R. v. S.A, 2011 NUCJ 07

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. S.A, 2011 NUCJ 07 Date: 20110414 Docket: 23-09-79 Registry: Iqaluit Respondent: Her Majesty the Queen -and- Applicant: S.A. ________________________________________________________________________ Before: The Honourable Mr. Justice N. Sharkey Counsel (Respondent): Faiyaz Alaibhi Counsel (Applicant): Laura Stevens Location Heard: Iqaluit, Nunavut Date Heard: December 17, 2010 Matters: The Canadian Charter of Rights and Freedoms, ss.7 , 11 (d), and 24

(1) REASONS FOR JUDGMENT (NOTE: This document has been edited for publication) Restriction on Publication:

By court order made under

section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.” I. INTRODUCTION [ 1 ] The accused, SA, is now 44 years old. He is charged with sexual offences which allegedly took place a long time ago - between 1979 and 1983, when he was between 12 and 15 years old. [ 2 ] The complainant (alleged victim) is his female cousin, LA. In late 2005 she told the police that she had been sexually abused by four people - namely, SA, two of her brothers, and her father.

She said this happened many years ago when she was less than fourteen years old. [ 3 ] The police started an investigation. And in February 2006 they interviewed the accused, SA. [ 4 ] Shortly after this interview, LA contacted the police and told them that she didn't want any charges to proceed because her father (also a suspect) was dying. [ 5 ] The police stopped their investigation in February 2006. Sometime afterwards, LA's father died. No statement was ever taken by police from LA's father. [ 6 ] A little over three years after she made her first complaint to the police, LA came to see police again.

She told them that she wanted the investigation to start again. LA said the reason she had asked the police to stop investigating three years earlier was because her family had blamed her father's illness on her. [ 7 ] The police restarted the investigation. They interviewed the accused, SA, a second time. A few months later SA was charged. [ 8 ] SA has asked this Court to enter a judicial stay of proceedings to stop the case against him from proceeding. [ 9 ] SA says that his rights under sections 7 and 11 (

d) of The Canadian Charter of Rights and Freedoms have been violated.

These sections guarantee every person charged with an offence the right to a fair trial, and the right not to be deprived of their liberty except in accordance with the principles of fundamental justice. [ 10 ] SA says that the delay between the time the police stopped their investigation in 2006, and then restarted it in 2009, has violated his Charter rights for two reasons. [ 11 ] First, SA says that since no statement was obtained from LA's father, who died in the interval, he has been denied evidence (or the opportunity to obtain evidence) relevant to his trial.

SA says that he cannot get a fair trial because without this evidence he cannot properly defend himself. [ 12 ] Second, SA says that it is the police and the Crown who should make decisions about whether to prosecute a case and not the alleged victim. SA says that the Crown in this case has allowed the 'tail to wag the dog' by stopping and restarting the investigation solely at the request of LA. Thus, SA says, the proceedings against him are oppressive.

He says that to compel him to stand trial under these circumstances would undermine the principles of fundamental justice and the community's sense of decency and fair play.

[ 13 ] I have denied SA’s application for a judicial stay for two reasons: First, SA has failed to show that the absence of evidence from DAS has affected his chances for a fair trial. The application is premature in that there is no knowing at this time what a statement from DAS, if it had been taken, would have contained, or whether DAS might have refused to speak to the police at all. However, SA may be able to show at the time of his trial that this omission was prejudicial, depending upon how the evidence unfolds. That application may be made to the judge at trial if the evidence at that time supports it.

Second, the conduct of the police in stopping and then restarting their criminal investigation was not “a case of the tail wagging the dog”. It was a case where the authorities properly exercised their discretion to allocate resources based on the changing circumstances of the victim, and the probability of conviction based on the attitude of the key witness. II. BACKGROUND A. The historic scenario [ 14 ] The accused is charged in Youth Court that he committed 3 sexual offences against the female complainant, LA, his cousin.

All offences are alleged to have been committed between February 13, 1979 and January 3, 1983. [ 15 ] The charges - under the Criminal Code provisions then in force – are: • count # 1 - rape (section 143 (a)) • count # 2 - sexual intercourse with a female under 14, and not married to the accused (s. 146 (1)) • count # 3 - indecent assault upon a female person (s.149) [ 16 ] The governing juvenile and/or youth legislation in force at the time of the alleged offences is not referenced in the Information charging SA with these offences, but this is not relevant in dealing with the application at hand. [ 17 ] The accused was born in 1967.

Accordingly, he was between the ages of 12 and 15 at the time of the alleged offences. In addition to SA, two other individuals were charged who would also have been youths at the time of the alleged offences. The charges were laid in April 2009, when the accused was 42 years old - some 27 to 30 years after the alleged events. [ 18 ] The matter had come to the attention of police in December 2005 when LA first reported the matter.

LA said that she had been sexually assaulted by her father, DAS; her brothers, DAJ and RA; and her cousin, the accused, SA. [ 19 ] On February 16, 2006, the accused, SA, was interviewed by an RCMP officer regarding LA's allegations.

Later that same day, February 16, 2006, LA left a phone message for one of the investigating officers indicating that she wished to speak with him, and that she wanted the RCMP to stop investigating the case. [ 20 ] Three days later, on February 19, 2006, LA spoke with this investigating officer and told him that she wanted the investigation stopped - she said that her father was very sick, that she had forgiven him, and that she wanted the investigation into all suspects to stop. [ 21 ] The next day, on February 20, 2006, LA faxed a letter to the officer with a written request that the investigation be concluded.

This fax was filed as an exhibit in these proceedings. It says (from Applicant: Appendix A):

"I'm writing you this to let you know that I want to stop all charges against my family, because my dad only has a few more months to live, due to liver cancer. Koana [ed: 'thanks'] Lucy." [ 22 ] Following receipt of this fax the officer requested that LA's file be 'reviewed for conclusion.' This review was done within the RCMP and the investigation was stopped on February 26, 2006. [ 23 ] No statement was taken by police from LA's father, DAS.

It is not disputed by the Crown that no attempt was made by police to obtain such a statement. [ 24 ] On January 6, 2009, LA telephoned the police asking for the file to be reopened.

This would be roughly three years and one month from the time when she had made her complaint to police on December 7, 2005, and roughly two years and eleven months from the time she sent the fax to police asking for a stop to the investigation on February 20th, 2006. [ 25 ] A few days later, on January 11, 2009, LA met with police: she told them that she had requested a stop in the investigation three years earlier because her father had been dying of liver cancer and her family was blaming the disease on her.

She then provided an audio statement. [ 26 ] On January 15, 2009, the accused, SA, was detained by police and provided a statement regarding LA's allegations. [ 27 ] And, on April 8, 2009, the Information charging SA was laid. He was served with a summons one week later, on April 16, 2009, for his first scheduled Court appearance on June 16, 2009. [ 28 ] The relevant passages of time are as follows:

a) Three (3) years and four (4) months passed between the time that LA made her complaint, on December 7, 2005, and the swearing of an Information, on April 8, 2009 - the time between the complaint and the criminal charges;

b) Three (3) years and six (6) weeks passed between the time the file was closed or 'reviewed for conclusion' by the RCMP, on February 26, 2006, and the swearing of an Information, on April 8, 2009 - the time between closing the file at LA's request, with no criminal charges, and then later, the criminal charges;

c) Two (2) years, ten (10) months, and roughly two (2) weeks passed between the time the police closed the file, on February 26, 2006, and the time that they restarted the investigation at LA's request (by taking a statement from her on January 11, 2009, and then interviewing the accused, SA, a few days later, on January 15, 2009) - the time between closing the file at LA's request, with no criminal charges, and then later restarting the investigation at her request and putting the accused on notice that he was once again being investigated; [ 29 ] DAS is now deceased.

Although the date of his death is not in evidence before the Court, he passed away sometime between the time that the police decided not to continue with the investigation, in February of 2006, and the time that the charges were laid, in April 2009. [ 30 ] It is not in dispute that DAS (SA's father) was the alleged main perpetrator of the offences charged - and, as well, the only adult involved at the time of the alleged offences. [ 31 ] The accused, SA, pleaded not guilty to all 3 charges when he first appeared in Court, on June 16, 2009.

