R. v. R.W. Date:, 2016 BCPC 10

Citation: R. v. R.W. Date: 20160112 2016 BCPC 0010 File No: 2486 Registry: Smithers IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. R.W . REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W.F.M. JACKSON Counsel for the Crown: M. Crisp Counsel for the Defendant: J. Perry Place of Hearing: Smithers , B.C. Date of Hearing: January 4, 2016 Date of Judgment: January 12, 2016 Background

[1] This is an application by the accused under sections 7 and 11 of the Charter of Rights and Freedoms for a judicial stay of thecharge. [2] The accused is charged with an offence under s271 of the Criminal Code. The offence is alleged to have occurred on or about May 1st, 2008. [3] The complainant is the cousin of the accused. At the time of the alleged offence the complainant was aged 6 and the accusedwas aged 12. [4] The complainant disclosed the allegation to his parents in approximately June 2008.

The parents of the accused were advisedof the allegation shortly thereafter. [5] The accused’s parents discussed the allegation with him shortly after being advised. They further took steps such that theaccused has had no contact with the complainant since. [6] The allegations were disclosed to the RCMP in February 2013 due to the persistent depression of the complainant as a result ofthe incident. [7] An investigation by the RCMP ensued during which statements were taken. Those include a statement by the accused on March 1st, 2014.

In that statement the accused indicated that he had no memory whatsoever of the alleged incident. [8] An Information charging the accused was sworn September 16th, 2014 charging sections 271 and 151 of the Criminal Code asa young person under The Youth Criminal Justice Act. As a result of written communication between the accused’s counsel and the Crown Counsel office, a “C” Information was sworn October 28th, 2014. The “C” Information only charges under

section 271. [9] On January 19th, 2015 the Crown sent a letter suggesting a more detailed possible disposition than the original InitialSentencing Position. [10] On January 28th, 2015 counsel for the accused wrote to the Crown Counsel office to respond to the Crown’s proposal. Anagreed disposition was not reached. [11] On February 3rd, 2015 counsel appeared as agent for the accused and a plea of Not Guilty was entered.

A five day trial was scheduled to commence November 9th, 2015. [12] On October 7th, 2015, the trial was adjourned due to the unavailability of the accused’s counsel and subsequently the file was adjourned to January 4th, 2016 for this application. [13] The accused’s date of birth is [omitted for publishing]. [14] By agreement a number of medical and mental assessments of the accused were filed as part of this application. The earliestreports are from the accused’s school between 2005 and 2012. These confirmed a learning impairment. [15] There is a psychology assessment by Dr.

Rocha from November 5th, 2011 and one by Dr. Moisey from October of 2012. [16] There is also a discharge

summary for the accused by the Maples Adolescent Treatment Centre (DALA) from August 2013. [17] It is an agreed fact for this application both that the accused is cognitively impaired and that his biological mother used alcoholand cocaine during her pregnancy. Submissions [18] The applicant submits that his right to trial within a reasonable time under s11(

b) of the Charter of Rights and Freedoms hasbeen violated because of unreasonable delay since the RCMP became aware of the allegations. [19] The applicant also submits that his rights to “life, liberty and security of person” under s7 of the Charter of Rights andFreedoms have been violated because the delay from the alleged incident to the trial date which combined with his cognitive disabilityrenders it impossible for him to make full answer and defence. [20] Further, the applicant submits that his rights under

section 7 of the Charter have been violated because there is no publicinterest in this prosecution as the potential effects on him are more negative than rehabilitative and fail to meet the principles laid out insection 3 of the Youth Criminal Justice Act. [21] The Crown argues that: the post charge delay is not unreasonable; that the entire post-incident delay and inability of theaccused to remember the alleged incident do not violate the applicant’s right to a fair trial; and that this prosecution is in the publicinterest. Assessment [22] Per R. v.

L (W.K.) (SCC), [1991] 1 S.C.R. 1091, the onus is on the accused on the balance of probabilities toestablish that his rights under the Charter were violated. It further holds that pre-charge delay is not applicable to determining“unreasonable delay” under s11 of the Charter but is a factor to consider on the issue of fairness of proceedings under

section 7 of theCharter.

