but it also does not lie at the feet of the Defence.

It’sreally, I would describe it as mutual delay if one was to describe it that way. [emphasis added] [25] The Court did not attribute responsibility for the delay to either the Crown or Defence counsel. The Crown requested that theApril 7 – 11 trial dates be vacated, and the matter was adjourned one week to select new trial dates. [26] In an email dated March 31, 2014, Crown counsel confirmed to the Trial Coordinator that the January 12 – 16, 2015 trialdates were satisfactory.

Defence counsel confirmed in an email dated April 1, 2014 to the Trial Coordinator that the January dates wereavailable and added “please note he [Defence counsel] is also available December 8 – 12, 2014. [27] The matter was back in court on April 4, 2014 and the Court confirmed new trial dates of January 12 – 16, 2015. Defencecounsel appeared by agent. The Crown alerted the Court to Defence counsel’s upcoming Askov and O’Connor applications and advisedthat the appointment of a Case Management Judge would be sought. [28] On October 23, 2014, the Applicant’s Askov application came before me. III. The Law [29]

Section 11(

b) of the Charter states: 11. Any person charged with an offence has the right ... (

b) to be tried within a reasonable time; ... [30]

Section 11(

b) protects three individual rights of an accused person: the right to security of the person by minimizing theanxiety and stigma a criminal proceedings; the right to liberty by minimizing the effect of pre-trial custody or restrictive bail conditions;and the right to a fair trial by ensuring that the proceedings occur while evidence is fresh and available: R v Qureshi (2004), (ON CA), 190 CCC (3d) 453 (Ont CA), 192 OAC 50 at para 8, citing R v Morin, (SCC), [1992] 1 SCR771 at 786, 71 CCC (3d) 1. [31]

Section 11(

b) also protects two societal rights: the public’s interest in having our laws enforced by having those who breakthe law tried quickly; and the public’s interest in having those accused of crime dealt with fairly: Qureshi at para 9, citing R vMacDougall (1998), (SCC), [1998] 3 SCR 45 at para 30, 128 CCC (3d) 483.

The comments in Qureshi were adoptedby the Saskatchewan Court of Appeal in R v Walker, 2013 SKCA 95 at para 25, 423 Sask R 125. [32] Morin set out the factors to be considered when assessing whether a delay is unreasonable at 787-788: The general approach to a determination as to whether the right has been denied is not by the application of a mathematical oradministrative formula but rather by a judicial determination balancing the interests which the

section is designed to protect againstfactors which either inevitably lead to delay or are otherwise the cause of delay. As I noted in Smith, supra, "[i]t is axiomatic that somedelay is inevitable. The question is, at what point does the delay become unreasonable?" (p. 1131). While the Court has at timesindicated otherwise, it is now accepted that the factors to be considered in analyzing how long is too long may be listed as follows: 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 delay; and 4. prejudice to the accused. These factors are substantially the same as those discussed by this Court in Smith, supra, at p. 1131, and in Askov, supra, at pp. 1231-32. The judicial process referred to as "balancing" requires an examination of the length of the delay and its evaluation in light of the otherfactors. A judicial determination is then made as to whether the period of delay is unreasonable. In coming to this conclusion, accountmust be taken of the interests which s. 11(

b) is designed to protect. Leaving aside the question of delay on appeal, the period to bescrutinized is the time elapsed from the date of the charge to the end of the trial. See R. v. Kalanj, (SCC), [1989] 1S.C.R. 1594. The length of this period may be shortened by subtracting periods of delay that have been waived. It must then bedetermined whether this period is unreasonable having regard to the interests s. 11(

b) seeks to protect, the explanation for the delay andthe prejudice to the accused. [33] The Court outlined the correct approach to a s. 11(

b) application in R v Conway, (SCC), [1989] 1 SCR 1659at 1674: In deciding a claim made under s. 11(

b) of the Charter, the correct approach is in my view to evaluate the reasonableness of the overalllapse of time. A piecemeal analysis is generally not appropriate. In a case where each individual period, taken in isolation from theothers, may constitute a reasonable delay, the total period may nevertheless be unreasonable for the purpose of s. 11(b)...