At that time he was represented by counsel, and the case was set for trial to September of 2009.

[ 32 ] The case was further adjourned to be tried on November 30, 2009. In the interim, SA retained current counsel, who filed the application now before the Court, on November 13, 2009, to have the charges judicially stayed - and the case against him ended - as an abuse of process. [ 33 ] SA filed his own affidavit in support of the application for a stay of proceedings.

In the affidavit he says that he was interviewed by police on two occasions: the first time, on February 16, 2006, and again, on January 15, 2009. [ 34 ] SA also said in his affidavit that he has been advised that he was not charged after his first interview, in 2006, because the complainant told the police at that time she did not want to proceed with charges. SA does not say when he was told this, but nothing turns on this point. [ 35 ] It is not in dispute that at least during one of his two interviews with police SA gave an inculpatory statement.

Counsel for SA asserts, in argument, that SA also gave statements to police ranging from total denial, to witnessing the events, to being forced to participate by DAS. [ 36 ] SA's case at this stage is not about his guilt or innocence. It is about the process of being in court.

SA's Counsel concedes that for the purpose of this application, the Crown case, taken at best, would provide support for LA's allegations against SA, within (but not throughout) the time period set out in the Information. [ 37 ] SA's trial date was adjourned until February, 2010, and again, until the end of April, 2010 - first, to allow the Crown time to respond to the application, and second to fix a date for a hearing on the merits of this application. [ 38 ] The Crown responded to this application at the end of March 2010, and a hearing on the merits was set initially for April 26, 2010, as part of the regular Court docket in the community where the offences were alleged to have taken place. [ 39 ] This hearing was further adjourned twice (and any prospective trial date held in abeyance) during the summer of 2010 - once in July, and again, in August. [ 40 ] The logistics of conducting the legal argument in a small community during the regular Court docket were problematic.

In addition - but only as a minor aspect of this delay - the agents for SA's counsel had lost contact with him briefly and so counsel was unable to get instructions to proceed with the application in the absence of her client. [ 41 ] Eventually, SA's application for a judicial stay was set for a hearing on the merits, in Special Criminal Chambers, at Iqaluit, on November 5, 2010, at which time it came before me. [ 42 ] I heard the submissions of Counsel (via telephone) and directed, afterwards, that they each file a written synopsis of their extensive, and thorough, oral arguments, by December 17, 2010. [ 43 ] Counsel graciously complied with this suggested timeline, and SA's application awaits this Judgment.

B. Position of the parties (

i) The Applicant’s Position

[ 44 ] The accused, SA, says that his rights guaranteed by sections 7 and 11(

d) of the Canadian Charter of Rights & Freedoms have been infringed.

Section 7 of the Charter provides that an accused is not to be deprived of his liberty, except in accordance with the principles of fundamental justice.

Section 11(

d) provides that an accused is to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. [ 45 ] First, the accused says that he has been deprived of the right to a fair trial by the failure of the authorities to obtain a statement from DAS, who is not now available to be interviewed or examined. A most fundamental principle of justice is, of course, a fair trial.

In order for a trial to be fair an accused must be able, and have opportunity, to make full answer and defence to the charges brought against him. [ 46 ] The accused says it is important that the police did not take any statement from DAS, - the alleged main perpetrator as well as a potential witness - in the early stages, when LA first complained. [ 47 ] The accused says that the police knew DAS was dying when they decided to stop the investigation - and they knew, obviously, that he had died, when they restarted it. [ 48 ] The accused says that because of this delay in conducting a proper investigation, and bringing charges forward in a timely manner, he has been deprived of evidence potentially relevant to his case - including the opportunity, if it were necessary, to subpoena DAS with a view to questioning him as hostile witness in order to assist his defence. [ 49 ] The accused says that this pre-charge delay has deprived him of the ability to make full answer and defence to the charges.

Thus he says his 'fair trial interests' - which are well recognized in law - have been prejudiced. [ 50 ] Second, the accused says - separate and apart from whether he can get a fair trial - that this prosecution must be stopped because it is an abuse of the court process.

He says that s.7 of the Charter guarantees a person the right not be deprived of their liberty, except in accordance with the principles of fundamental justice, and that the Court has a residual power to enter a judicial stay of proceedings when this right is infringed - separate and apart from any 'fair trial' interest. [ 51 ] The accused says that the police violated those fundamental principles of justice which underlie the community's sense of fair play and decency by allowing the wishes of the complainant to govern the conduct of the investigation. [ 52 ] The accused says that for the Crown to restart the prosecution, simply on the request of the complainant, years after exercising their discretion not to proceed, is oppressive conduct on the part of the state, and akin to the 'tail wagging the dog.' The accused says that the conduct of the police in restarting a criminal investigation based solely on the wishes of the complainant is an abdication of the prosecutorial responsibility of the state. [ 53 ] He argues that the 'on again, off again' nature of the prosecution at the instigation of the complainant is such that compelling him to stand trial would violate fundamental principles of justice. [ 54 ] The accused maintains - in advancing both grounds for a stay of proceedings - that it is particularly troubling the alleged main perpetrator, a critical witness as well as a prospective accused, has now died without having been interviewed by police leaving only youths to be prosecuted whose memories of events given their ages at the time of the allegations are naturally faded. [ 55 ] Section 24 (1) of the Charter provides that anyone whose rights, as guaranteed by the Charter, have been infringed or denied, may apply to the court to obtain such a remedy as the court considers appropriate and just in the circumstances.

The accused says that he has been done a significant wrong and that the only way that this wrong can be remedied is by the court granting a stay of proceedings. [ 56 ] Counsel for the accused acknowledges that the accused must show, on a balance of probabilities, that his Charter rights have been infringed or denied. And, as well, that the only appropriate remedy to 'right the wrong,' is to put matters to a close by granting him a stay of proceedings. Counsel also notes that a judicial stay of proceedings based on abuse of process is a rare remedy - to be allowed only in the "clearest of cases."

(ii) The respondent’s position [ 57 ] The Crown says that the accused has not provided a sufficient evidential foundation for the court to conclude that he has suffered any prejudice whatsoever. The Crown says that where an accused seeks to establish that pre-charge delay has infringed his right to a fair trial he must demonstrate on a balance of probabilities that that his ability to make full answer and defence has been corrupted. [ 58 ] The Crown says that the accused must show actual prejudice, and not just the speculative possibility that his fair trial interests have been infringed.

The Crown maintains that the accused must point to specific evidence which, more likely than not, will aid his defence. [ 59 ] The Crown says that SA has not demonstrated any actual prejudice - he is unable to show how a statement taken from DAS, or DAS himself as a witness would have aided him in laying the foundation of any defence. [ 60 ] The Crown argues that the applicant for a stay based on pre-charge delay must convince the Court there is an air of reality about the claim that a particular witnesses' evidence would actually assist in his defence.

And, conversely, if there is no such air of reality, then it cannot be said that the pre-charge delay which caused the loss of the evidence is likely to preclude a fair trial. [ 61 ] The Crown says that the accused has not adduced any evidence to show how DAS would have assisted his case.

At best, the Crown says the evidence which DAS may have provided is purely speculative and that there is no basis to conclude that any evidence from DAS would likely have assisted the accused, or even that he would have provided any statement. [ 62 ] The Crown says that absent bad faith, the law does not require the prosecution to bear the burden of explaining the prosecutorial or investigative process - such as, for example, explaining why no statement was obtained from DAS. [ 63 ] The Crown says that since the accused has been unable to demonstrate any actual prejudice to his case because of the pre-charge delay he is not entitled to a stay of proceedings on the basis that his fair trial interests have been violated. [ 64 ] The Crown says further that there is no evidence of misfeasance or negligence by the state in the decisions by the police not to proceed and then to restart the investigation. [ 65 ] The Crown says that this case is not so unique that it falls within the 'residual category' of cases where prosecutions have been conducted in such an oppressive or vexatious manner so as to offend the community's sense of fair play and decency and undermine the integrity of the court process. [ 66 ] The Crown says that the accused has not demonstrated - at the high standard required - either in relation to his trial fairness interests, nor in his submission that the prosecution conduct was oppressive, that his case is the 'clearest of cases,' where the entry of a judicial stay is appropriate.

