R. v. Graham, 2021 MBPC 33

CITATION: R. v. Graham , 2021 MBPC 33 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) ) ) M. Bodner K. Parker J. Laplante ) ) ) for the Crown - and - ) ) ) Frank Graham Accused ) ) R. Gupta for the Accused ) ) ) ) Reasons for Decision ) Delivered: August 5, 2021 CAWLEY, P.J. INTRODUCTION [ 1 ] Ten years ago, Mr. Frank Graham (Graham) was charged with the sexual assault of a fourteen-year-old girl. He appeared in court twice before absconding from Manitoba in 2011.

He was not arrested until 2019 despite the Royal Canadian Mounted Police (RCMP) and the Crown being aware of his whereabouts in 2012 and 2014. [ 2 ] Graham applies to have his charge stayed pursuant to s. 24 (1) of the Canadian Charter of Rights and Freedoms (“the Charter ”) on the basis that his s. 11 (

b) right to a trial within a reasonable time was breached. This case highlights the importance of the state’s obligation to act with reasonable diligence in bringing accused persons to trial. For the reasons that follow, I am granting the motion and directing a stay of proceedings. CHRONOLOGY OF EVENTS [ 3 ] On March 14, 2011 Graham was arrested in Thompson, Manitoba for sexual assault. He was released on a recognizance with conditions to reside in Thompson and not to consume alcohol. He attended court on April 29, 2011 and May 20, 2011 before he failed to attend on June 24, 2011.

Graham did not contact the police or the Crown about his absence. He moved to Edmonton in August 2011. [ 4 ] A bench warrant issued for Graham’s arrest on August 11, 2011. The warrant had a Manitoba radius which meant it was valid across Canada but the Thompson RCMP were not prepared to pay for Graham’s transportation back to Manitoba unless the Crown approved of the warrant’s extension outside the province.

The RCMP tried unsuccessfully to locate Graham throughout 2011. [ 5 ] On January 1, 2012, the RCMP learned Graham may be living in Alberta. [ 6 ] On January 7, 2012, the complainant told the police she was no longer cooperating with the prosecution. [ 7 ] On June 19, 2012, the RCMP obtained Graham’s address in Alberta through his previous employer.

[ 8 ] On June 29, 2012, the RCMP in Fort Saskatchewan, Alberta coincidentally arrested Graham for Fisheries Act offences and for violating his Manitoba recognizance by not residing in Thompson and for consuming alcohol. The Thompson RCMP were aware of his arrest because they provided their Alberta colleagues with a copy of his recognizance. The police occurrence report from June 30, 2012, filed with the Court, stated the outstanding warrant was not being extended at that time because the complainant was uncooperative.

The RCMP were going to contact the Crown to discuss extending the warrant or staying the charges. [ 9 ] In his affidavit filed with this Court, Graham indicated that when he was arrested on June 29, 2012, the RCMP first told him he would be transported back to Manitoba because of the pending sexual assault charge, then subsequently, that the charge had been stayed. Graham was granted release from custody on June 30, 2012 with conditions to reside at 475 Evergreen Trailer Park in Edmonton, Alberta and to attend court as required.

There is no evidence of communication between the RCMP and the Crown prior to the accused’s release. [ 10 ] The Thompson RCMP wrote to the Crown`s office on July 18, 2012 to seek approval to extend the warrant to Alberta so Graham could be arrested and transported back to Manitoba. They received no response. On September 7, 2012, the RCMP renewed their request.

The warrant was extended in October 2012 but because of a series of miscommunications between the police agencies in Manitoba and Alberta, Graham was never arrested. [ 11 ] Graham attended court in Fort Saskatchewan, Alberta ten times between July and October 2012. On October 25, 2012, he pleaded guilty to his breach charges relating to the Manitoba recognizance and the Fisheries Act offences. He was sentenced to fines.

In his affidavit filed with this Court, Graham indicates he believed all of his charges had been dealt with after he was sentenced by the Alberta Court in October 2012. [ 12 ] On November 5, 2013 the RCMP learned Graham may have moved to Nova Scotia but they did not conduct any further checks to locate him in 2013. In the spring of 2014, the police continued to look for Graham.

