R v Vandermeulen (M), 2015 MBCA 84

Citation: R v Vandermeulen (M), 2015 MBCA 84 Date: 20150917 Docket: AR14-30-08192 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Holly C. Beard Madam Justice Diana M. Cameron BETWEEN : ) S. B. Simmonds and HER MAJESTY THE QUEEN ) K. J. Advent ) for the Appellant ) Respondent ) R. N. Malaviya , ) R. D. Lagimodière and - and - ) M. A. Bodner ) for the Respondent MARLIN VANDERMEULEN ) ) Appeal heard: ) March 27, 2015 (Accused) Appellant ) ) Judgment delivered: ) September 17, 2015 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that could disclose the identity of the complainant(

s) or a witness(es) (see s. 486.4 of the Criminal Code ). On appeal from 2013 MBQB 118 , 292 ManR (2d) 159 BEARD JA I. THE ISSUES [ 1 ] The accused has appealed his convictions on a number of charges arising out of his three-year relationship with the complainant, including assault causing bodily harm, four counts of assault, uttering threats and sexual assault causing bodily harm.

He has not appealed his global sentence of three and one-half years of imprisonment. [ 2 ] At the beginning of the trial, the accused pled guilty to two charges of breaching the terms of his undertaking, for which he received a sentence of time served of seven days. [ 3 ] The accused brought two pre-trial motions, one for a stay of proceedings under s. 24(1) of the Canadian Charter of Rights and Freedoms (the Charter ) due to a breach of his right under s. 11(

b) of the Charter to be tried within a reasonable time (the s. 11(

b) motion) and another under s. 276 of the Criminal Code to be permitted to cross-examine the complainant on prior sexual conduct. Both motions were dismissed by the trial judge. [ 4 ] The accused has raised several grounds of appeal, challenging the dismissal of both motions and his convictions. I am of the view that this appeal can be resolved on the basis of the trial judge’s decision on the s. 11(

b) motion, so I am limiting my comments to that issue. II. THE FACTS [ 5 ] The evidence for the s. 11(

b) motion was provided by way of affidavits and attached documents; there was no viva voce evidence called on the motion. [ 6 ] The complainant and the accused dated, but did not live together, from February 2007 to February 2010. The accused was arrested on January 29, 2010, and charged with a number of offences related to events that occurred that day, including assault

causing bodily harm, utter threats and theft under $5,000. He was released on an undertaking, one of the conditions being that he haveno contact or communication with the complainant. [7] On February 27, 2010, the accused was arrested on charges of breaching the undertaking by contacting thecomplainant following his release. At the same time, he was arrested on new charges relating to assaults and sexual assaults alleged tohave occurred earlier in the relationship.

The complainant had disclosed these earlier assaults to the police during the course of making avideotaped statement describing the events of January 29, 2010. [8] It is not necessary, for the purpose of this appeal, to review the details of the numerous assaults. While thecomplainant was never admitted to the hospital as a result of these acts, the complaints involve allegations of serious and ongoingassaults. [9] The facts relevant to the s. 11(

b) motion, as found by the trial judge, are as follows (at paras 3-12): On January 29, 2010, the accused was arrested and charged in relation to events that occurred earlier that morning. He was releasedthe same day on an undertaking. The accused was re-arrested on February 27, 2010 and charged with two counts of breach of undertaking, and several other chargesrelating to incidents that occurred in July and August 2009. He was released on bail on March 8, 2010.

Crown disclosure was provided to the defence on March 15, 2010; the accused’s first court appearance was March 29, 2010, atwhich time the date for entering a plea was set for July 19, 2010. The Crown provided further disclosure on July 21, 2010, and on the same date advised defence counsel that she may have to bringa motion for third party disclosure to obtain the report concerning the sexual assault examination, and the complainant’s medicalinformation. The Crown indicated it had been in contact with Victim Services to determine if the complainant was maintaining a privacyinterest.

Counsel was retained for the complainant to deal with this. At a case management conference on September 28, 2010, the Crown advised defence that it would not be able to disclose thecomplainant’s medical information. The matter was remanded seven times before a preliminary inquiry date of April 28, 2011 was set on October 7, 2010. Defencecounsel took the position that she would not agree to a date until the medical evidence concerning the complainant’s injuries wasprovided. Ultimately, however, the preliminary inquiry proceeded without it. No motion for disclosure for third party records wasbrought.