III. ANALYSIS A. Pre-Charge Delay: Canadian Charter of Rights and Freedoms , ss., 7 & 11 (d) (

i) The different kinds of pre-charge delay [ 67 ] There are three (3) common situations where delay in bringing a case to court may give rise to a remedy.

[68] First, there may be delay between the time an alleged offence occurs and when it is reported to authorities. This is the first kind ofpre-charge delay; delay reporting to authorities. [69] Second, there may be delay between the time the alleged offence is reported to authorities and when the authorities do somethingabout it by laying a charge. This is the second kind of pre-charge delay; delay laying charges. [70] And third, there may be delay in prosecuting the alleged offence between the time when an Information is sworn and theprospective trial date.

This third type of delay is referred to as post-charge delay. [71] It is this third category of delay, the post-charge situation - getting on with the trial once the charge has been laid - which is mostcommonly litigated. [72]

Section 11 (

b) of the Charter provides that a person charged with an offence has the right to be tried within a reasonable time. Thesection is a recognition that all delay is inherently prejudicial - and not just to the person charged with the offence.

However, it is theaccused who is guaranteed this right to be tried as expeditiously as possible under all the circumstances surrounding the case. [73] The authorities are clear that the period to be scrutinized in this third situation, under s. 11 (b), is the time elapsed from the date ofthe charge, to the date of the trial - i.e., the 'post-charge delay’ period: R v Morin, (SCC), [1992] 1 SCR 771, 71 CCC(3d) 1 [Morin], following R v Kalanji, [1989] 1 S.C.R. 159, (1989) (SCC), 48 CCC (3d) 459 (SCC) [Kalanji]. [74] An accused's Charter rights, under s. 11 (

b) are restricted to the time period after an Information is sworn. Any prior period is not tobe analyzed within the parameters of the 11 (

b) jurisprudence, but instead is to be analyzed within the context of abuse of process,whether under common law, or as a breach of the s. 7 Charter right to fundamental justice {R v Harbin, 2005 NWTSC 77, [2005] NWT JNo 70 (NWT SC), [Harbin] at Crown Tab 6: para 11}. [75] An accused may bring an application to have his charges judicially stayed on the basis that his s. 11 (

b) rights have been violatedbecause of post-charge delay. The applicable principles and factors to considered are well known since they were first delineated in R vAskov, (SCC), [1990] 2 SCR 1199, 59 CCC (3d) 449 [Askov], and then in Morin. [76] The first delay scenario noted, above deals with delay in reporting crime to the authorities. With delays of this kind, the Courtsrecognize the difficulty that many victims have in coming forward to disclose what has happened to them - particularly those who havebeen sexually abused.

The Courts also recognize that the state should not be held accountable for the passage of time when the state hasnot yet received a complaint. [77] Thus - leaving aside the issue of possible criminal mischief by a complainant by concealing a complaint to the detriment of anaccused - the Courts have not seen fit to intervene or stop proceedings based simply on the passage of time between the commission of acrime and the reporting of the crime.

In the absence of a statutory limitation period, the passage of time is not relevant at this point in theprocess, except in assessing the credibility of witnesses whose memory may have faded. [78] The second delay scenario noted, above - namely, delay between the time when the alleged offence is reported to the authorities,and the time that a charge is laid – is the situation to be assessed in this case.

In this scenario, the authorities (invariably the police) knowabout the alleged offence and have a duty to investigate. [79] Both at common law and now within a Charter context the Courts have consistently said that delay in charging and prosecuting anindividual cannot, without more, justify a stay of proceedings as an abuse of process. [80] The common law position was stated by Laskin, C.J., in the case of Rourke v the Queen, [1978] 1 SCR 1021, (SCC) [Rourke], at 1040-41. The Chief Justice said that:

[...] absent any contention that the delay apprehending an accused had some ulterior motive, the Courts are in no position to tell thepolice they did not proceed expeditiously enough with their investigation. The time lapse between the commission of an offence and thelaying of a charge following the apprehension of an accused cannot be monitored by the Courts by fitting investigations into standardmoulds. Witnesses and evidence may disappear in the short run as well as in the long, and the accused too may have to be sought for along or short period of time.

Subject to such controls as are prescribed by the Criminal Code, prosecutions instituted a lengthy periodafter the alleged commission of offence must be left to be dealt with by the Courts on the evidence, which judges are entitled to weighfor cogency as well as credibility. The Court can call for an explanation of any untoward delay in prosecution and may be in a position,accordingly to assess the weight of some of the evidence {see Cr.

Tab: 6, paras, 21,22, for this excerpt from pp. 1040-41 of Rourke}. [81] With the coming of the Canadian Charter of Rights and Freedoms, the Supreme Court dealt with this issue in R v L (WK), (SCC), [1991] 1 SCR 1091, 64 CCC (3d) 321 [L. (W.K.)] {Cr. Tab: 6}. [82] In L. (W.K.), the first of the alleged offences occurred in 1957, the last in 1985. The complaint was made July 1986, and theInformation sworn 1987. At trial the accused brought a sweeping motion under sections 7 and 11 (

d) of the Charter on the basis that thelengthy delay in reporting the offence and in laying charges after it was reported violated the accused rights to fundamental justice and toa fair trial. [83] Stevenson, J., speaking for the Court, affirmed the position of Laskin, J., in Rourke, above.

He added that staying proceedingsbased merely on the passage of time would be the equivalent of imposing a judicially created time limitation, which except in rarecircumstances is not part of Canadian law {Cr Tab 6: L. (W.K.), paras 21, 23, 24}. [84] Much of the L. (W.K.) Judgment is concerned with procedural and evidential flaws at the trial level unrelated to pre-charge delay. [85] However, in dealing with pre-charge delay Stevenson, J., indicated that many of the cases which have considered pre-charge delayhave held that 'mere delay' or 'delay itself' will never result in a finding that there has been a denial of an individual's Charter rights.

Heexplained that this is an imprecise statement of the law, because delay clearly can be the sole "wrong" upon which an individual rests theclaim that his or her rights have been denied. The question, he said, is whether an accused can rely solely on the passage of time,apparent on the face of an Indictment, to establish a violation of s. 7 and/or s. 11 (

d) of the Charter {para 20}. [86] However, in dealing with pre-charge delay, Stevenson, J., indicated that many of the cases which have considered pre-charge delayhave held that 'mere delay' or 'delay itself' will never result in a finding that there has been a denial of an individual's charter rights. Heexplained that this is an imprecise statement of the law, because delay clearly can be the sole "wrong" upon which an individual rests theclaim that his or her rights have been denied. The question, he said, is whether an accused can rely solely on the passage of time,apparent on the face of an Indictment, to establish a violation of s. 7 and/or s. 11 (

d) of the Charter {para 20}. [87] Stevenson, J. said that while sections 7 and 11 (

d) of the Charter guarantee the right to a fair trial, the fairness of the trial is notautomatically undermined by even a lengthy pre-charge delay - indeed, he noted that delay may operate to the advantage of an accused,since Crown witnesses may forget, or disappear {para 25 }. [88] Stevenson, J., with reference to Mills v The Queen, (SCC), [1986] 1 SCR 863, 26 CCC (3d) 481 [Mills], said thatpre-charge delay is relevant under sections 7 and 11 (

d) of the Charter because it is not the length of the delay which matters but ratherthe effect of that delay upon the fairness of the trial. He concluded by saying that Courts cannot assess the fairness of a particular trialwithout considering the particular circumstances of the case. B. The effect of pre-charge delay: Prejudice to fair trial interests - sections 7 & 11 (

d) of the Charter (

i) Case law examples which apply the principles of R v L (WK) [89] In L. (W.K., at para 25 above} Stevenson shifted the focus away from the length of any pre-charge delay and toward the effect of

such a delay on the trial. [ 90 ] Stevenson J., addressed the time period between the commission of the offence and the swearing of the Information.