They checked the driver’s license data banks in Alberta and Saskatchewan with negative results. [ 13 ] On April 26, 2014, the Thompson RCMP learned Graham was still residing in Alberta and he was about to be arrested by Alberta Fisheries for unpaid fines. Alberta Fisheries asked Thompson RCMP if they wanted Graham arrested on the outstanding Manitoba warrant but the Crown (not counsel on this matter) declined. The Crown and the RCMP agreed they should first speak to the complainant, to ensure she was cooperating with the prosecution, before arresting and transporting Graham.

The Crown wanted to be satisfied there was a reasonable likelihood of conviction. The RCMP were concerned about the cost of transporting Graham back to Manitoba. The Crown and the RCMP agreed, if the complainant remained uncooperative, Graham’s charge would be stayed. If she was willing to testify, the Crown would authorize Graham’s arrest and transport back to Manitoba.

Inexplicably, there is no record of any attempt by the Crown’s office or the RCMP to locate the complainant who, at that time, was incarcerated in Manitoba. [ 14 ] In April 2015, the RCMP reviewed their file and noted they needed to speak to the complainant. There is no record they did so. Despite no further communication with the Crown, the Thompson RCMP continued to conduct checks to locate Graham. Again, they checked the driver’s licensing and vehicle registration data banks in Alberta and Saskatchewan with negative results.

There is no record they checked Graham’s 2012 release address in Edmonton, Alberta. [ 15 ] Meanwhile, Graham continued to live at 475 Evergreen Trailer Park in Edmonton until he moved to Nova Scotia in 2016. He activated his driver’s license in Nova Scotia in September 2016. [ 16 ] Between 2016 and 2018, the RCMP conducted police data bank and driver’s licensing checks in Alberta, Saskatchewan, British Columbia, and Ontario. They did not check the province of Nova Scotia. [ 17 ] On January 14, 2019, the Thompson RCMP searched the Nova Scotia driver’s license data bank and found Graham’s address.

On February 12, 2019, the police spoke with the complainant who confirmed she would cooperate with the prosecution. The RCMP contacted the Crown on March 11, 2019 and asked for approval to extend the warrant to Nova Scotia. The RCMP and the Crown communicated on a few occasions over the next few months but the decision to extend the warrant was not made until August 16, 2019. [ 18 ] Coincidentally, Graham was arrested on August 17, 2019 under the Liquor Control Act in Guysborough, Nova Scotia. The RCMP in Nova Scotia contacted the Thompson RCMP to ask if they were going to transport him back to Manitoba.

The Thompson RCMP told their colleagues in Nova Scotia to release Graham because his warrant was not being extended. The next day Thompson RCMP changed their position and confirmed they would be extending the warrant to Nova Scotia. [ 19 ] Graham was arrested on August 22, 2019 and transported back to Manitoba. He was granted release requiring a cash deposit on September 9, 2019. He remained in custody for 57 days until he deposited the cash on October 17, 2019.

COURT PROCEEDINGS FOLLOWING THE 2019 ARREST [ 20 ] After two court appearances in Manitoba, a Case Management Conference (CMC) was scheduled for November 18, 2019. The CMC did not proceed because defence counsel did not attend (virtually) due to technological issues. Another CMC was set for December 23, 2019. [ 21 ] At the December 23, 2019 CMC, defence counsel indicated disclosure was complete except for two outstanding documents. Counsel agreed one day was required for trial.

Defence counsel indicated he was contemplating bringing a delay motion. [ 22 ] A second CMC was scheduled, at defence counsel’s request, for March 11, 2020 but it did not proceed because the judge was ill. Another CMC was scheduled for April 24, 2020. On April 24, 2020 defence counsel confirmed disclosure was complete. He reiterated he was considering bringing a delay motion. Counsel agreed if a motion was filed, it would necessitate an additional one-day court appearance prior to trial.

The trial was scheduled for October 6, 2020. [ 23 ] On August 31, 2020 defence counsel inquired with the Crown about missing disclosure relating to the sexual assault allegation.

