R v Penny, 2021 ABQB 723

Court of Queen’s Bench of Alberta Citation: R v Penny, 2021 ABQB 723 Date: 20210913 Docket: 180138828Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Eric James Penny Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the victim must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Reasons for Decision of the Honourable Justice E.J. Sidnell _______________________________________________________

[ 1 ] This decision was delivered orally on August 27, 2021. Only minor editorial edits for readability have been made, together with the inclusion of citations and quotations. There have been no changes made to the substance of my oral decision. Introduction [ 2 ] Mr. Penny was charged with alleged offences under ss 151 and 271 of the Criminal Code , RSC 1985, c C-46 , more than six years after the first police detective took a statement from the complainant, whom I will refer to as “SB”. It was only after the file was left dormant for more than six years that it was revived and Mr. Penny was charged. [ 3 ] Mr. Penny alleges that his s 7 Charter ( Canadian Charter of Rights and Freedoms ,

Part 1, The Constitution Act, 1982 ,

Schedule B to Canada Act 1982 (UK) 1982, c 11 ) rights were infringed due to the pre-charge delay. [ 4 ] As suggested in R v Sawchuk , 2019 ABQB 252 , at para 89 , and by agreement of counsel, the Charter application was heard at the close of the trial evidence. These are my reasons in relation to the s 7 Charter application.

Legal context [ 5 ] The legal context of this case is important because the age of consent for the alleged sexual activity was raised from 14 to 16 in 2008. [ 6 ] In “The Legal Age in Canada of Consent to Sexual Activity” [1] , Robin MacKay provides an overview of the history of the age of consent to sexual activity, at page 1: For more than 100 years, beginning with the 1892 consolidation of Canada's first Criminal Code , the age of consent to sexual activity was 14, with a small exception introduced in 1987 which allowed consensual sexual activity between a person aged 12 to 14 and someone who was close in age.

The age of consent was raised to 16 in 2008. [ 7 ] As of May 1, 2008, the Criminal Code was amended by the Tackling Violent Crime Act , SC 2008, c 6, which raised the age of consent under ss 151 and 271, among other sections, from 14 to 16 years old: 150.1(1) Subject to subsections (2) to (2.2), when an accused is charged with an offence under

section 151 or 152 or subsection 153(1), 160(3) or 173(2) or is charged with an offence under

section 271, 272 or 273 in respect of a complainant under the age of 16 years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge. [ 8 ] Mr. Penny did not argue that the exceptions, or the transitional provision, contained in s 150.1 of the Criminal Code applied to this case. Subsequent amendments to s 150.1 were made in 2014, 2015 and 2019 [2] , but they are not relevant to this application. [ 9 ] At the time of the alleged sexual activity, SB was 14 and, perhaps, 15 years old, and Mr. Penny was 26 and, perhaps, 27 years old.

The timing is crucial to the issue of SB’s consent, which Mr. Penny says she gave. Up to April 30, 2008, SB could consent, but as of May 1, 2008, SB was statutorily barred from consenting to the sexual activity. [ 10 ] Mr. Penny’s position is that the sexual activity took place after February 4, 2008, when SB turned 14, but before May 1, 2008 when the age of consent increased to 16 years. As a result, Mr. Penny asserts that no criminal activity took place. Timing is crucial to Mr. Penny’s defence. [ 11 ] Mr.

Penny’s testimony was that he had evidence which would have proven that the sexual activity with SB was limited to the period of late February to early March 2008, which would have exonerated him, but that such evidence is no longer available. Mr. Penny asserts that his inability to present this evidence is due to the pre-charge delay of over six years. These circumstances are the foundation of Mr. Penny’s argument that his “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” have been infringed.

Agreed facts [ 12 ] The Crown and Defence entered an Agreed Statement of Facts as an exhibit at the trial. It states, in part: 1. On March 26, 2011, [SB] (the "complainant") reported to the Calgary Police Service alleged instances of sexual assault and sexual touching that occurred between November 2008 and August 2009. 2. The investigation was assigned to Detective Stephen Johnston the same day. Detective Johnston interviewed the complainant on June 6, 2011. 3. Shortly after the date of the interview with the complainant, Detective Johnson's involvement in this investigation ended due to health reasons. 4.