I suggest, however, he did so only because it was necessary to deal with the motion made by the accused at trial which covered that entire period - rather than simply focusing on pre-charge delay between date of the complaint in 1986, and the swearing of the Information one year later in 1987. [ 91 ] It is useful, in the aftermath of L. (W.K.), to examine some cases which followed. [ 92 ] These cases examined, below, are concerned with pre-charge delay which covers the narrow time period between when the authorities receive a complaint (or when they are become aware of an alleged crime) and the time when an Information is sworn. [ 93 ] In the cases, below, we will see: first, what specific 'fair trial interests' are involved when an accused makes the claim that pre- charge delay has prejudiced his right to a fair trial; and second, what factors come into play when deciding if the fair trial interests of an accused have in fact, been prejudiced. [ 94 ] In the case of R v Koyczan, [2007] NWTJ No 52 (NWT SC) , 2007 CarswellNWT 57 [Koyczan] {Crown Tab 5} a complaint of sexual assault was made in August of 2001, but no charge was laid until almost five years later, in May of 2006. [ 95 ] The complainant-victim, 17 years old at the time of the incident, was in a local park drinking with several young men; when she refused to have sex she was punched in the face by one of the men and knocked unconscious; then, while unconscious she was raped; she awoke hours later without clothes and with injuries to her vaginal area; police took her to hospital where a sex assault protocol was completed and exhibits seized for forensic analysis.

The victim was unable to say who had done what to her after the punch. The police did question some of the men, including the accused, but none admitted the rape or implicated anyone else. [ 96 ] The police investigation then lay dormant for some time. The sex assault kit exhibits were not sent out to the laboratory for analysis until November of 2005 (over 4 years after they taken on the night of the rape). Eventually, the forensic analysis came back with a positive result identifying the accused as the perpetrator.

He was charged in May of 2006. [ 97 ] In relation, however, to one of the exhibits (the victim's outer pants) the police apparently did not follow proper 'drying procedures.' The pants were kept in a locker for so long before being sent out that no DNA analysis could be conducted. [ 98 ] The accused applied, based on the pre-charge delay of almost 5 years from the time of the incident (which was also the night the victim complained) until the time he was charged, to have the proceedings stayed as an abuse of process. He alleged an interference with his rights under s. 7 of the Charter .

He maintained that the delay was a result of police negligence. [ 99 ] In addition, the accused maintained that but for the improper delay in the handling of the victim's pants, evidence may have been obtained indicating the presence of DNA from another male who may have assaulted the victim. [ 100 ] In response, the Crown presented evidence from police witnesses explaining what transpired - and what didn't - between August of 2001 and November of 2005 (when the exhibits were sent out for analysis).

This evidence was a detailed account and chronology of what police resources were available to complete the investigation. [ 101 ] In dismissing the application, Richard, J. concluded that the main reason the investigation was dormant for substantial periods of time was the inadequate level of police personnel at the Yellowknife RCMP detachment available to deal with a high caseload. He found no ulterior motive, misconduct, or even negligence on the part of the police in failing to move investigation forward.

[102] In addition, the Court found that the accused had not established that he had been prejudiced by the pre-charge delay – there wasno basis for saying that the delay prevented him from making a full answer and defence. [103] In dealing with the proposition that relevant evidence may have been obtained but for the improper storage of the victim's pantsand the resultant mould which prevented DNA analysis, Richard J., said such an assertion was speculation, not itself evidence of actualprejudice [104] The Court found that there was no air of reality to the suggestion that there may have been evidence on the seized pants whichwould assist the accused in putting forth a full answer and defence. [105] At most, the Court noted, this was an argument that might be open to the accused, during his trial, as the trial evidence unfolded. [106] The case, R v Harbin, 2005 NWTSC 77, [2005] NWT No 70 [Harbin] {Crown tab: 3} illustrates how the abuse of process criteriaare applied in a situation where there has been pre-trial delay. [107] The accused had been employed by an auto service shop from August of 2003 until March of 2004.

In April the owner of the shopcomplained to police that the accused had written unauthorized cheques. [108] The owner told police that the accused had paid back some of the money but that he also wanted to pursue criminal charges. InJuly of 2004 the investigating officer interviewed the accused and formed the belief that there were grounds for a charge.

The officerissued court process - an Undertaking along with a Promise to Appear - to the accused returnable for a first court appearance in August of2004. [109] Instead of confirming the Promise to Appear and swearing an Information, however, the officer continued to investigate the matterfurther and sought a legal opinion from the Crown's office as to whether the case was more of a civil matter than a criminal one. Theofficer also told the accused that the matter was still under investigation. [110] Eventually an Information charging the accused was sworn in February 2005.

Before any trial date had been set, however, theaccused brought an application to have the proceedings stayed on two grounds: first, that the delay in bringing her to trial violated herright to be tried within a reasonable time as guaranteed by s. 11 (

b) of the Charter; and second, that the proceedings were an abusebecause the criminal court process was being used to collect a civil debt. [111] The accused argued that from July of 2004 - when she was first served with court process - she had suffered from considerablestress and anxiety due to the specter of the criminal proceedings, and in addition was unable to find work. [112] At the hearing of her application, the accused, Harbin, abandoned the assertion that the criminal proceedings were simply anattempt to collect a civil debt, and argued only for a stay based on the delay in bringing the case to trial. [113] Vertes, J., cited Morin and Kalanji and said that the only time period to be scrutinized in examining whether any 11 (

b) rights hadbeen violated is the post-charge period - the time between when the charge is laid and the trial date (or proposed trial date). He foundthat there was nothing presumptively unreasonable about the post-charge period in the case. [114] Vertes, J., did, however, go on to consider pre-charge delay: whether the length of time the accused was under the threat ofcriminal prosecution (from July of 2004) until the charge was laid (in February of 2005) amounted to an abuse of process. [115] Vertes, J., referenced the case of R v Cleary, [2002] NWT J No 19 (SC), 2002 NWTSC 19 [Cleary], a decision ofSchuler, J., with respect to the operative principles respecting pre-charge delay.

[ 116 ] In Cleary , the offences, fraud and theft, allegedly occurred between 1990 and 1996. In 1997 audits were conducted by the accused's employer. The matter was handed over to the police in August of 1997 and an investigation launched in September of 1997. However, due to changes in police personnel and other priorities the investigation continued until charges were eventually laid in October of 2000. [ 117 ] The accused in Cleary brought an application for a stay of proceedings arguing unjustifiable delay in the pre-charge phase of the investigation.

Schuler, J., concluded that the delay in laying charges was attributable to insufficient police resources. Schuler J., noted that there was no suggestion of any improper motive on the part of the police in dragging out the investigation - and noted as well that it is not the job of the courts to supervise police investigation procedures. [ 118 ] The Cleary case turned, however, on the narrow issue of 'irremediable prejudice' to the accused's fair trial interest.

The accused was unable to show that the pre-charge delay in any way affected his ability to make full answer and defence to the charges. [ 119 ] Similarly, Vertes J., ( in Harbin ) also found no evidence that the accused's ability to make full answer and defence had been corrupted.

He said that there was no evidence of any "wrong" that would have a continuing effect if a stay were not granted. [ 120 ] In addition, Vertes J., found no evidence of police misconduct or negligence - indeed, far from it, as the officer was careful to ascertain that the complaint was not just a civil matter before proceeding. [ 121 ] In the Ontario Case of R v Wilson, 2010 ONSC 1057 , [2010] OJ No 730 [JNW] {Crown tab: 4} the accused was charged with various sexual offences that allegedly occurred in 1966 and 1967; the complainants were his sisters-in-law and were 12 and 14 at the time; they first disclosed the incidents to police in 2008 which is when the charges were laid; by this time the accused was in his 70s; he brought a Charter motion under s. 7 to have the charges stayed as an abuse of process on the basis of 'pre-charge' delay; the accused argued that the passage of time, his failing health, the complainants' failing memories, and the death of potential defence witnesses made pursing the charges an abuse of process. [ 122 ] The Court, citing L.(W.K.) , noted the only relevant passage of time was the period between the complaint and laying of charges - that the time period prior to the complaint was not to be taken into account, and in any event did not involve an aspect of delay attributable to the state. [ 123 ] The Court found that the accused - who had testified at the hearing of his application - had no cognitive defects despite his claim of failing health. [ 124 ] Respecting the death of potential witnesses the Court found as follows: The only prospective witness of any value would have been the wife (now deceased) of the accused; but aside from evidence of the accused's general good character the only evidence which the wife could have provided was entirely speculative. [ 125 ] The Court added that evidence of good character is often of little value in cases of alleged child abuse because of the secretive nature of the offence. [ 126 ] The Court noted that the application for a stay was really grounded upon an attack of the complainants' credibility and reasoning for their delay in reporting.