The Crown declined to disclose the missing material electronically and instead couriered a paper copy. The disclosure was sent to thewrong address. Defence counsel received the disclosure electronically on September 23, 2020. [24] On October 1, 2020, defence counsel requested an adjournment of the October 6, 2020 trial date because he did not havesufficient time to prepare given the late disclosure. His request was granted. A new trial date of October 28, 2020 was set. [25] On October 26, 2020 defence counsel applied to the Court to allow Graham to appear virtually at his trial.

Graham could notafford the travel or accommodation costs needed to quarantine as required by the pandemic health protocols. The request for remoteappearance was denied because there was insufficient time to arrange for a virtual appearance. Defence counsel then applied to adjournthe trial on October 28, 2020, waiving any delay between October 28, 2020 and the yet to be scheduled new trial date. His applicationwas granted. [26] In November 2020, the Crown and defence counsel continued to communicate about outstanding disclosure relating toGraham’s delay motion.

Some of Graham’s court appearances were cancelled due to the pandemic restrictions. Another CMC wasscheduled for February 22, 2021. The delay motion and trial dates of June 11 and 14, 2021 were set at that time. LEGAL FRAMEWORK [27] Since the Supreme Court of Canada released its decision in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, new timelineshave been imposed for all prosecutions across Canada.

A delay of more than 18 months, between the charge and the anticipated end ofthe trial is presumptively unreasonable for matters proceeding in the Provincial Court. [28] If after deducting delay caused solely by the defence, the net delay still exceeds 18 months, the Crown must show there areexceptional circumstances justifying that delay. Exceptional circumstances are circumstances that lie outside the Crown’s control andinvolve situations where the Crown cannot easily remedy the resulting delay. Jordan confirmed exceptional circumstances generally fallunder two categories: discrete events and complex cases.

The parties agree this is not a particularly complex case. [29] For cases like this one that were already in the system prior to the release of Jordan, the framework is to be applied flexibly andcontextually. If the delay exceeds the ceiling, a transitional exceptional circumstance may arise if the Crown satisfies the Court that thetime the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed. Prior to Jordan, theleading cases on delay were R. v. Askov, (SCC), [1990] 2 S.C.R. 1199 and R. v. Morin, (SCC), [1992] 1S.C.R. 771.

Askov and Morin required consideration of several factors in determining whether there had been an infringement of s. 11(b)of the Charter, including: 1. the length of the delay; 2. any waiver of time periods; 3. the reasons for the delay, including a. inherent time requirements of the case, b. actions of the accused, c. actions of the Crown, d. limits on institutional resources, and e. Other reasons for delay; and 4. prejudice to the accused. POSITION OF THE PARTIES [30] The defence position is that the net delay in this case is over eight years and warrants the remedy of a judicial stay of proceedings.

Defence counsel concedes the period of delay between Graham’s failure to attend court in 2011 and the date when the police obtainedhis address in Alberta, in June 2012, is defence delay.

He argues, however, that Graham should not be penalized for all of the resultingdelay or for failing to take proactive steps to address the sexual assault charge because he believed the charge had been stayed in 2012. [31] Defence counsel argues the Crown is responsible for the delay from June 19, 2012 until Graham`s arrest because the state did notact with reasonable diligence to arrest and transport Graham back to Manitoba when they learned of his whereabouts in 2012 and 2014.

Defence counsel argues the Crown is also responsible for most of the delay after Graham’s arrest in 2019 because they did not providetimely disclosure. [32] The Crown’s position is that Graham is responsible for all delay after he absconded from Manitoba in 2011. While the Crownadmits the steps taken by the state were not perfect, they argue their efforts were reasonable. The police made attempts to have Grahamarrested in 2012 and the decision not to extend the warrant in 2014 was made to ensure there was a reasonable likelihood of convictionbefore wasting scarce judicial resources.

This was not a pre-charge scenario where Graham was unaware of the outstanding warrant. Heknew he had a pending charge and a legal obligation to attend court when he absconded in 2011.