The investigation lay dormant until August 16, 2017, when a Police Information Check application for the Accused was being processed. At this time an officer from the Police Information Check Unit brought the file to the attention of the Staff Sergeant. 5. On September 7, 2017, Detective Dave Palmer was assigned to the investigation. On January 18, 2018, charges were laid against

the accused. The trial evidence [ 13 ] Not all of the trial evidence is relevant to this Application and the findings of fact have not yet been made. However, some of the trial evidence is pertinent to this Application and the following is an overview of such evidence. SB’s evidence [ 14 ] Mr. Penny was a friend of SB and her family. SB’s mother, who I will refer to as “IM”, testified that she was good friends with Mr. Penny’s mother, Brenda Penny. IM and her family lived in the same neighbourhood as Brenda Penny for a number of years.

IM and Brenda Penny were both very involved in their church. [ 15 ] SB testified that she started spending time with Mr. Penny in 2008 and that the first time that she had sexual intercourse with Mr. Penny was following a rave party on the evening of November 15, 2008. At the time, SB was 14 years old and Mr. Penny was 26 or 27 years old. SB said that Mr. Penny took her to, and brought her home from, the rave party. Once back at SB’s home, SB went into the house and changed into pajamas. She then joined Mr. Penny in an old camper van that was parked in the backyard of SB’s family’s home.

The two lay spooning on the bed in the rear of the camper van. Mr. Penny pulled down the back of her pajama bottoms and rubbed against her. Mr. Penny told her she could say “no” to sexual intercourse and SB testified that she said “no”. SB said that Mr. Penny inserted his penis into her vagina even though she did not consent. [ 16 ] SB says that she remembers the date of the first instance of sexual intercourse because it was after the rave party. IM and her husband were helping at the community centre that evening with the rave party and another event taking place there.

I note that IM testified in chief that either she or her husband took SB to the rave party, but that Mr. Penny took SB home. On cross-examination, IM said she could not be sure that Mr. Penny took SB home from the rave. [ 17 ] Sometime in 2018, SB said that she found a thank you card addressed to IM from the rave party organizer, Lucie Vlach, referring to the rave party on November 15, 2008, together with Ms. Vlach’s business card. SB said that when she found these items she decided to search Facebook for the business name on Ms. Vlach’s card.

SB said that through this search she found the advertisement for the event together with photos from the event, one of which was of Mr. Penny. [ 18 ] SB also testified that she had sexual intercourse with Mr. Penny on another occasion when her cousin, who I will refer to as “CM”, was in the camper van with them. SB said that when Mr. Penny was penetrating her vagina with his penis, CM asked what they were doing and Mr. Penny put CM’s hand on his penis to show her. I note that CM testified at the trial and admitted on cross- examination that she had no recollection of any dates - not days, months or years.

However, she corroborated SB’s version of events of the sexual intercourse between SB and Mr. Penny, including Mr. Penny putting CM’s hand on his penis to demonstrate what he and SB were doing. [ 19 ] SB’s evidence was that she had frequent sexual intercourse with Mr. Penny in the camper van, in Mr. Penny’s personal vehicle and in the vehicles that Mr. Penny was driving for work. She said that she was not a willing partner at first, but that after some time, perhaps three months, she was a willing partner and would sometimes initiate sexual activities with Mr. Penny.

Her evidence was that the sexual activities took place throughout the period of November 2008 to August 2009, when she was 14 and 15, and that she considered them to be in a girlfriend-boyfriend relationship. [ 20 ] SB says that the sexual activity with Mr. Penny continued until she moved away from Calgary in the summer of 2009. Mr. Penny’s evidence [ 21 ] Mr. Penny admitted he had sexual intercourse with SB sometime in the later part of February 2008, a few weeks after SB turned 14 years old and in early March, 2008, just weeks before the law changed the age of consent to 16 years old. [ 22 ] Mr.

Penny’s testimony was that he had three dates with SB. [ 23 ] Mr. Penny said that the first date he had with SB was around Valentine’s Day 2008 when IM invited him to her family home and he sat at the kitchen table with SB, IM and IM’s husband. [ 24 ] The second date was the following Saturday afternoon. Mr. Penny picked up SB in his personal vehicle, a Ford Explorer, and they drove to the Max Bell Arena area and took the CTrain to downtown Calgary. Mr. Penny had his camera and he and SB spent several hours walking around downtown and taking photos.