However,nothing prevents a court from focussing on specific time periods which may be significant in the overall assessment, as going to theweight to give to specific delays, as opposed to their reasonableness. [34] Fraser J.A. (as she then was) commented as follows on the reasonableness of the delay in R v Koruz, 1992 ABCA 144, 125AR 161 at paras 37-38: The reasonableness standard is not an absolute one. And it cannot be measured against a framework which demands military precision inthe taking of each step in the trial process. We do not live in a perfect world.

And while one can strive for perfection, the simpleexigencies of life militate against that ever occurring. People die, they get sick, they take holidays, they are sometimes absent withoutexplanation, they forget, they marry, they make mistakes and their families, for whom they may be responsible, do likewise. For these reasons, a court should exercise its power to find an infringement of s. 11(

b) with restraint and with due regard to objectiveevidence, not merely subjective intuition. [35] With these principles in mind, I turn to the factors in Morin. IV. Analysis

i) Length of delay [36] The length of the delay between the laying of information on October 28, 2011 and the trial scheduled to end on January 16,2015 is approximately 38 ½ months. Morin set out, at 798-799, a guideline with respect to institutional delay in Provincial Court of eightto ten months. It also set out a guideline range of six to eight months after committal for trial.

The Court noted that the greater theprejudice, the shorter the acceptable period of institutional delay: Morin at 798. [37] The overall length of delay in this case is sufficient to warrant an inquiry into the reasons for the delay. ii) Waiver of time periods [38] It was noted in Morin at 790 that in order for an accused to waive his or her rights under s. 11(b), the waiver must be clearand unequivocal, with full knowledge of the rights the procedure was enacted to protect and the effect that waiver will have on thoserights. Waiver can be explicit or implicit.

If the waiver is implicit, the conduct of the accused must comply with the stringent test forwaiver set out in Morin. [39] In this case, the record does not disclose an express waiver by the Applicant of his s. 11(

b) rights in relation to the preliminaryinquiry and trial adjournments. Nor did Crown counsel suggest there was an implied waiver, given that the main reason for the twoadjournments was the disclosure of Facebook messages written by the complainant. I find that the Applicant did not waive any period ofdelay, either expressly or implicitly. iii) Reasons for the delay [40] Time for intake procedures such as retaining counsel, preparing disclosure and proceeding through the preliminary inquiryprocess are a part of inherent time requirements.

The more complicated a case, the longer it will take for counsel to prepare for trial andfor the trial to be conducted: Morin at 791-793. The actions of the accused and the Crown should also be considered when looking at

reasons for the delay, not in order to place blame on either for certain portions of the delay, but rather, to determine what length of delayis reasonable.

Morin also recognized, at 795-798, that although limits on institutional resources is another factor to be considered inassessing delay, there is no inflexible limitation period beyond which delay on account of finite court resources will not be tolerated.Finally, there may be reasons for delay which do not fall within the categories of inherent time requirements, actions of the accused,actions of the Crown, or limits on institutional resources: Morin at 800. [41] Defense counsel does not dispute that the period from October 28, 2011, when the charges were laid, and January 6, 2012,when the first preliminary inquiry date was set, was “neutral” intake delay that can be characterized as inherent delay.

It is also notdisputed that the period from January 6, 2012 to October 1, 2012, when Defence counsel applied for the preliminary inquiryadjournment, was institutional delay within the Morin guidelines for Provincial Court. [42] Defence counsel notes that the first adjournment of the preliminary inquiry arose from the necessity of obtaining disclosure ofFacebook messages revealed by the complainant’s mother to Crown counsel on October 1, 2012.

Defence counsel argues that thisadjournment should not be characterized as an “action of the accused” or an “action of the Crown”, as the last-minute disclosure couldnot be laid at either of their feet. Crown counsel describes this period as “neutral” delay. [43] However, with respect to the delay between the preliminary inquiry adjournment on October 3, 2012, and the filing of theDirect Indictment on June 7, 2013, the Defence notes that Crown counsel gave no reason for pre-empting the preliminary inquiryprocess.

He questions why the Crown waited until June 7, 2013 to file the Direct Indictment and argues that the entire delay fromJanuary 6, 2012 to June 7, 2013 is attributable to the actions of the Crown. [44] In response, Crown counsel notes that the Crown is not obliged to disclose its reasons for proceeding by way of DirectIndictment.