[33] The Crown argues the fact a bench warrant issued for Graham’s arrest distinguishes this case from other precedents involvingpre-charge delay. Graham’s unilateral decision to abscond set in motion a series of cascading delays that impeded the justice system’sability to move the matter forward.

As for what occurred after Graham was transported back to Manitoba in 2019, the Crown argues anydelay caused by disclosure was a result of defence counsel not acting with due diligence because he had confirmed disclosure wascomplete at the April 2020 CMC. [34] The Crown says when the defence delay is deducted, which includes the warrant status time, the net delay is under 18 months.

In the alternative, the Crown argues, even if the 18 month ceiling was exceeded, the motion should be dismissed because: this is atransitional case; the Crown acted reasonably and in reliance on the law as it existed pre-Jordan; there is no basis to find Grahamsuffered actual or inferred prejudice from the delay; and, this is a serious charge that should be heard on its merits. ANALYSIS [35] There is no dispute, post-Jordan, all justice participants have an obligation to act with diligence to move prosecutions forwardand minimize delay but the Crown’s obligation to bring an accused person to trial is nothing new.

Long before Jordan, the SupremeCourt made clear, in R. v. Askov, (SCC), [1990] 2 S.C.R. 1199 (at para 57), that it is the duty of the Crown to bring anaccused to trial. [36] The Crown is not relieved of that duty when an accused person absconds. The Crown and the police must continue to act withreasonable diligence and attempt to mitigate further delay. In R. v. White, (ON CA), [1997] O.J. No. 961 (Ont. C.A.),(application for leave dismissed [1997] S.C.C.A. No. 248), the Ontario Court of Appeal recognized the Crown’s ongoing duty to bringaccused persons to trial.

In White, the accused knew he faced charges in Canada but he refused to return. Justices Laskin and Charron (asshe then was) stated the delay caused by the accused would be attributable to the defence, “…unless the Crown knew his whereaboutsand deliberately delayed apprehending him or did not diligently bring him to trial” (at para 36). [37] White was considered in R. v. MacIntosh, 2011 NSCA 111, (endorsed by the Supreme Court at 2013 SCC 23). In MacIntosh,the accused had moved to India before being charged with numerous serious sexual offences.

When the accused learned of theoutstanding charges, he told the police he had no intention of returning to Canada. Though the authorities knew exactly where he was,ten years passed before they requested his extradition. The Nova Scotia Court of Appeal held there was no duty on the accused to bringhimself to trial in these circumstances. The Court found the state had failed to act with diligence which resulted in unreasonable delay. Central to the decision was the fact the authorities knew the accused’s whereabouts, but they failed to act.

His charges were stayed. [38] Both White and MacIntosh refer to United States v. Deleon, 710 F.2d 1218 (U.S. 7th Cir. III. 1983), with approval. Deleonconfirmed the American government has a constitutional duty to make a good faith effort to locate, apprehend and bring defendants totrial. MacIntosh recognized this duty was later affirmed by the United States Supreme Court in Marc Gilbert Doggett v. United States,112 S. Ct. 2686, 505 U.S. 647 (U.S. 11th Cir. 1992). [39] Doggett is analogous to this case because it involved an accused who absconded.

Doggett fled from the United States after hewas charged with drug trafficking. The authorities made minimal efforts to locate him. The trial judge found the delay was attributableto the government’s negligence. This finding was upheld by the United States Supreme Court. Doggett’s right to a speedy trial had beenviolated. [40] More recently, Doggett was considered in R. v.

Singleton, 2014 BCCA 232 where Frankel JA stated: 96 The principle I extract from the abovementioned decisions is that while the state has an obligation to act with reasonable diligence tobring an accused who is outside of Canada to trial within a reasonable time, whether that obligation has been met is to be determinedcontextually, considering the investigative avenues available to the police force or investigating agency involved.

When an accused isin a foreign country from which he or she can be extradited and his or her whereabouts are known, Canadian prosecutionofficials are obligated to pursue extradition in a reasonable and timely manner. If they fail to do so then, as in MacIntosh, theensuing delay will be attributed to the Crown. That, however, is not this case. What must be determined here is whether, havingregard to the totality of the circumstances, a reasonably diligent effort was made to locate Mr.