The April 28th date was adjourned – with the Crown’s consent, because it was discovered that the Crown had not provided theentirety of the investigating officer’s notes. The preliminary inquiry was held November 22, 2011; argument was not completed until April 11, 2012. The delay was becausethe preliminary inquiry judge was away on an unexpected leave of absence. A decision on committal was given on April 25, 2012. Two pre-trial conferences were held in this court in June 2012. The court and the Crown were both available for trial in lateNovember 2012; defence counsel was not available until February 26, 2013.

The trial proceeded and was completed in the time set. Thus, the time from preliminary inquiry to trial was 15 months, and 36 months from the date charges were laid to trial. [10] The trial ended on March 4, 2013. III. THE TRIAL JUDGE’S REASONS [11] The trial judge reviewed the facts that formed the basis of her decision on the s. 11(

b) motion. She then referred to theprinciples for a s. 11(

b) motion as set out by the Supreme Court of Canada in R v Morin, (SCC), [1992] 1 SCR 771 andR v Godin, 2009 SCC 26, [2009] 2 SCR 3. [12] In analysing the facts in relation to the legal principles, the trial judge made the following findings: - that the accused refused to set preliminary inquiry dates until the medical evidence concerning the complainant’s injuries wasprovided and that, as a result of that refusal, he should be taken to have waived any delay between July 21, 2010, when disclosure wasotherwise complete, and October 7, 2010, the date upon which the November 22, 2011 preliminary inquiry was set – a period of two andone-half months; - that the adjournment of the preliminary inquiry from November 22, 2011 to April 25, 2012, due to the preliminary inquiry judgebeing away on an unexplained leave was attributable to the “vicissitudes of life” (at para 25) and was part of the inherent timerequirements, not, as the defence argued, institutional delay; - that the delay of seven months in the scheduling of the preliminary inquiry due to missing disclosure by the Crown was attributableto the Crown or was institutional delay; and - that the Crown and the court offered a trial date in late November 2012, but defence counsel was not available until late February,resulting in a three-month delay that should be attributed to the accused. [13] The trial judge then addressed the prejudice to the accused.

She found that he had been out of custody on conditions that

were not stringent. She accepted that he suffered some inherent prejudice from the delay. She stated that the accused has the onus ofexplaining how the prejudice is due to the delay, as opposed to the charges themselves, which requires evidence as opposed to mereassertions.

Further, she agreed that an accused who suffers negative business and professional consequences will suffer a greaterprejudice with delay. [14] Finally, she concluded as follows (at paras 33-34): The problem in this case is the time the matter was in Provincial Court – that is, from charges in late February 2010 untilcompletion of the preliminary inquiry in late April 2012 which is 26 months – is far in excess of the Morin standard of 8-10 months. Agood part of this was due to the adjournment of the preliminary inquiry for which the Crown is responsible.

However, the accusedcontributed to the delay, as did the inherent time required to finish the preliminary inquiry. While one could argue that a month here or amonth there was also part of the inherent time, the delay to be “counted” against the Crown in this step of the proceeding is in the area of18-19 months. While this is well outside the Morin range, in all of the circumstances, I conclude it is not unreasonable and does not outweigh thepublic interest that the accused be brought to trial on these very serious charges. IV.

THE PARTIES’ POSITIONS [15] The accused has raised several grounds of appeal in relation to the trial judge’s decision on the s. 11(

b) motion: (

i) The accused argues that the trial judge erred in finding that he waived the two and one-half month period between July 21, 2010and October 7, 2010. His position is that there was no waiver and that this part of the delay should be attributed to the Crown. (ii) The accused argues that the trial judge erred in finding that the five-month delay in the completion of the preliminary inquirycaused by the unavailability of the preliminary inquiry judge was an inherent delay, given that the Crown did not lead any evidence toexplain the reason for the delay.

His position is this delay was not inherent delay but, rather, an institutional delay to be attributed to theCrown. (iii) The accused argues that the trial judge erred in finding that the three-month delay between November 26, 2012 and February 26,2013, for the commencement of the trial was to be attributed to the defence. His position is that the evidence is that, while his lawyerwas not available on the November date, she was available earlier than the February date, but either the Crown or the court was notavailable on any of those earlier dates.