Further, he points out that the Direct Indictment would advance the proceedings to trial without the delays inherent inproceeding with an already-delayed preliminary inquiry. [45] I am unable to attribute to the Crown the entire delay between January 6, 2012 and the filing of the Direct Indictment in June2013. The Crown was clearly intent on proceeding with the preliminary inquiry when arguing against its adjournment on October 1,2012. That adjournment was, as the Defence acknowledges, beyond the Crown’s control.

If the period between October 1, 2012 and theadjourned date of September 12 – 13, 2013 for the preliminary inquiry were completely attributable to institutional delay, it would havebeen slightly outside the Morin guidelines. While the Direct Indictment foreclosed an opportunity for pre-trial cross-examination of thecomplainant, the period of October 1, 2012 to June 7, 2013 would also have been part of that institutional delay.

However, I do acceptthe Defence’s submission that some portion of the period after the adjournment of the preliminary inquiry can be attributed to theCrown’s actions in delaying the filing of its Direct Indictment, particularly as no reason was proffered for this delay.

Accordingly, Iattribute 50% of the delay in this period to the Crown and 50% to institutional delay. [46] Both counsel agree that the time between the filing of the Direct Indictment on June 7, 2014, to the first appearance date inQueen’s Bench on June 28, 2014 and the fixation of a trial date on August 2, 2014, was neutral inherent delay that would have beenoccasioned in any event. [47] The Crown argues that the period from August 2, 2013 to March 28, 2014 should be characterized as neutral institutionaldelay, falling within the Morin guidelines of eight to 10 months.

Defence counsel does not strongly dispute this characterization. [48] Regarding the final period of delay, from the adjournment of the trial on March 28, 2014 to the new trial date set for January12, 2015, the reason for the adjournment was again not within the control of either the Crown or the Defence. Rather, it principally arosefrom another eleventh-hour disclosure of a Facebook exchange.

I agree with Crown counsel that this was the principal driver of theadjournment, as opposed to the delayed Crown disclosure of the supplementary disclosure package approximately 11 days prior to trial.It was the complainant’s latest Facebook message that prompted the Defence to indicate that an O’Connor application would need to beheld prior to trial. [49] At this point, Defence counsel faced a difficult choice: proceed with the trial as scheduled or proceed with an O’Connorapplication, inevitably delaying the trial.

In choosing the latter course, the Defence cannot be criticized for exercising its right to makefull answer and defence, particularly where the complainant’s credibility is a key issue. However, the Crown cannot be faulted forfollowing up with the complainant to ascertain that, indeed, it was her Facebook message. [50] As for the Crown error in delaying disclosure of the supplementary disclosure package for almost a year, despite it beingrequested by the Defence in the Fall of 2012, I find that Defence counsel has some share of responsibility for that error.

Crown counsel’sletter of October 9, 2012 clearly advised of anticipated further disclosure specifically requested by the Defence. I am of the view thatDefence counsel is obliged to exercise some diligence in pursuing previously-requested disclosure, as noted in R v Dixon, (SCC), [1998] 1 SCR 244 at 247, 122 CCC (3d) 1 (sub nom R v McQuaid): When counsel becomes or ought to become aware, from other relevant material produced by the Crown, of a failure to disclose furthermaterial, counsel must not remain passive.

Rather, they must diligently pursue disclosure. [51] The Defence argues that the Dixon principle is inapplicable here because unlike Dixon, the relevancy of this disclosure hadnot been established when requested and was not in the possession of the Crown when requested. I do not accept this argument. I am ofthe view that these distinguishing features do not outweigh the obligation of Defence counsel in this case to do his

part in diligentlypursuing the disclosure he had previously requested, so as to avoid these materials falling through the cracks. Having said this, Iconclude that the last period of delay was essentially prompted by another eleventh-hour disclosure and Defence counsel’s assessment ofthe need for an O’Connor application, both of which I find to be neutral. [52] A

summary of the periods of delay in this proceeding and my findings as to their characterization are set out in the chartbelow:

From To No. of Days Reason for Delay October 28/11 (charges laid) January 6/12 (setting prel. inquiry date) 70 Inherent time requirements: neutral January 6/12 October 1/12 (speaking to adj. of prel. inquiry) 268 Institutional delay within Morin guidelines: neutral October 1/12 (speaking to adj. of prel. inquiry) October 3/12 (adj. of prel. inquiry 2 Inherent time requirements: neutral October 3/12 (adj. of prel. inquiry) June 7/13 (Direct Indictment filed) 247 Actions of the Crown – 50%; institutional delay – 50% June 7/13 (Direct Indictment filed) August 2/13 (setting of trial date) 56 Inherent time requirements: neutral August 2/13 (setting of trial date) March 28/14 (adj. of trial date) 238 Institutional delay within Morin guidelines: neutral March 28/14 (adj.of trial date) January 12/15 (trial date) 290 Not actions of Crown or defence: neutral iv) Prejudice to the accused [ 53 ] Prejudice to the accused may be inferred from prolonged delay; the longer the delay, the more likely that such an inference will be drawn: Morin at 801. [ 54 ] As noted by Cromwell J. for the Court in R v Godin , 2009 SCC 26 at para 30 , [2009] 2 SCR 3: 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. [ 55 ] The Applicant testified that he is 42 years of age, resides in a long-term common-law relationship and has a daughter aged 11 years. He has no criminal record, nor has he previously been charged with a criminal offence.

He testified that the strict release conditions in force for close to three years have prevented him from accompanying his daughter, a Crown witness, to family celebrations in case other children are present. He is unable to watch her play soccer despite being a soccer coach, and he has to leave his residence should his daughter wish to have other children over. As he is unable to attend public parks and swimming areas, he cannot attend a playground to watch his daughter play or go swimming with her.

As he cannot have contact with his daughter outside the presence of his wife or her designate, his wife has been bearing most parenting responsibilities, placing a strain on their relationship. He has been unable to travel on family holidays outside of Alberta. [ 56 ] Crown counsel argues that the prejudice alluded to by the Applicant arises from the charges having been laid. This would be the case if the trial had proceeded within the Morin guidelines.

I find, however, that the continuation of the very strict conditions which seriously constrain the Applicant’s relationship with his daughter have been caused by the delay, which in this case, is almost double the Morin guidelines. [ 57 ] I am satisfied that the Applicant has proven actual prejudice attributable to the delays in this proceeding. His release conditions significantly restrict his liberty and security, more so as he has never previously faced criminal prosecution. [ 58 ] However, there is no evidence before me as to the impact of the delay on memory.

In R v CD , 2014 ABCA 333 , a stay of proceedings appeal based on unreasonable delay, our Court of Appeal noted at para 62 that to draw an inference of fading memory from the passage of time in that case was “speculation”. In the case before me, the complainant provided a videotaped statement which, at minimum, might be used to refresh her memory even if not admitted into evidence under s. 715.1 of the Criminal Code . [ 59 ] Defence counsel urges the Court to consider the prejudice caused to the Applicant by the delay period irrespective of whether it is inherent, institutional or attributable to the Crown.

Simply put, given the actual prejudice suffered by the Applicant as a result of the lengthy delay to trial, “this long is too long”. Defence counsel refers to the decision of Allen P.C.J. in R v Nethery, 2005 ABPC 343 at para 50 , 395 AR 155: The accused's right to a trial within a reasonable time must be balanced against the rights of society in having a matter determined at trial. The Morin factors are a framework which assist in a determination of whether the delay is unreasonable.

Only one question need be resolved: how long is too long? [ 60 ] However, Fraser J.A. noted at para 35 in Koruz that the critical question in each case involving an alleged s. 11(

b) breach is whether the delay has become unreasonable. She added: In determining whether the delay falls within this category, the court must avoid relying unduly on time and time alone as the determinative factor. If the right to be tried within a reasonable time were nothing more than a function of length of time, one could devise a sliding scale of time periods within which criminal prosecutions were to be completed. Nothing more need enter the analysis. But Parliament has rejected this approach, inviting instead a much more responsive, functional and flexible approach to this issue... [citations omitted]

[61] In order to deal with the alleged delay, it is necessary to understand the allegations the Applicant faces and the expectedcourse of the trial. According to a Narrative Report tendered in this application without objection, the complainant alleged in a ZebraCentre interview that in March 2011, while at the residence of her uncle, the Applicant, she fell asleep on the couch with her cousins, oneof whom is the Applicant’s daughter.