They eventually bought food at A&W and took the CTrain back to where Mr. Penny’s vehicle was parked. They started eating their food in Mr. Penny’s vehicle. Mr. Penny said that up to this point there had been nothing romantic about their time together or their conversations. SB started to kiss and caress him and ultimately straddled him while he sat in the driver’s seat and she rubbed against him to arouse him. Mr. Penny said this sexual attention was unwanted, but he did not resist. He said that SB took off her pants and unzipped his pants.

She mounted him while he sat in the driver’s seat and the sexual intercourse lasted for ½ an hour. After the sexual intercourse, SB put her pants on and Mr. Penny said he drove SB home. [ 25 ] One or two weeks later, at the beginning of March 2008, Mr. Penny took SB on the third date, to a movie. Afterward, SB did not want to go home, so they bought food from Wendy’s and parked in a parking lot in southeast Calgary to eat it and the leftover popcorn from the movie. Mr. Penny said that on this occasion SB was more sexually aggressive even though, once again, the sexual attention was not sought, or wanted, by Mr.

Penny. On this occasion, SB did not pull off her pants, but just pushed them down and undid Mr. Penny’s zipper and pulled his pants down. SB mounted Mr. Penny in the driver’s seat and eventually turned around so that she was looking out of the front windshield. The sexual intercourse lasted only a few minutes because Mr. Penny said it was obvious that he was

not interested in pursuing the sexual activity. [ 26 ] Mr. Penny’s evidence was that he saw SB at church functions after the third date but that no further sexual intercourse ever took place. [ 27 ] Mr. Penny said that until April 2008 he was a manager for Able Auto and organized vehicle transfers between dealerships. To record the condition of the cars being transported before and during transport, Mr. Penny set up a recording device in both the red Dodge Caravan he drove for work and his personal Ford Explorer. [ 28 ] Mr.

Penny said that at one time he had a laptop mounted in his vehicle, similar to that used by police at the time, which he used to record video and audio from a camera mounted near his rearview mirror pointing towards the road ahead. Mr. Penny said that he was stopped by police on one occasion and was informed that his laptop mounted in the front of the vehicle was not legal and needed to be removed. As a result of this advice, Mr. Penny purchased two dashcams at Walmart for his work and his personal vehicles. Mr. Penny did not provide any timeframe for this purchase.

I note that SB testified that once, when she was in Mr. Penny’s vehicle, she recalled seeing a laptop mounted in the front seat area. [ 29 ] Mr. Penny’s evidence was that the dashcams would record when there was motion in front of the camera or vibration in the car. Mr. Penny was not asked whether the engine had to be running for the recording to be triggered and there was no evidence as to whether the engine was running during the sexual intercourse with SB. Mr.

Penny also said that the area where he parked his car near the CTrain for the second date, and the parking lot where he parked on the third date, were high traffic areas with pedestrians and vehicles moving around and parking. [ 30 ] Mr. Penny stated that each of the dashcams recorded to an SD card which had a capacity of two hours, consisting of video of the road ahead of the car and in-car audio. Mr. Penny said that he was meticulous about having multiple SD cards on hand and replacing them as they filled up while he was driving. At the end of every day, Mr.

Penny said he would load the data, which was time and date stamped, from the SD cards to a computer which had two hard drives. [ 31 ] In addition, Mr. Penny said that, to keep himself organized, he kept a daily planner in the form of and agenda for many years, including 2008 and 2009. He said he was not spontaneous and that he recorded everything that he was to do in the agenda, and would have included the pick-up locations, times and destinations for the second and third dates with SB. [ 32 ] Mr.

Penny said that, in 2011, he was made aware by family members that a complaint had been made to the police regarding his sexual relations with SB. Mr. Penny was not contacted by police in 2011. [ 33 ] In 2016, after a few years in storage, Mr. Penny started the computer on which he had uploaded the SD cards from the dashcam. It was not clear from his evidence if he had transferred any files from the laptop to this computer. He tried to load some new software onto the computer and the screen went blank. His understanding was that the hard drives had failed, but that he might still be able to retrieve his data.

He spoke to a friend who worked with personal computers and the advice he was given was that it would be more costly to repair the old computer than to buy a new one. As a result, Mr. Penny made sure that the information could never be retrieved from the hard drives and discarded the computer. [ 34 ] It was also around this time that Mr. Penny was moving to a new residence in Calgary and reconsidering the items he was keeping in storage, including his old agendas. He decided that he did not want to “move garbage”, so he put his agendas in the recycling bin. [ 35 ] Mr.