Singleton after charges were laid.(emphasis added) [41] While the circumstances of this case do not relate to extradition, the principles outlined in Singleton still apply. Where anaccused person’s whereabouts are known, the state must act with reasonable diligence to bring that person to trial. Whether thereasonable diligence threshold is met will depend on the steps taken by the state to fulfill their duty. Their action or inaction will beevaluated contextually on a case by case basis. The reasonableness of the delay, in such circumstances, will be assessed consideringseveral relevant factors including: a.

Whether the accused had a legal obligation to attend Court (MacIntosh, at para 74); b. Whether the accused was aware of the outstanding charge or warrant (R. v. Dumais, 2019 ABPC 23 , [2019] A.J. No.145 atparas 31-33); c. Whether the accused continued to take active steps to avoid police detection (R v. R.E.M., 2007 BCCA 154 at para 11 and 16 and R. v.Burke 2018 ONCA 594); and d. Whether the Crown has explained their inaction or the amount of time required to execute an outstanding warrant (see R. v. J.K., 2021ONCA 256 citing R. v. Ryan, (1999), (NB PC), 211 N.B.R. (2d) 1 (PC), R. v.

Pelletier, 2013 NBPC 5 and R. v.Unka, 2005 NWTSC 15(SC)). [42] Applying these factors to this case, there is no question Graham caused the delay when he fled Thompson in 2011. He had a

legal obligation to attend Court. He chose to abscond. While he cannot benefit from his delay-causing action, appreciating s. 11(

b) of the Charter was not intended to be a sword to frustrate the ends of Justice ( Morin , at pp. 801-2), this Court must consider the circumstances as a whole when assessing the reasonableness of the overall delay. [ 43 ] The Thompson RCMP knew Graham’s whereabouts in 2012. They obtained his address in June 2012 through his previous employer. They were also aware he was arrested and released for breaching the Manitoba recognizance. They should have known he may be subject to standard release conditions including residing at a specific address and attending court when required.

I accept Graham’s evidence he was released to reside at 475 Evergreen Trailer Park in Edmonton and he continued to live there until 2016. Graham attended court in Alberta ten times, over four months, until he pleaded guilty in October 2012. He was not hiding. He would have been easy to find had the RCMP exercised reasonable diligence. [ 44 ] This case is distinguishable from R.E.M. , where the accused continued to evade police detection and Burke , where the Court found the accused’s actions were aimed to frustrate the prosecution.

For the reasons that follow, I accept that Graham did not make further inquiries about his Manitoba charge after 2012 because he thought the charge was stayed. [ 45 ] I accept Graham believed the sexual assault charge was stayed in 2012 because his evidence was credible, supported by the circumstances and consistent with the police records. The police report of June 30, 2012 confirmed the authorities were actively contemplating staying the charge in 2012 because the complainant was not cooperating. [ 46 ] During cross-examination Graham admitted he left Thompson in 2011 knowing he had a pending charge.

He did not dispute the RCMP continued to look for him after 2012. He admitted his memory of the conversation he had with the RCMP in 2012 was poor. I reject Graham’s assertion he was specifically told the charge was stayed in 2012 because that is inconsistent with the record and his memory about the details is unreliable. However, I accept Graham was told something relating to the charge being stayed because the police were discussing that possibility when he was released from custody in 2012. I accept Graham believed, based on what he was told, that the charge was or was going to be stayed.

In my view, given the fact he was released from custody and the police never came for him despite knowing where he was, his belief was reasonable. [ 47 ] The Thompson RCMP and the Crown were not required to act perfectly to fulfil their duty to bring the accused to trial, but the steps taken toward extending the warrant and having Graham arrested were too little, too late. After the RCMP obtained Graham’s address in June 2012, they waited one month before asking the Crown to extend the warrant. The Crown did not respond. The RCMP waited another two months before following up with the Crown.