The accused had relied upon discrepancies in the evidence of the complainants from their preliminary inquiry testimony to suggest that they had colluded in delaying reporting, and that they had a strategy not to complain earlier. [ 127 ] The Court said that the accused was essentially seeking a dismissal on the basis that the complainants were not credible witnesses because the alleged incidents had happened a long time ago. [ 128 ] The Court was clear in pointing out - with reference to the well know case of R v DD, 2000 SCC 43 , (2001) 148 CCC (3d) 41 [DD] from the Supreme Court of Canada - that any delay in reporting is a simply an issue for the trial; and that trial judges recognize and are able to instruct juries that in assessing the credibility of a complainant there are many good reasons why disclosure will often come well after the event.

[129] The Court did not, however, shut the door entirely upon the application for a stay of proceedings. It was left for the accused toshow, at his trial as the evidence unfolded, that the pre-charge delay had infringed his ability to make full answer and defence, separateand apart from the simple credibility of the complainants. [130] In the Manitoba case of R v Fones, 2009 MBQB 66 , [2009] MJ No 70 (Man QB), 191 C.R.R. (2d) 168 [Fones] {Crowntab: 2} the Court dealt extensively with the question of the effect of pre-trial delay and the requirement that an applicant seeking a staypursuant to sections 7 and 11 (

d) of the Charter must show that his fair trial interests have been prejudiced. [131] The accused was charged with sexual offences alleged to have been committed in the 1970. The complainants were first made in1997. The accused was not arrested and charge, however, until 2006.

There had been a series of investigative steps taken, however, bypolice and prosecutors between 1999 and 2006. [132] The accused alleged that he suffered irreparable prejudice to his ability to make full answer and defence as a result of the lengthyperiod of inaction in the matter at the hands of police who, he said, had mishandled the investigation to the point of negligence. [133] The prejudice upon which the accused based his claim related to the following: first, the death of 2 potential witnesses; second,that he had lost contact with a 3rd potential witness; third, that one of the complainants may have had her memory altered from years ofcounselling; and fourth, that police had apparently destroyed a file which showed that another person had been convicted of assaultingone of the complainants. [134] The Court held that the accused had not effectively demonstrated any prejudice to his fair trial interests - i.e., to his ability to makefull answer and defence. [135] The Court noted that the police had encountered a number of logistical and geographical difficulties in collecting evidence in thecase. [136] The Court said, in following L. (W.K.), that there is nothing inherently unfair in proceeding with the charges simply because theywere investigated at an earlier date and no charges were laid.

The Court stressed that it is the effect of the delay and not its length that isrelevant. [137] Regarding the deceased witnesses, the Court said that it was not possible to determine whether loss of opportunity to interviewthem arose from any delay in laying charges as their specific dates of death were unknown.

In addition, there was no evidence that thepotential witnesses had any information related to the case. [138] Further, the Court stated that it was premature to conclude that the witness which the accused could not locate would not belocated, given that the police were also attempting to do so. [139] The Court noted that the missing police file had been located.

And since the complainant who had undergone counselling wasavailable to testify at trial it was premature to make decisions regarding an abuse of process related to her evidence. (ii) The timing of an application for a stay based on prejudice caused by pre-charge delay [140] These cases - Koyczan, Harbin, Cleary, Fones, and JNW - all clearly illustrate the need for an applicant seeking a stay based onpre-charge delay to demonstrate on a balance of probabilities that their trial fairness interests have been infringed - that the delay hasimpeded their ability to make a full answer and defence. [141] However, once an applicant has established or demonstrated that pre-charge delay has in fact infringed or corrupted his ability to

make full answer and defence (and that the pre-charge delay is attributable to the authorities) a stay must be granted regardless ofwhether the police conduct is an attempt to interfere with the fairness of the trial. [142] Some of the cases, above, found no misfeasance or negligence on the part of police. It is important to note, however, in determiningwhether the authorities have violated the fair trial interest of an accused contrary to sections 7 and 11 (

d) of the Charter it is notnecessary that their conduct be egregious or negligent. [143] The Supreme Court has made it quite clear that inferences or conclusions about the propriety of the Crown's conduct or intentionare not necessarily relevant to whether or not fair trial rights have been infringed: R v O'Connor, (SCC), [1995] 4 SCR411, 103 CCC (3d) 1, at para 74 [O’Conner] (Applicant: Tab 3) [144] The issue in O'Connor was non-disclosure.

The accused said that the Crown had failed to properly disclose information about thecomplainants in the case to the defence. [145] The Court in O'Connor said that the remedy of a stay of proceedings under s. 24 (1) would only be granted if the prejudice to theaccused's fair trial interests was irreparable - if the trial was so far along that the damage could not be fixed with by the Court making adisclosure order. [146] The emphasis on police conduct, or conduct of the prosecuting authorities amounting to misfeasance or negligence is to beconsidered in a more narrow context when the Court is faced with the issue of whether any pre-trial delay - separate and apart from trialfairness - has undermined the integrity or fundamental justice of the system as a whole. [147] For example in both JNW and Koyczan, despite the absence of police misconduct, ulterior motive, or even negligence, the doorwas left open allowing the accused, as the evidence unfolded at his trial, another opportunity to showing that his ability to make fullanswer and defence has been infringed - essentially, a second chance to convince the court that a stay is the appropriate remedy. [148] Indeed, the Supreme Court of Canada has cautioned that where the application for a stay is based on trial fairness interests - unlessthe appropriateness of a stay is manifest at the outset of the proceedings - the trial judge should reserve on such motions until after theevidence has been heard.

By doing so a judge can more effectively assess the degree prejudice [R v La, (SCC), [1997] 2SCR 680, 116 CCC (3d) 97[La]){found in JNW, paras, 36,37: CR: Tab 4}]. (iii) Pre-charge delay & the issue of prejudice in SA's case [149] In our case the accused, SA, takes the position that the delay between the stop in the investigation in February of 2006, and therestart at the request of the complainant in January 2009 (with no charge laid until April 2009) has been prejudicial to his fair trialinterests. [150] This submission is grounded in the proposition that no police statement was obtained from DAS - essentially, that SA has beendenied relevant evidence by this stop and start pre-charge delay.

B.i.1 The fact that no statement was obtained from DAS [151] I will deal first with the fact that no police statement was obtained from DAS. [152] The police, of course, have a duty to investigate crime. And we do know that no statement was obtained from DAS. We do notknow whether or not the police made any attempt to interview him. But the failure of the police to interview DAS - if such was the case,and apparently it was - is, in my view, and for a number of reasons, a red herring in this case.

[ 153 ] First, there would be no reason for the police to interview DAS after LA requested that the investigation stop and the police made the decision to close the file. [ 154 ] Second, the fact that there may have been no attempt to get a statement from DAS earlier - after LA made her complaint but before she asked to shut down the investigation - between December 2005 and February 2006 is something which is not the business of this Court. [ 155 ] The police are free to conduct investigations without a judge monitoring, after the fact, which suspects and witnesses should have been questioned, and when. [ 156 ] And while it is true, as the Crown says, that there was no obligation on the part of police to interview DAS at all, I pose the rhetorical question: Does it almost go without saying that if LA had not asked to stop the case then the police would, at some point, have put their mind to getting a statement from DAS qua suspect?