Penny first learned that he was charged with offences relating to SB in January 2018. As set out in the Agreed Statement of Facts, the pre-charge delay included a period of inactivity of just over six years and two months when the “investigation lay dormant”. [ 36 ] Mr. Penny’s position is that, but for the delay in charging him with the offences, he would have been able to produce the dashcam recordings and his 2008 agenda, both of which would exonerate him. Detective Palmer [ 37 ] Detective Palmer testified that although there were policies and procedures in place to keep track of police files: (

a) the over six-year delay should have not occurred; (

b) there is no excuse for steps not having been taken in relation to SB’s file by the police between 2011 and 2017; and (

c) the delay was a result of an internal error attributable to the Calgary Police Service. Pre-Charge Delay [ 38 ] In R v Potter , 2020 NSCA 9 , the Nova Scotia Court of Appeal addressed pre-charge delay arising out of charges relating to share price manipulation after the failure of a small publicly traded company. At para 219, footnotes omitted, the Court said: It is well-established that delay during the investigation of an offence may give rise to a Charter breach. In Mills v. The Queen , Lamer, J. (as he then was) wrote in his dissent (on other grounds) at p. 945: Pre-charge delay is relevant under ss. 7 and 11(

d) because it is not the length of the delay which matters but rather the effect of that delay upon the fairness of the trial. Pre-charge delay is as relevant as any other form of pre-charge or post-charge conduct which has a bearing upon the fairness of the trial. In other words, pre-charge delay is relevant to those interests which are protected by the right to a fair trial

whereas it is irrelevant to those which are protected by s. 11(b). Similarly, pre-charge delay may be a relevant consideration under thedoctrine of abuse of process in the same manner as any other conduct by the police or the Crown which may be held to constitute anabuse of process. [39] In R v Hunt, 2017 SCC 25, the Supreme Court of Canada endorsed the reasoning of Hoegg JA, in dissent in R v Hunt, 2016NLCA 61, and overturned the majority of the Court of Appeal which had upheld the trial judge’s finding of an abuse of process and abreach of s 7 of the Charter.

The following references I make to this case will be to the decision of the Court of Appeal of Newfoundlandand Labrador. [40] In Hunt, Hoegg JA set out the framework for analyzing s 7 breaches, at para 61: ... The analytical framework for determining breaches of

section 7 rights involves determining whether a person’s

section 7 right hasbeen engaged and deprived by the state, and if so, whether the deprivation was in accordance with the principles of fundamental justice.If the deprivation was not in accordance with the principles of fundamental justice, a breach of

section 7 is established and a remedyunder section 24(2) may follow. [41] In R v Cunningham, [1992] OJ No 2754 (CA), the Ontario Court of Appeal issued a short Endorsement, after a trial judgegranted a stay at the commencement of the trial. In this context, the Court said that the accused was required to show, on a balance ofprobabilities, actual prejudice to the right to make full answer and defence: The trial judge's conclusion at the outset of the trial is that the respondents' ability to make full answer and defence was prejudiced by thepre-charge delay is not supported by the evidence.

At its highest, the evidence suggested the possibility that the pre-charge delay mightimpair that right. The mere possibility that pre-charge delay could prejudice the right to make full answer and defence does not justify astay of proceedings at the commencement of trial. Absent a demonstration by the respondents, on the balance of probabilities, of actual prejudice to the right to make full answer anddefence justifying a stay, there was no basis in this case for the finding that the pre-charge delay infringed the respondents' rights underthe Charter.

The appeal should be allowed, the stay vacated and the matter remitted to the trial court for trial. The trial should be expedited. Nothingsaid in these reasons in any way precludes the trial judge from dealing with any allegation of unfairness based on pre-charge delay whichmay arise in the course of the trial. [42] In R v Rourke, (SCC), [1978] 1 SCR 1021, a pre-Charter decision, the majority dismissed the appeal on thebasis that the trial judge had no discretion to stay the charges for abuse of process.

This was position was reversed in R v Jewitt, (SCC), [1985] 2 SCR 128, where the Supreme Court of Canada recognized, pages 136 and 137, that “there is a residualdiscretion in a trial judge to stay proceedings where compelling an accused to stand trial would violate those fundamental principles ofjustice which underlie the community’s sense of fair play and decency and to prevent the abuse of a court’s process through oppressiveand vexatious proceedings”.