The decision to extend the warrant was made in October. I consider the frequency and timing of the communication between the Crown and the RCMP in 2012 to be inadequate. The Court was not told why it took four months to make the decision to extend the warrant in 2012. Meanwhile, the accused made several court appearances after his release from custody. Given the severity of the charge, Graham’s arrest should have been a priority. The failure to make a timely decision was not reasonable and caused further delay. [ 48 ] The state lost another opportunity to arrest Graham in 2014.

On April 26, 2014, Alberta Fisheries contacted the Thompson RCMP to ask if they should arrest Graham for the outstanding Manitoba warrant. The Crown declined because they first wanted to confirm the complainant was cooperative. This explanation is not reasonable because no effort was made to locate the complainant between 2012 and 2019. The complainant would have been located with minimal effort since she was in custody in Manitoba until August 2014. She was also in and out of custody several times between 2015 and 2020.

The Court has not been provided with an explanation for why the RCMP and the Crown failed to take any active steps to locate her until 2019. [ 49 ] Taking some time to ensure there is a reasonable likelihood of conviction before arresting and transporting an accused may be appropriate, however, in this case, it does not excuse the state’s inaction. The Crown and the RCMP did not act with reasonable diligence when they declined to extend the warrant and then failed to look for the complainant in 2014.

Their inaction caused a further five years of delay. [ 50 ] I disagree with the Crown that all of the delay after 2011 is attributable to Graham because it flowed from his choice to abscond. The Crown relies on Dumais to argue that the accused started the delay, so he cannot complain how the state responded to it. To the extent Dumais stands for the proposition the state is relieved of its duty to act with reasonable diligence to bring accused persons to trial where an accused absconds and a bench warrant issues, I respectfully disagree. In my view, the state has an ongoing duty to act with reasonable diligence.

In any event, Dumais is factually distinguishable because Dumais knew of his outstanding warrant and failed to take steps to redress it whereas Graham believed his charge was stayed. [ 51 ] Graham was eventually located in 2019 after the police conducted driver’s licensing checks in Nova Scotia. The RCMP should have searched Nova Scotia years before 2019 because they knew Graham had connections to that province. Based on the police correspondence filed with the Court, the RCMP knew Graham was born in Nova Scotia and had a Nova Scotia driver’s license on him when he was arrested in 2011.

Defence counsel submitted in their written material Graham has an entry on his criminal record from Nova Scotia. In 2013, the RCMP were told by his neighbor that Graham had moved to Nova Scotia. Despite having all of this information, the RCMP did not conduct any driver’s licensing checks in Nova Scotia until 2019. The failure of the RCMP to search with reasonable diligence resulted in the loss of another opportunity to mitigate the delay.

Graham moved to Nova Scotia in 2016 and would have been found had the police conducted checks later that year. [ 52 ] I am also concerned about the delay in making the decision to extend the Manitoba warrant to Nova Scotia in 2019. The RCMP obtained Graham’s address in January 2019. They sought the Crown’s approval to extend the warrant in March. The RCMP followed up with the Crown about their request on four occasions. They finally received Crown approval to extend the warrant, five months after their initial request, on August 16, 2019.

While I appreciate a new Crown attorney was assigned to the prosecution and they needed time to review the file and locate a key identification witness, I still consider five months an excessive amount of time, particularly post- Jordan , to make the decision to extend the warrant. [ 53 ] After Graham was arrested in August 2019, the prosecution proceeded at a reasonable pace even though there were some issues with scheduling and disclosure. I attribute the delay of the October 6, 2020 trial to both the defence and the Crown. Defence counsel

could have been more proactive in requesting disclosure, particularly after confirming it was complete during the April 2020 CMC, butthe Crown could have minimized the delay by disclosing electronically from the outset or mailing the paper disclosure to the correctaddress. [54] There are periods of time that should be deducted from the total delay. Graham solely caused one year of delay from June2011 to June 2012 when he fled the jurisdiction. Defence counsel caused a further 35 days of delay when counsel failed to attend ascheduled CMC in November, 2019.