I think, obviously, they would have done so. It would also be reasonable for the police to expect that someone suffering from a terminal illness would, if they gave a statement, be more likely to tell the truth whatever that truth might be. But there is no way of knowing what any statement from DAS would have contained. [ 157 ] In turn, however, as the Crown Counsel suggests, there is no obligation on a suspect to provide a statement all.

So, even if the police had attempted to get a statement from DAS, it is impossible to say whether or not he would have provided one. [ 158 ] I leave aside the question, raised by Crown Counsel, that DAS, because of his illness, might not have lived to testify (or be prosecuted) anyway.

Such a prospect is not material to the issue that I need to decide - namely, whether the accused has shown prejudice to his fair trial interests because DAS's evidence has been lost through pre-charge delay. [ 159 ] Crown Counsel had suggested, in argument, that the accused, SA, could himself (or, through an agent) somehow have preserved evidence from DAS by interviewing. Leaving aside the dubious admissibility of any such 'evidence,' I agree with Counsel for SA that such a position is not tenable. [ 160 ] The complainant, LA, made her disclosure or complaint to the police on December 7th, 2005.

The accused, SA, was interviewed by the police for the first time on February 16, 2006. [ 161 ] Then, three (3) days later, on February 19, 2006 LA contacted police with a view to shutting the investigation down - which they did a week later, on February 26, 2006. Presumably SA knew that LA had asked police to put a stop to things in 2006. [ 162 ] But SA was never charged with any crime until three (3) years later, in 2009. There would be no need for SA to retain a lawyer, or to go looking for witnesses, unless (and until) he had been charged with a crime.

B.iii.2 SA's fair trial interests & pre-charge delay [ 163 ] SA says that his right to a fair trial has been infringed because his ability to conduct his defence - to make a full answer and defence - has been corrupted. [ 164 ] With respect, I must agree with the contrary view put forth by the Crown, namely, that the accused has shown no actual prejudice as is required to found an interference with trial fairness – or the ability of the accused to properly defend himself - as basis for a judicial stay of proceedings. [ 165 ] Counsel for the accused, in argument, characterized SA as a victim himself - as a child at the time of the events under the coercive influence of the main perpetrator, LA's father, DAS.

[ 166 ] However, and at best, it is hopefully speculative that DAS might have provided - even as he lay dying from a terminal illness - evidence to support or substantiate SA's position had he been interviewed by the police before they stopped the investigation. [ 167 ] Thus, the accused has failed to demonstrate that there is an air of reality to the claim that prospective evidence from DAS would assist him in his defence. [ 168 ] DAS may have been willing and able to provide evidence useful to the accused. Equally, he may not have been.

Indeed, he might well have provided evidence detrimental to SA's defence. [ 169 ] The point is that no one can say either way - which, as noted earlier, is a reason why the fact that the police apparently didn't interview or get a statement from DAS is a red herring in relation to SA's fair trial interests. [ 170 ] I find that the accused, SA, has not laid the foundation, within this application, to show that his right to a fair trial has been prejudiced by pre-charge delay. [ 171 ] The most that can be said - since DAS is now dead - is that SA has been deprived of the opportunity to have DAS co-operate, if he were willing, or to compel him to testify as a hostile witness in an effort to substantiate or corroborate a possible defence. [ 172 ] Counsel for SA concedes, for the limited purpose of this application, that the Crown case taken at best provides support for LA's allegations against SA within (but not throughout) the relevant time period. [ 173 ] Counsel's quarrel with the Crown centers around the characterization of her client as a perpetrator, and only a perpetrator. [ 174 ] Counsel notes the various statements provided by her client - which apparently range from denial, to witnessing the events, to being coerced - which portray SA as a victim of DAS.

Accordingly, one can appreciate SA's concern both that DAS was never interviewed and is now deceased. [ 175 ] The characterization by defence Counsel that SA was himself a victim - that there had been elements of coercion by DAS respecting any illicit involvement on the part of SA towards LA - raises the specter that substantive defences of duress and compulsion will be put forth at trial. [ 176 ] Defences of this nature are often difficult to substantiate, to be sure.

And even more so at this stage within an application to stay the proceedings - to show some evidence that any such defence might have traction in terms of an evidential air of reality at trial. [ 177 ] I am not, however, critical of the fact that SA has not, by way of affidavit or oral evidence, pleaded the specifics of any claim to suggest that he was coerced or compelled by DAS to violate the victim. [ 178 ] It would not have assisted SA's case had he done so.

The reason for this is that I would not have been able to say whether there was, or might be, an air of reality to any such defence based solely on such an assertion by SA. [ 179 ] And, while I appreciate that duress and coercion on the part of DAS towards SA, might well have taken place - if it did take place - "away" from the victim, nonetheless, the question of whether an air of reality existed for such defences is something that could only be determined within the full context of a trial where the victim's evidence as well (in whatever form) was before the Court. [ 180 ] I would not have been prepared to turn this hearing into, essentially, a mini-trial.

[181] It may be possible, as was the case in many of the authorities examined, above, for SA to make the argument again at trial -depending upon how the evidence unfolds - that pre-charge delay has impaired his ability to make full answer and defence. The door isopen for SA to attempt to establish such prejudice at trial. C. Police conduct & the 'residual power' of a Court to stay proceedings [182] Canadian Courts have power to control an abuse of its own processes.

This inherent jurisdiction of a superior court to stayproceedings was recognized in Canada as early as 1886 {R v Jewitt, (SCC), [1985] 2 S.C.R. 128, (1985) 21 CCC (3d) 7(SCC) [Jewitt] considering Re Sproule (1886) 12 SCR, 1886 CanLII 51 (S.C.C.) [Sproule]}. [183] In Jewitt, the Supreme Court endorsed the common law doctrine of abuse of process within the rubric of preserving judicialintegrity.

The doctrine is aimed at protecting the judicial system from abuse, and ensuring that the operation of the justice systemcomports with community values. [184] The Court, in Jewitt, said that there is a 'residual' discretion in a trial court to stay proceedings where compelling an accused tostand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency and toprevent the abuse of a court's process through oppressive or vexatious proceedings {p. 14}. [185] After the advent of the Charter, the focus of the abuse of process doctrine turned to s. 7 and the possibility of a remedy of a stayunder s. 24 (1), where the fair trial interests of the accused have been irremediably harmed. [186] The Supreme Court also noted, in R v O'Connor, (SCC), [1995] 4 S.C.R. 411, (1995) 103 CCC (3d) 1 (SCC),{App: Tab 3} that there is no real utility in distinguishing between stays available under s. 24 (1) of the Charter and those sought underthe common law abuse of process doctrine. [187] The O'Connor Court held that a stay may be an appropriate response where the continuation of the proceedings may result inirreparable harm to the fair trial interests of the accused, or where the proceedings would irreparably damage judicial integrity {paras, 70-71}. [188] The Court in O'Connor added an important proviso that the remedy of a stay would be granted only in the "clearest of cases" -where prejudice to the right to make full answer and defence cannot be remedied, or where irreparable prejudice would be caused to theintegrity of the judicial system if the prosecution were continued. [189] In R v Regan, 2002 SCC 12 , [2002] 1 SCR 297, 161 CCC (3d) 97 [Regan], the Court affirmed O'Connor that the residualdiscretion of a court to stay proceedings for abuse of process at common law has now been brought under the umbrella of s. 7 of theCharter.

Any analysis of whether the judicial process has been abused will be concerned not only with the protection of individual rights,but also with proceedings that may be unfair to the point of violating the principles of fundamental justice as guaranteed by s. 7. [190] The Court, in Regan, confirmed the position previously taken in O'Connor that when dealing with an abuse which falls within theresidual category a stay of proceedings is only appropriate in 'exceptional' and 'relatively very rare' cases where the past misconduct bythe authorities is “so egregious that the mere fact of going forward in the light of it would be offensive.” The mere fact that the statetreated someone shabbily in the past is not enough to warrant a stay {Regan, para 55}. [191] The remedy does not reward the accused nor is it concerned with the merits of the case.