In Rourke, while concurring in the dismissal of the appeal, but concluding that a trial judge could staycharges on the basis of abuse of process, Laskin J said, at pages 1040-1041: ... The appellant is in effect asking the courts to undertake the supervision, through their power to control prosecutions before them, ofthe operation 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. The time lapse between the commission of an offence and the laying of a charge following apprehension of an accusedcannot be monitored by Courts by fitting investigations into a standard mould or moulds.

Witnesses and evidence may disappear in theshort run as well as in the long, and the accused too may have to be sought for a long or short period of time. ... [43] In Hunt, at para 93 to 95, Hoegg JA also addressed the nature of Crown conduct which could warrant a stay: The evidence discloses no suggestion of improper conduct, wrongdoing, bad faith, improper motivation, or vexatiousness in the Crown’sconduct of the investigation. The Respondents maintain, however, that oppression is the basis on which abuse of process is established ... ... oppression does not have to involve Crown “malfeasance or misconduct”.

However, I am of the view that there must be some Crownconduct which can be fairly described as offensive, even if not made in bad faith or for an ulterior purpose, in order to constituteoppression so as to support a determination of abuse of process. Such conduct must rest on some positive action on the part of the oppressor and be rooted in the facts and circumstances of the Crown’sconduct of the case.

I am also of the view that the oppressive action must be apparent so as to permit an objective evaluation of it, andthat it involve an element of injustice or unfairness, or at least result in injustice or unfairness to an accused. [44] In R v Bradford, (ON CA), [2001] O.J. No. 107 (ONCA), an historical sexual assault case, the OntarioCourt of Appeal overturned the trial judge’s stay of proceedings on the basis that the complainant’s written statement, given a few daysafter her initial oral statement, had been lost.

The Court of Appeal did not disturb the trial judge’s finding of “unacceptable negligence” inlosing the complainant’s statement. However, at para 42, the Court of Appeal found that, in the context of the other evidence available tothe defence, the lost statement would not have made a significant difference: ... Although the complainant gave detailed evidence at trial concerning the alleged incidents, she did not remember a number of detailsconcerning her surroundings at the time of the alleged assaults about which she was asked by the defence.

Having regard to the oralstatement and to the evidence at trial, it is unlikely, however, that the signed statement would have contributed any appreciation of thesedetails. [45] In Potter, at para 223, footnotes omitted, the Nova Scotia Court of Appeal summarized some of the principles to be applied

when unconstitutional pre-charge delay is alleged: Lost evidence challenges typically fall into two broad categories: those involving the loss of potential exhibits, and those involving theloss of testimonial evidence through faded memory or witness unavailability. Although a claim of lost evidence engages a case-specificcontextual analysis, a number of broad principles emerge from the authorities.

We note: • A stay is an exceptional remedy granted only in the clearest of cases (this principle applies equally to the second categoryof abuse of process). • An accused seeking a stay on the basis of lost evidence must show on a balance of probabilities actual prejudice to theirfair trial rights. • Actual prejudice is demonstrated “when the accused is unable to put forward [their] defence due to the lost evidence andnot simply that the loss of the evidence makes putting forward the position more difficult”. • In the context of lost testimonial evidence, an accused seeking a stay must demonstrate the witness would have givenspecific evidence without which a defence could not be fairly advanced. • In assessing whether a trial would be unfair, it is important to remember that an “accused is entitled to a trial that isfundamentally fair and not the fairest of all possible trials”. [46] In addition to these principles, the following can be added: (

a) There must be sufficient causal connection between the state-caused delay and the prejudice suffered by the accused totrigger s 7 of the Charter: Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44, para 60. (

b) An abuse of process may arise where the Crown carries out an investigation which is motivated by an ulterior purpose:Rourke, page 1040. (

c) Courts are not authorized to supervise the operation and efficiency of police investigations: Rourke, pages 1040-1041.Judges do not review the operation and efficiency of the investigation because to do would conflate the roles of judicial and executivebranches of government: Hunt, para 104. (

d) It is not the length of the pre-charge delay which matters, but rather the effect of that delay upon the fairness of the trial:Mills, page 945. (

e) The mere possibility that pre-charge delay could prejudice the accused’s right to make full answer and defence does notjustify a stay of proceedings at the commencement of trial: Cunningham, para 1; Bradford, para 8. Should a Stay be granted for an Abuse of Process? [47] In R v O’Connor, (SCC), [1995] 4 SCR 411, the Supreme Court of Canada articulated the test fordetermining when a stay should be granted for an abuse of process.