[23] In R. v. D (R.C.)

(2006) BCCA 211 the Court of Appeal held that the principles of assessing breaches of rights under theCharter when dealing with charges under the Youth Criminal Justice Act remains fundamentally the same and that the timeliness ofprosecutions is only one principle governing the

interpretation of the principles contained in

section 3 and other parts of the YCJA. Concerning s11 of the Charter R. v. Morin (SCC), [1992] 1 S.C.R. 771, lays out the factors the court is consider in determining whether a delay unders11b of the Charter is unreasonable. These factors are: 1. Length of delay 2. Waiver of time periods 3. The reason for the delay, including:

a) Inherent time requirements for the case,

b) Actions of the accused;

c) Actions of the Crown;

d) Limits on institutional resources;

e) Other reasons for delay. 4. Prejudice to the accused. [24] In applying these factors to the case at hand the length of time after the charge was laid is from September 16th, 2014 until November 9th, 2015. At worst the clock runs from the report to the police in February 2013. There is no waiver of the delay. Thereasons for the delay include the inherent time required by the police to investigate such as taking statements, the negotiations betweencounsel, the discussion of the proposed disposition by the Crown with the complaint that is required by The Victims of Crime Act, RCBC1996 ch478 and

section 5 of the Youth Criminal Justice Act and the usual limits on institutional resources reflected in scheduling what isa lengthy matter in provincial court. [25] The court must also consider what prejudice the accused has proven that was caused by the passage of time from the laying ofthe charge or to give the accused the benefit of a broad

interpretation the passage of time from the reporting to the police. [26] It is clear that the accused has not suffered any prejudice during the time considered under s11 of the Charter. If there isprejudice because of his inability to remember the alleged incident, that inability existed before the Information was sworn. From theaccused’s statement of March 1, 2014, he had no memory of the alleged incident at that time. [27] As well the effluxion of time from February 2013 and certainly from September 2014 until the first scheduled trial date in aconsideration of the R. v. Morin factors is not unreasonable.

Accordingly, the application for relief under s11 of the Charter fails. Consideration of s7 of The Charter [28] However, the court must consider whether the accused has established a breach of his right to a fair trial under s7 of theCharter. As per R. v. L (WK) pre-charge delay is a consideration. [29] As per R. v. Titanich

(2005) BCSC 1914, if a breach of s11 Rights is found and prejudice is also found the court must stillbalance the interests of the accused against the societal interest in a trial on the merits. [30] Per R. v. O’Connor (SCC), [1995] 4 S.C.R. 411 the court adopted the Common Law principles on abuse ofprocess to the consideration of fundamental justice under s7 of the Charter. That decision also adopted the earlier Common Lawreasoning from Connelly v.

D.P.P. [1964] A.C. 1254 (H.L.), which was that the residual discretion to stay proceedings where proceedingto trial “would violate the fundamental principles of justice which underlie the community’s sense of fair play…” is only to be exercisedin the “clearest of cases.” [31] The accused has submitted that his rights under s7 of the Charter had been violated due to a number of factors.

This includesthe pre-charge delay, the post-charge delay, his inability to make full answer because he cannot remember the alleged incident due to thepassage of time and in cognitive disability. [32] As well, the accused submitted that the principles stated in

section 3 of the YCJA either cannot be met or have been met by theassessments and counselling the accused has received since the alleged incident.

Accordingly, it is submitted to continue the prosecutionis not in the public interest and by inference it offends the public faith in the fairness of the proceedings. [33] The accused referred the court to section 3(1)(a)iii (supporting crime prevention by referring the young offenders to agencies toaddress underlying problems), section 3(1)(b), (consider the diminished moral blameworthiness of the young person) and 3(1)b(ii), (befair and proportional in consideration of the reduced level of maturity of the young person). [34] The accused has submitted that his inability to remember the incident makes it impossible for him to give evidence as to hismotive in committing the alleged offence which renders the trial unfair. [35] A similar argument was considered in R. v.