She reported waking up to the Applicant touching her on her vagina and anus and attempting to lickher vagina. [62] The complainant also described the Applicant watching pornography on a TV/Computer and inviting her to scratch around hispenis while he was wearing underwear. She stated that he told her not to tell anyone. [63] The complainant also alleged that while taking a shower with the Applicant’s daughter at the Applicant’s home, the Applicantslid his hand/fingers over her bare vagina once. [64] The complainant’s grandmother stated that the complainant made disclosures to her and to the complainant’s sister.

Thecomplainant’s mother told police that the Applicant denied the allegations when she confronted him with them. [65] The complainant appears to have expanded on the timeframe of the alleged sexual activity in the most recent Facebookmessages, which have also spawned an O’Connor application. [66] The trial is currently set for five days before judge and jury.

While the Defence describes the trial as basically involving twopersons, Crown counsel states that he intends to call the complainant, the detective who took the proposed s. 715.1 statement from her,and the complainant’s grandmother, to whom it is alleged the complainant made a disclosure. Defence counsel previously advised thatthere may be up to four defence witnesses.

There are issues in relation to the admissibility of the s. 715.1 statement and a voir dire willbe required in relation to the Applicant’s videotaped statement to the police. [67] Based on the legal issues to be addressed in the context of three voir dires and the number of witnesses involved, the Crownsubmits that this is not a routine or straightforward oath-against-oath case. I would agree. The O’Connor application adds furthercomplexity and issues to be addressed prior to trial, necessitating the assignment of a case management judge.

The case is more complexthan that described in Walker at para 42, R v PJS, 2014 ABQB 409 at para 54, 115 WCB (2d) 122, or R v Vinagreiro (7 April 2014),Edmonton 120858261P1 (ABPC) at 4. [68] As noted in R v Rahey, (SCC), [1987] 1 SCR 588 at 614, 33 CCC (3d) 289, a stay is the minimal remedy fora s. 11(

b) breach. After the passage of an unreasonable period of time, no trial is permissible, as “…[t]o allow a trial to proceed aftersuch a finding would be to participate in a further violation of the Charter”.

A stay of proceedings is reserved for situations where thepublic, the complainant’s and the accused’s interests in a speedy resolution of the matter outweigh the public interest in having thematters dealt with at trial on their merits. [69] It was also noted in R v Côté, 2011 SCC 46 at para 48, [2011] 3 SCR 215, citing R v Harrison, 2009 SCC 34, [2009] 2 SCR494 at para 40, that the seriousness of the offence and the reliability of the evidence should not be permitted to “overwhelm” the Charteranalysis as this “would deprive those charged with serious crimes of the protection of the individual freedoms afforded to all Canadiansunder the Charter and, in effect, declare that in the administration of the criminal law ‘the ends justify the means’”. [70] In balancing the Morin factors relating to the delay and the prejudice suffered by the delay, I am not of the view that the timeperiod leading up to trial, in its totality, is unreasonable in the particular circumstances of this case.

While I have attributed some delay tothe Crown’s actions in relation to the filing of a Direct Indictment, this accounts for a small portion of the overall delay. In addition, Ihave found that while the Applicant is being prejudiced by the delay, the charges are serious, involving a child complainant, and theprosecution involves some complexity.

There are some rather unique circumstances involving two occasions of eleventh-hour disclosurebeyond the control of the Crown and sufficiently significant defence matters obliging Defence counsel to request adjournments; theprincipal basis for the trial’s adjournment is to conduct an O’Connor application in light of the most recent Facebook messagedisclosure. V. Conclusion [71] For the reasons given, the application for a stay of proceedings is dismissed.

The court appearance set for November 3, 2014to hear my decision is no longer required. [72] I wish to thank both counsel for their helpful written materials and oral submissions. Heard on the 23rd day of October, 2014 Dated at Edmonton, Alberta this 29th day of October, 2014.

M. T. Moreau J.C.Q.B.A. Appearances: Y. Rory Ziv for the Applicant Robert A. Fata for the Respondent