This test was reiterated by Moldaver J, writing for the majority, in Rv Babos, 2014 SCC 16 , [2014] 1 SCR 309, at paras 31 to 33: Nonetheless, this Court has recognized that there are rare occasions - the “clearest of cases” - when a stay of proceedings for an abuse ofprocess will be warranted ... These cases generally fall into two categories: (1) where state conduct compromises the fairness of anaccused’s trial (the “main” category); and (2) where state conduct creates no threat to trial fairness but risks undermining the integrity ofthe judicial process (the “residual” category) ...

The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:

(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested,perpetuated or aggravated through the conduct of the trial, or by its outcome” ...

(2) There must be no alternative remedy capable of redressing the prejudice; and

(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance theinterests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “theinterest that society has in having a final decision on the merits” ... The test is the same for both categories because concerns regarding trial fairness and the integrity of the justice system are often linkedand regularly arise in the same case. Having one test for both categories creates a coherent framework ...

But while the framework is thesame for both categories, the test may - and often will - play out differently depending on whether the “main” or “residual” category isinvoked. [48] Mr. Penny asserts that his case falls into both categories described in Babos. As a result, I must apply the test for both themain and residual categories. Main category: where state conduct compromises the fairness of an accused’s trial Step 1: There must be prejudice to the accused’s right to a fair trial

[ 49 ] Mr. Penny asserts that, as a result of the delay of over six years between SB making the complaint and being charged with the offences, he was prejudiced by the loss of laptop or dashcam video and audio evidence, the loss of his agenda and the faded memory of witnesses who were unable to provide specifics and details, especially about dates. [ 50 ] Mr. Penny explained how the laptop or dashcam recordings would be activated by movement outside the vehicle or vibration in the vehicle, but there was no evidence that the laptop or dashcam was activated during the sexual intercourse he engaged in with SB. Mr.

Penny did not say that he saw any video, or heard any audio, of the incidents of sexual intercourse with SB. There is no evidence that a recording was ever made. As a result, it is speculative that a recording would have been available to Mr. Penny had the police investigation moved forward without delay. [ 51 ] The defence suggestion that perhaps there was video of the sexual activities between Mr.

Penny and SB because the camera might have recorded a reflection on the inside of the windshield is fanciful conjecture as there is no evidence that this ever happened, let alone on the days in question. [ 52 ] I do not need to assess the credibility of Mr. Penny’s evidence regarding his meticulous habit recording of video and audio on multiple SD memory cards each day and loading them onto his computer, because there is no evidence that the recordings that Mr.

Penny says he wants to rely on even exist. [ 53 ] With reference to the laptop or dashcam video and audio recording, since it is speculative that it was ever made, it can be no more than a mere possibility that pre-charge delay prejudiced Mr. Penny’s right to make full answer and defence. The possible loss of this evidence does not justify a stay of proceedings. [ 54 ] Mr. Penny said that he kept an agenda to record all of his work obligations and social engagements. Mr. Penny said the agenda was a tool to keep himself organized.

He would record what he was to do, the place he was to do it and the time that he had agreed to do it. Rather than remembering specific entries in the agenda, Mr. Penny says that the agenda would show that he planned to meet SB on the dates when he said that they went downtown and went to the movies together. At its best, this evidence would be a record of Mr. Penny’s plans to meet SB and the location and time of pick up. [ 55 ] Mr.

Penny says that, if available to him, he would rely on the agenda and laptop or dashcam recording to support his testimony at the trial that he had sexual intercourse with SB in late February and early March 2008. This evidence does not directly refute SB’s evidence regarding Mr. Penny’s attendance at the rave party, because he says he attended it, and does not address the allegation that he had sexual intercourse with SB in the camper van in her backyard after the rave party. Similarly, Mr.

Penny’s lost evidence does not refute the allegation that he had sexual intercourse in the camper van while CM was in attendance. Mr. Penny’s intended use of the lost agenda and laptop or dashcam recording is not to contradict the Crown’s evidence, rather is it, in defence counsel’s words, to “bolster” what Mr. Penny said in his oral testimony so he can assert that SB’s version of events is not reliable. [ 56 ] Mr. Penny asserts that a defence to the charges is unavailable to him because he cannot rely on the lost evidence due to the pre-charge delay. However, Mr.