It focuses on maintaining publicconfidence in the judicial process, and the integrity of the court. {R v Conway, (SCC), [1989]1 SCR 1659, at 1667, 49CCC (3d) 289 [Conway]} [192] The Court said, however, in O'Connor as well as in Regan that when considering a stay based on egregious conduct on the part ofthe state a Court must take into account society's interest in having cases decided on the merits.

[193] In this regard, Lebel, J., in Regan, referenced the earlier decision, in Canada (Minister of Citizenship and Immigration) v Tobiass, (SCC), [1997] 3 SCR 391, 118 CCC (3d) 443 [Tobiass], where the Court noted there will be many cases whereuncertainty persists about whether the abuse is sufficient to warrant the drastic remedy of a stay. [194] Lebel, J., said this is where a traditional balancing of interests is done and that 'while an egregious act of misconduct could neverbe overtaken by some passing public concern, a compelling public interest in having a full hearing could tip the scales in favour ofproceeding" {Regan, para 57}. [195] Ultimately, this balancing act is the exercise of a value judgment on the part of an individual judge. [196] Perhaps some guidance in exercising such a value judgment may be gained from the analogous situation where a trial judge isasked to exclude evidence under s. 24 (2) of the Charter.

The trial judge will consider the conduct of the state in deciding if admitting theevidence would "bring the administration of justice into disrepute.” [197] The Supreme Court has said, in R v Mack (1998), (SCC), [1988] 2 S.C.R. 903, 44 C.C.C. (3d) 513 (SCC) [Mack],that a trial judge should consider the question from the perspective of the reasonable person 'dispassionate and fully apprised of all thecircumstances:' This reasonable person would understand that the issue is 'maintaining respect for the values which, over the long term,hold the community together.' And that 'one of those very fundamental values is the preservation of the purity of the administration ofjustice" {pp. 564-565}. [198] The Supreme Court has been clear in setting out the criteria for granting a stay of proceedings based on abuse of process. [199] An understanding of those criteria is one thing, and not difficult.

The application of the criteria, quite another, as we can see fromtwo sample cases, below. [200] The Crown relies upon R v National Steel Car Ltd. 2003, [2003] OJ (CA), (ON CA), 174 CCC (3d) 91[National Steel] {Cr: Tab 1}. The case is a good starting point for any analysis involving abuse of process based on pre-charge delay. [201] National Steel involved a prosecution under Ontario's Occupational Health and Safety Act. [202] The corporate defendant sought a judicial stay based both on unreasonable delay under s. 11 (

b) as well as abuse of process. [203] But we need only consider the time period between the complaint and the charge. The investigating agency completed aninvestigation some 8 days after the last alleged incidents of unsafe working conditions but no Information was sworn until 10 monthslater. [204] The lower court in National Steel noted the 1 year time limit for prosecution under the legislation and said that once theinvestigation is complete then any charges should proceed as expeditiously as possible.

The lower court found that in the absence of anyexplanation from the Crown for the pre-charge delay, the laying of an Information at the end of this 10 month period constituted anabuse of process. [205] The Court of Appeal cited L. (W.K), and said that while pre-charge delay may be a consideration on an abuse of process motionthe mere existence of delay cannot justify a granting of a stay of proceedings.

The Court went on to say went that in the absence of anyevidence of bad faith or ulterior motive, there was no basis for placing a burden on the Crown to explain the investigative andprosecutorial processes. [206] The Court of Appeal noted that the charges were laid within the 1 year limitation period provided and in placing such a burden onthe Crown, the lower court had, in effect, imposed a judicially created limitation period which it was not entitled to do {para 12}.

[207] While National Steel is a good starting point to see how a Court dealt with pre-charge delay it is not particularly helpful whenapplied to the case of SA, before me. [208] In National Steel the delay from complaint to charge was unexplained. And the Court said that absent evidence of misfeasance thestate was not required to explain the delay. In SA's case, the delay is explained - we know why the delay occurred. The police backed offafter the complainant asked them to.

The question which needs to be answered is whether under all the circumstances the police, inacceding to the complainant's wishes by restarting the case, are now abusing the process of the Court. [209] It is the conduct of the police as agents of the state which is under scrutiny in SA's case. [210] The case of Tabor, from Newfoundland, is more instructive. [211] R v Tabor, [1993] NJ No. 254 (Nfld.

C.A.), (1994), (NL CA), 84 CCC (3d) 449 [Tabor], is a case where thefactual scenario parallels somewhat SA's case and which deals with the residual power of a Court to grant a stay of proceedings incircumstances where allowing the prosecution to proceed would be fundamentally unjust as vexatious and oppressive. [212] The complainant, as well as the accused, in Tabor were both RCMP officers. The accused held a higher rank than the complainant.The accused was charged with 1 count of sexual assault and 1 count of break and enter and commit the offence of sexual assault.

Theoffences were alleged to have occurred in May of 1988 but the charges were not laid until more than 3 years later, in August of 1991. [213] In May of 1988 both the complainant and the accused were temporarily residing in police barracks on the outskirts of St. John's.There was a social function in the barrack mess hall. The accused and the complainant were dancing and the accused touched thecomplainant in a sexually inappropriate way.

Then, shortly afterward, he followed her to her room where he pushed his way past herdoor, despite her protestations that he go away, and again attempted to make further advances. The complainant broke away from theaccused and swung a shoe at him, at which point he left. [214] The next day, the complainant made a complaint about the incident to her superior officers. She made it quite clear, however, thatshe wanted no criminal investigation into the matter. [215] The accused was in turn summoned to appear before his own superior officers to account for his actions.

He was told that nocriminal proceedings were contemplated. It was also strongly suggested to the accused, by his superiors, that he apologize to thecomplainant - which he did, by phone. [216] Almost 3 years later, in April of 1991, the complainant received a call from another female RCMP constable who was apparentlyaware of the complainant's earlier problems with the accused.

This particular female constable had made a sexual assault complaintagainst another member of the force, which the accused had been assigned to investigate. [217] She told the complainant that she was dissatisfied with the investigation into her complaint. She was concerned that the accusedwas focusing his attention on investigating her for criminal mischief instead of investigating her complaint. [218] The female constable asked the complainant if she would be willing to speak to somebody in authority about the events of May1988.

The complainant agreed to do so and shortly afterwards was contacted by another superior officer. After her conversation with thissuperior officer a criminal investigation commenced. A few months later, in August 1991, an Information was sworn charging theaccused. [219] The accused brought an application to have the charges stayed, as an abuse of process. Both the accused and the complainant gaveevidence at the hearing of the application.

[ 220 ] The complainant testified that her reason for making a complaint back in May of 1988 was that she wanted the incident "documented" in RCMP files for the sake of her own career. She was concerned that the accused have nothing to do with her career path. She wanted the incident documented to protect her from any gossip within the force. [ 221 ] The complainant confirmed that her decision in May of 1988, that she wanted no criminal investigation, was her decision alone and that she conveyed it to her superiors at the time.

The complainant said that she had never asked for any apology and was not interested in one. [ 222 ] But she did tell the accused when he had called that, "it was not my intention to pursue anything." The accused testified that he was told by his own superior officer in May of 1988 that if he apologized then that would be the end of the matter. [ 223 ] The complainant said that she was disturbed, when, in April of 1991, while speaking with investigators at the request of her colleague (the other female officer) she discovered that apparently no written record had been kept of her 1988 complaint.

It had not been documented, as she had hoped. [ 224 ] The staff sergeant who was reviewing the other female officer's complaint then asked the complainant whether she wished to reconsider her earlier decision, in 1988, not to request a criminal investigation.

It was then, she said - but without being influenced either way by the staff sergeant involved - that she told him her earlier decision was a mistake and that she now wanted a criminal investigation to proceed. [ 225 ] The accused's application for a stay was based on the Court exercising its residual power - namely, to stay the proceedings on the basis that compelling the accused to stand trial would violate the fundamental principles of justice which underline the community's sense of fair play and decency and to prevent the abuse of a court's process through oppressive or vexatious proceedings. [ 226 ] The trial judge accepted that the 'residual power' of the Court was the basis upon which the accused pleaded his case.