Defence counsel clearly and unequivocally waived all delay after October 28, 2020 until the newtrial dates were set which accounts for over seven months. Forty-four days should be deducted as a discrete event because the assignedCMC judge on March 11, 2020 was ill. Even after deducting all of this time, the net delay still exceeds eight years. The inaction by theCrown and the RCMP caused seven years of delay before Graham’s arrest in 2019. Regardless of how the matter proceeded after hisarrest in 2019, the damage was done. [55] Graham need not prove he suffered actual prejudice as a result of this delay.

A Court may infer prejudice from the length ofthe delay (see R v. Godin, 2009 SCC 26, at para 37), especially when there is a “… lack of adequate explanation for the delay and theactions of the Crown” (see R. v. George 2006 MBCA 150 at para 75). In R. v. Vandermeulen, 2015 MBCA 84, our Court of Appealfound significant inherent prejudice because it took three years to bring a straightforward case to trial and the accused had minimallycontributed to the overall delay (see para 56). [56] The Crown argues the delay has worked to Graham’s benefit and the Crown’s detriment (see R. v.

Jansons, 2007 YKTC 49)but the analysis is not a prejudice contest. Excessive delay prejudices both the Crown and defence. I agree with the comments in R. v.Arsenault, 2013 ONSC 5675 (at para 90): The Crown says that the frailties that emerge in a witness’s memory over time enure to the Crown’s detriment and to the accused’sbenefit because the Crown has the burden of proof at trial. I disagree. Exculpatory evidence is forgotten just as easily as inculpatoryevidence.

The potentially harmful effect of wrongful conviction upon an accused, and upon the administration of justice, arising as aresult of a witness’s poor memory is much greater than the effect upon the Crown of an acquittal arising from the same cause. [57] The nature of this prosecution demanded the Crown take reasonable steps to avoid further erosion of the evidence bymitigating delay (see R. v. S. (M.), 2017 MBQB 12 at para 48). Like many sexual assault cases, the main issues in this case arecredibility and identification.

The RCMP were unable to review a photo pack with the complainant because she became uncooperativein 2012. The record of proceedings from October 26, 2020 confirms the Crown anticipates proving Graham’s identification, not throughthe complainant’s testimony, but through the in court identification by another witness who knew Graham in 2011. The Crown’s caseappears to depend on faded memories (S. (M.), at para 62) and dated recognition evidence. During cross-examination, Graham also hada hard time remembering details such as specific conversations with the police, dates and times.

In these circumstances, trial fairness iscompromised. [58] The total delay from the date Graham was charged to the conclusion of the trial is ten years and three months. Afterappropriate deductions, the net delay remains excessive at over eight years. Given the length of delay appreciating the nature of theanticipated evidence, I find Graham’s right to make full answer and defence is prejudiced. [59] I recognize society has a clear interest in criminal matters being adjudicated on their merits.

This is a serious sexual assaultallegation involving a young complainant, but even the most serious charges cannot diminish the right to trial within a reasonable time(R. v. Williamson, 2016 SCC 28 , [2016] 1 S.C.R. 741 at para 34). This Court must look to the long term repute of theadministration of justice appreciating the right to a trial within a reasonable time “….is respected, and the public interest is best served,by trying serious charges on their merits in a timely fashion” (Williamson, at para 36).

The severity of this charge is precisely why theCrown and the RCMP should have acted with reasonable diligence to arrest Graham when they had the chance. CONCLUSION [60] A delay of over eight years is not reasonable. The Crown has failed to show exceptional circumstances, even characterizingGraham’s choice to flee as a discrete event, because the state had two obvious opportunities to remedy the delay caused by his actions,and years to take the necessary steps to bring Graham to court, but they failed to act with reasonable diligence. Jordan stated that s.11(

b) breaches will be found and charges will be stayed, even for transitional cases, where the ceiling is vastly exceeded because of “…repeated mistakes or missteps by the Crown” (Jordan at para 98). This is one of those cases. [61] The Crown’s duty to bring accused persons to trial with reasonable diligence pre-dates Jordan. The Crown and the policeshould have known they were required to make timely decisions and the failure to act would risk the prosecution. Graham’s right to betried within a reasonable time has been violated. The charge of sexual assault is stayed. Cawley, P.J.