Penny put forward his defence and version of events in his oral testimony. Brenda Penny and a family friend corroborated portions of his version of events. Mr.

Penny has been able to put forward his defence, although it may have been more difficult without the lost evidence, if it existed. [ 57 ] In Bradford , the Ontario Court of Appeal noted that prejudice occurs when the defence cannot be advanced, not when the defence is made more difficult: The fact that a piece of evidence is missing that might or might not affect the defence will not be sufficient to establish that irreparable harm has occurred to the right to make full answer and defence.

Actual prejudice occurs when the accused is unable to put forward his or her defence due to the lost evidence and not simply that the loss of the evidence makes putting forward the position more difficult. To determine whether actual prejudice has occurred, consideration of the other evidence that does exist and whether that evidence contains essentially the same information as the lost evidence is an essential consideration. ... [ 58 ] Mr. Penny was able to articulate his defence. Mr. Penny’s own testimony was that the lost evidence would have contained the same information he testified about. Mr.

Penny did not say that there was any new information contained in the evidence. As defence counsel noted, the lost evidence was to be used to “bolster” Mr. Penny’s own evidence. [ 59 ] Mr. Penny further asserts that he is prejudiced as a result of the witnesses in this trial having faded memories. However, Mr. Penny did not suffer from any significant lapses of memory and gave specific and detailed evidence about the dates on which he says the sexual intercourse with SB occurred. The other two witnesses called by the defence had no significant memory gaps regarding the matters to which they testified to.

All three of the defence witnesses said that they were able to remember the timing of certain events. To the extent that the Crown’s witnesses were unable to remember particulars and dates, those failings will presumably be raised, and relied on, by the defence when dealing with the merits of the charges. [ 60 ] I find that Mr. Penny is able to make full answer and defence and has not shown, on a balance of probabilities, any actual prejudice to his right to a fair trial.

Step 2: There must be no alternative remedy capable of redressing the prejudice [ 61 ] Given that I have found no prejudice, I need not address this point. Step 3: Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits”

[62] There is no uncertainty as to whether a stay is warranted after steps 1 and 2 and I need not address this step.

Residual Category: where state conduct creates no threat to trial fairness but risksundermining the integrity of the judicial process Step 1: There must be prejudice to the integrity of the justice system that “will be manifested, perpetuatedor aggravated through the conduct of the trial, or by its outcome” [63] To find a pre-charge abuse of process there must be more than conclusory statements about egregious conduct and I mustengage in an analysis of the Crown conduct giving rise to the alleged abuse of process.

In Hunt, at para 84, Hoegg JA said: I do not dispute that ten years is a long time to be investigating a complaint of criminal conduct. However, determining that investigatoryor pre-charge delay constitutes abuse of process requires more than conclusive statements that the pre-charge delay was egregious andthat the Respondents suffered an exacerbation of personal prejudice due to the passage of time. I would also note that egregiousnessinvolved in residual category abuse of process relates to Crown conduct ...

What is required to make out abuse of process is egregiousCrown conduct in the handling of the investigation. It is the Crown conduct that is in issue, not the length of the delay. [64] In R v Bernard, 2018 ABCA 396, at para 27, the Alberta Court of Appeal noted that excessive delay can only succeed as aCharter argument where there is egregious conduct amounting to an abuse of process: ... There are no limitation periods with respect to indictable offences. Excessive delay can engage s. 7, but only where it reflectsegregious misconduct on the part of the Crown amounting to an abuse of process.

In this appeal, the appellant is not able to show howhis right to a fair trial was compromised by the delay, or that the administration of justice was brought into disrepute. By the time thatthe DNA “hit” was discovered the complainant was already dead. The delay in this case, while undesirable, does not amount to an abuseof process. [65] In this case, there is a direct nexus between the pre-charge delay and the actions of the Calgary Police Service. DetectivePalmer was forthright when he admitted that the delay was the result of an internal error by the Calgary Police Service.

However, therewas no evidence of any ulterior purpose, improper conduct, wrong doing or bad faith. [66] The evidence is that the police file fell between the cracks. The Calgary Police Service lost track of the file after the initialDetective left for health reasons shortly after commencing the investigation. The status of the file did not come to the attention of thepolice until Mr. Penny initiated a request for a pardon and it was discovered that there was an open file. Upon this discovery, DetectivePalmer was assigned to the file and completed the investigation. Charges were laid against Mr.