The trial judge also granted the accused a stay of proceedings. [ 227 ] However, in granting the stay the trial judge did so, not based on the residual power of the court, but rather on a 'trial fairness' basis.

He felt that the accused's fair trial interests had been corrupted. [ 228 ] The trial judge found that the apology which the accused was forced to make would amount to self-incriminating evidence which would prevent a fair trial, and also that the memories of any witnesses would have faded because of the three (3) delay in proceeding with any charges. [ 229 ] The Crown appealed. [ 230 ] The majority of the Court of Appeal overturned the trial judge, vacated the stay of proceedings, and sent the case back for trial. The majority said that the apology and the fading memory of any witnesses were trial issues.

The Court said that the apology, for example, could be excluded at trial, and that trial courts are quite capable of assessing credibility where a witness may have difficulty recalling events. [ 231 ] The majority returned to the basis upon which the accused had pleaded for the stay and said that the real issue is whether putting the respondent on trial is unfair {para 57, NJ}. [ 232 ] The majority noted delay by itself does not constitute an abuse of process; that there must be some element that justifies the conclusion that by putting the accused on trial three (3) years after the alleged events upon which the charges are based would violate "those fundamental principles of justice which underlie the community's sense of fair play and decency," or "would be so oppressive or vexatious as to amount to an abuse of the court's process" {para 48, NJ}.

[ 233 ] The majority was of the view that "there is no question of oppression or vexation here. It is a question of fair play and decency" {para 49, NJ}. [ 234 ] Goodridge C.J.N., writing for the majority, concluded that delay resulting from consideration of the wishes of the complainant does not make this a situation where the affront to fair play and decency is disproportionate to the societal interest in the prosecution of criminal charges. [ 235 ] Goodrigde C.J.N was of the view that absent ulterior motive, delay of itself does not warrant the ultimate remedy of a stay of prosecution.

He said that since the trial judge had found the Crown acted in good faith this was not the clearest of cases where a stay should be entered. [ 236 ] Although the majority of the Court of Appeal set aside the trial judge's stay, the Chief Justice nonetheless made some remarkable observations, in obiter, concerning both the delay by police in bringing charges as well as the trial judge's characterization of the complainant's 'off and on' approach to a criminal investigation. Goodridge C.J.N., said: In allowing the appeal, I would not wish to be condoning what happened here.

The complainant and the police should have taken a more positive position in 1988. A person suspected by the police of an offence should not be held in suspense for an indefinite period, only to be prosecuted at a later date at the whim of the complainant. If there was any suggestion that the actions of the complainant were other than, in the words of the trial judge, "understandable and acceptable," the result may very well have been different. As it is, there is no evidence of an agreement by the complainant not to complain nor by the police not to prosecute.

Prejudice to the respondent (accused) - at least prejudice of a nature that cannot be dealt with through other remedies - has not been established by him.

There is pre-information delay and nothing more {para 58, NJ}. [ 237 ] In dissent, Gushue J.A., would have upheld the stay of proceedings. [ 238 ] Gushue J.A., was of the view that it would be fundamentally unjust where all relevant information was before the authorities at the appropriate time and in the face of an informed decision by the victim herself, to permit charges proceed three (3) years after the initial incident and complaint {para 89, NJ}. [ 239 ] Gushue, J.A., was also troubled by the effect that the apology might have in relation to the accused's ability to receive a fair trial.

And, although Gushue J.A., made it clear that the apology was not the basis upon which he would uphold the stay of proceedings, he did note there was no guarantee that it would be excluded at a trial. [ 240 ] Gushue, J.A., referenced the Supreme Court of Canada's often quoted remark from R v Jewitt , above, where the Court said that there will be situations "[…] while on the merits the accused may not deserve an acquittal, the Crown by its abuse of process is disentitled to a conviction" { para 79, NJ}. [ 241 ] Gushue, J.A. was of the view that this was the situation in the case before him - namely, the clearest of cases where the Crown was not entitled to a conviction {para 80, NN}. [ 242 ] Gushue, J.A. said the situation in 1988 was that the complainant and the respondent were dealt with internally within the RCMP, and it seemed at the time to everyone's satisfaction - the complainant, the accused, and the police service.

No further disciplinary action was to be taken against the accused and certainly no criminal charges were contemplated. [ 243 ] Specifically, Gushue, J.A., made mention that the complainant's decision, in 1988, that she wanted no criminal investigation was conveyed to the accused and was something upon which he relied. [ 244 ] Gushue, J.A., also said that all persons involved, being members of the RCMP, were completely aware of circumstances which could give rise to criminal proceedings {para 84, NJ}. [ 245 ] Gushue, J.A., said, that the parties involved apparently did not view the matter as being serious enough, in 1988, to merit criminal

investigation.

He said that if the case was sufficiently serious to be dealt with as a criminal matter in 1988 then if should have proceeded at that time. [ 246 ] Respecting the complainant's decision, in 1991, to request a criminal investigation, Gushue, J.A., said: One cannot help but feel that this decision may also have been influenced by her discovery at that time that her 1988 complaint had apparently not been documented. [This]... is not a criticism of [the complainant], but the simple question which now arises is whether, in all the circumstances, the charges should be permitted to proceed {para 88, NJ}. [ 247 ] In conclusion, Gushue, J.A. said that it would be oppressive and vexatious to allow the prosecution to proceed when previously all parties involved considered it closed. [ 248 ] The Tabor case is not, of course, binding upon this Court.

I say this because, with respect, I prefer the reasoning of Gushue, J., to that of the majority. [ 249 ] It is true, as the majority say, that no contract or agreement existed between any of the parties not to prosecute the case. The complainant was, however, entitled to expect that her employer would properly record the incident in 1988 - this is what police normally do. [ 250 ] The police readily accepted the complainant's decision not to proceed criminally. They exercised this discretion wearing the hat of an employer.

Three (3) years later, and after they had let the complainant down by failing to documenting her case, they readily accepted her decision to proceed criminally - this time wearing the hat of a prosecutor. [ 251 ] The minority view of in Tabor , however - as much as I agree with it - is clearly distinguishable from the situation before me in the case of SA. [ 252 ] Counsel for SA does not take issue with the initial police decision, in February of 2006, to stop the investigation. [ 253 ] Nonetheless, I feel it needs mention in order to give full contextual flavour to the restart of the investigation. [ 254 ] The police, as agents of the Crown, made a decision which allowed the alleged victim of historical sexual abuse allegedly committed by members of her own family to have input into the decision to prosecute.

She told them that she wanted to stop any charges against her family because her father was dying. [ 255 ] The police responded to this plea for compassion on her part. [ 256 ] The police and Crown are often criticized for not allowing victims to have a say into the decision about whether to charge someone after they make a complaint - most particularly in cases of domestic spousal abuse. [ 257 ] The police decision to accede to the LA's initial request can be viewed as both sensitive and sensible. [ 258 ] Sensitive because it recognized the complainant's dilemma: the courage that it took her to make a complaint so many years after the event, and now, to see the main alleged perpetrator, her father, dying. [ 259 ] Sensible decision because what reasonable constable would - in light of the complaint's stated reason for asking to stop the case - dig through the file with a view to encouraging her to reconsider?

[ 260 ] This takes us to the decision to restart the investigation. [ 261 ] It is true, as Counsel for SA says, that complainant cannot use the criminal justice process for personal retribution - that it is the qualified and dispassionate agents of the state who are in charge of prosecutions. [ 262 ] The question, however, is this: Did the authorities give away their investigative and prosecutorial functions by abandoning the decision-making to the complainant, or did they simply take the circumstances of the alleged victim - like that of any victim - into account in exercising their discretion ultimately to prosecute?

That possibility is equally, and potentially more likely on the evidence presented. [ 263 ] It is important to note as well that the focus in answering this question is not upon the conduct of the complainant, LA. It is upon the conduct of the police. [ 264 ] The authorities, police and Crown Attorneys, take into account the circumstances of a victim including the vict

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