T.W.K

(2005) BCPC 597. At paragraph 23 the learned trial judge found that the

cognitive disability of the accused that made remembering the alleged incident did not arise during the pre-charge delay and accordinglywas not a prejudice caused by the delay. That is the same in this case as per paragraph 27 above. [36] As indicated in the R. v. T.W.K. decision at paragraph 24: For an accused to demonstrate that delay has unduly affected the fairness of his or her trial so as to justify a stay of proceedings, the factsrelied on must be material and there must be evidence of actual or substantial prejudice which results in a breach of the accused’s right toa fair trial. [37] That principle is drawn from a number of cases binding on this court such as R. v. R.E.M.

(2004) BCL #1849. [38] The accused’s submission that there may be evidence on the issue of intent is purely speculative. The elements of a sexualassault charge under s271 are the non-consensual application of force (including a touching) either for sexual gratification or that violatethe complainant’s sexual integrity (as per R. v. Chase, (SCC), [1987] 2 S.C.R 293 and R. v. S (P.L.) (SCC), [1991] 1 S.C.R 909. The allegations of this file involve the insertion of a finger or object by the accused into the penis of thecomplainant. The complainant was too young to consent at law.

Accordingly, unless the defence is accident, motive is irrelevant. [39] Concerning the issue of pre-charge delay, the Supreme Court of Canada in R. v. L. (W.K.) (SCC), [1991] 1S.C.R. 1091 pointed out that it is common for a number of logical and psychological reasons that complainants, especially children delaydisclosure for long periods of time. That is not the case here as the complainant disclosed relatively quickly and his mother delayedreporting it to the police to avoid the psychological trauma of legal proceedings on her young child. [40] The decision R. v.

Nixon 2011 SCC 34 , [2011] 2 SCR 566 held that “… prejudice under the residual category of casesis better conceptualized as

an act tending to undermine society’s expectations of fairness in the administration of justice.” There is “anessential balancing character of abuse of process under the residual category of cases…”. [41] As part of his submissions the accused argued that there was no public interest in proceeding with the prosecution as:

a) The alleged incident was a ‘one-off”,

b) His parents had disciplined him for the alleged incident when it was fresh in time,

c) He had no contact with the complainant since which is longer than any potential probation order,

d) He has had counselling weekly for a long period of time and continues to do so,

e) He has diminished moral blameworthiness due to his cognitive disability,

f) He has suffered great anxiety and depression since the police investigation started to the point of being suicidal. [42] The accused has submitted that the lack of public interest in the prosecution alone or in conjunction with the overall delaywould as per R. v. Nixon, “undermine society’s expectations of fairness in the administration of justice.” [43] The court must balance the interests of the accused and society in determining if society’s “expectations of fairness in theadministration of justice.” Aside the provisions of s3 of the YCJA relied on by the accused the court must consider other provisions ofsection 3. These include s3(1)(a)(

i) and (ii). Those subsections read as follows: The youth criminal justice system is intended to protect the public by;

i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree ofresponsibility of the young person, ii) promoting the rehabilitation and reintegration of young persons who have committed offences. [44] Concerning the submissions in paragraph 41 above, the court agrees that the parents of the accused have taken reasonable stepsas far as they are able to deal with the allegation. However, there is no evidence as to whether the counselling deals specifically withsexual mis-behaviour.

As well, while the accused is most likely affected and depressed by the allegations, Dr. Moisey’s assessment of October 23rd, 2012 at the top of the second full paragraph on page 3 states that the accused “is sufficiently complex to require inpatientevaluation particularly given his chronic suicidal ideation.” Accordingly, the suicidal ideation existed before the start of the policeinvestigation. [45] There are steps such as an assessment as to risk of sexual re-offending and specialized counselling available if there is a findingof guilt.

These go beyond the rehabilitative steps the accused’s parents have taken. [46] The accused’s submission that proceeding is a waste of time and resources as the accused has had counselling and familialinterventions goes to the utility of the possible sentences. The utility of possible sentences is a factor in determining the fairness of theproceedings.

The utility of possible sentence is not identical to the fairness of proceedings. [47] On a consideration of all of these factors, I conclude that the accused has not established that proceeding with the prosecutionwould undermine the public’s expectations of fairness in the administration of justice. Accordingly, the accused’s application for ajudicial stay is dismissed.

______________________________ W.F.M. Jackson Provincial Court Judge