Penny on January 18, 2018. [67] The defence is not suggesting that I review the operation and efficiency of the police investigation in this case. It is admittedthat the police file inexcusably lay dormant for over six years. [68] In Bradford, the trial judge found that there had been “unacceptable negligence” in relation to the loss of the complainant’sstatement. In this case, Detective Palmer did not attempt to make excuses for the Calgary Police Service allowing the file to remaindormant for over six years. Losing track of a file for over six years in any workplace would be negligent.

In the context of sexual assaultcomplaints to the police, allowing cases to lay dormant for over six years is unacceptable. I find that the delay in this case was a result ofunacceptable negligence. [69] I now turn to whether there is prejudice to the integrity of the justice system that “will be manifested, perpetuated oraggravated through the conduct of the trial, or by its outcome”.

In Babos, at para 37, Moldaver J, after referring to the description of theresidual category in Canada (Minister of Citizenship and Immigration) v Tobiass, (SCC), [1997] 3 SCR 391, made itclear that there does not have to be state misconduct to affect the integrity of the justice system: ... while it is generally true that the residual category will be invoked as a result of state misconduct, this will not always be so.Circumstances may arise where the integrity of the justice system is implicated in the absence of misconduct. [70] As I have noted, there is no evidence in this case of any misconduct on the part of the Calgary Police Service. [71] In Babos, at para 38, Moldaver J said that the question to be decided in this first step of the test is whether the proceeding, inlight of the impugned conduct, would do further harm to the integrity of the justice system.

Further, Moldaver J noted that the court mustconsider whether the proceeding would lend judicial condonation to the impugned conduct. [72] Since 2010, when Detective Palmer joined the Child Abuse Unit, and perhaps before then, the Child Abuse Unit hasimplemented policies to ensure the appropriate transfer of open files when officers leave that unit. In addition, the Child Abuse Unitmaintained file tracking systems. I have found the loss of the police file in this case was a result of unacceptable negligence, but theevidence infers that this was an isolated event.

There was no evidence that losing files is a systemic problem at the Calgary PoliceService. In fact, the evidence is to the contrary as there were, and still are, policies and systems in place to prevent files being lost orlaying dormant for unacceptable periods of time. There was no explanation from Detective Palmer as to why the policies and systemsfailed in relation to this particular file. However, perfection is not required.

In this case, there were efforts made to manage the files andthere was no evidence that the systems implemented were unreasonable: see Babos, para 41, footnote 5. [73] I find that losing track of the police file and allowing it to lay dormant until Mr. Penny’s initiation of a pardon request resultedfrom unacceptable negligence, but was an isolated event and, while inexcusable, does not go as far as to shock the community conscienceor offend a sense of fair play and decency. It cannot be said that proceeding in the face of the impugned conduct would do further harmto the integrity of the justice system.

Furthermore, given that there is no evidence of any systemic problem, there is no judicialcondonation of the impugned conduct by determining the trial on the merits of the case. I find that there is no prejudice to the integrity of

the justice system that will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome. Step 2: There must be no alternative remedy capable of redressing the prejudice [ 74 ] Once again, I have found no prejudice and do not need to address this step.

Step 3: Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits” [ 75 ] I have already found that there is no prejudice in the residual category and there is no uncertainty to balance in step 3. [ 76 ] Moldaver J’s comments, in Babos , at para 44 , on the threshold in an application for a stay arising from an alleged abuse of process explains why this type of application is successful only in the most exceptional cases: Undoubtedly, the balancing of societal interests that must take place and the “clearest of cases” threshold presents an accused who seeks a stay under the residual category with an onerous burden.

Indeed, in the residual category, cases warranting a stay of proceedings will be “exceptional” and “very rare” ... But this is as it should be. It is only where the “affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases” that a stay of proceedings will be warranted ... [ 77 ] I find that this is not one of the clearest of cases, abuse of process has not been established and this case does not warrant a stay of proceedings. Heard on the 23 rd day of August, 2021 to the 27 th day of August, 2021.

Delivered orally on the 27 th day of August, 2021. Dated at the City of Calgary, Alberta this 13 th day of September, 2021. E.J. Sidnell J.C.Q.B.A. Appearances: Rebecca Ross for the Crown Ryan Patmore for the Accused