He further states that the law is that defence counsel does not have to accept the earliest dateoffered by the Crown to avoid having a delay attributed to the defence. Finally, he argues that the trial judge failed to consider the factthat a part of the delay was due to the Christmas and New Year’s holidays. Taking all of this into account, he argues that the trial judgeerred in attributing this delay to the defence. (iv) The accused argues that the trial judge erred by failing to give sufficient weight to the prejudice, and particularly the inherentprejudice, to the accused arising from the delay.

In this regard, he relies on the decisions in Godin, Morin, and R v KGW, 2014 ONCA598, 324 OAC 231, this last decision having been released after the trial judge released her reasons. (

v) The accused argues that the trial judge erred in failing to consider the factor of society’s interest in having trials completed within areasonable time, which is a factor referred to in R v George (DP), 2006 MBCA 150 at paras 79-80, 208 ManR (2d) 300. (vi) The accused argues that, given the length of the delay, the lack of any responsibility for the delay attributable to the defence andthe fact that this was not a complex case, the trial judge erred in finding that the delay in this matter was not unreasonable and did notbreach s. 11(b). [16] The Crown’s position on these grounds of appeal is as follows: (

i) The Crown argues that the trial judge found, as a fact, that the accused had refused to set a preliminary inquiry date between July21, 2010, and October 7, 2010, while waiting for the disclosure of medical evidence. She also found that these were third party recordsthat the Crown was not in a position to release without either the consent of the complainant or a court order, which required a defencemotion.

Thus, it was reasonable for the trial judge to find that the defence had waived this delay, since the preliminary inquiry datesshould have been set at an earlier time and without waiting for the records. (ii) The Crown argues that it was open to the trial judge to find that the delay during the preliminary inquiry from November 22, 2011,to April 11, 2012, was due to the unexpected leave of absence of the preliminary inquiry judge and to characterize this as inherent delay. For this, it relies on R v MacDougall, (SCC), [1998] 3 SCR 45 at paras 45-46, and R v Tovey, [2006] OJ No 3164 atpara 21 (Ct J) (QL).

In response to the accused’s argument that there is no evidence of the reason for this delay, the Crown’s position isthat the preliminary inquiry judge’s email message stated that he took “an unexpected leave of absence” and the Crown should not haveto demand any further explanation. (iii) The Crown argues that the trial judge found that defence counsel was not available for trial on November 26, 2012, when theCrown and the court were available, and that it was reasonable for her to attribute the resulting delay to the defence.

Its position is that itwould be unfair to attribute this delay to the Crown as institutional delay when earlier dates had been offered to defence counsel. (iv) The Crown argues that the trial judge fairly considered all of the prejudice alleged by the accused, finding little or no actualprejudice, by acknowledging that some prejudice could be inferred from the delay. Its position is that the trial judge made no errors inher assessment of the prejudice to the accused. (

v) The Crown argues that, while the trial judge did not specifically refer to the factor of society’s interest in having trials completed

within a reasonable time, a trial judge is not required to restate all of the applicable legal principles. Given that she did refer to theGeorge decision which refers to this principle, it should be assumed that she was familiar with it and took it into account. (vi) The Crown argues that the trial judge considered and weighed all of the relevant factors and that her decision that the delay wasreasonable was discretionary and is entitled to considerable deference. Its position is that, given that deference is to be accorded, herdecision should not be overturned. V. THE MORIN FACTORS [17] The leading decisions that set out the framework for a s. 11(

b) analysis are Morin and Godin. Sopinka J, for the majorityin Morin, explained the factors to be applied and how they should be applied as follows (at pp 787-88): The general approach to a determination as to whether the right [under s 11(b)] has been denied is not by the application of amathematical or administrative formula but rather by a judicial determination balancing the interests which the

section is designed toprotect against factors which either inevitably lead to delay or are otherwise the cause of delay. As I noted in Smith [(SCC), [1989] 2 SCR 1120], “[i]t is axiomatic that some delay is inevitable. The question is, at what point does the delay becomeunreasonable?” (p. 1131). While the Court has at times indicated otherwise, it is now accepted that the factors to be considered inanalyzing how long is too long may be listed as follows: 1. the length of the delay; 2. waiver of time periods; 3. the reasons for the delay, including (

a) inherent time requirements of the case, (

b) actions of the accused, (

c) actions of the Crown, (

d) limits on institutional resources, and (

e) other reasons for delay; and 4. prejudice to the accused. . . . The judicial process referred to as “balancing” requires an examination of the length of the delay and its evaluation in light of theother factors. A judicial determination is then made as to whether the period of delay is unreasonable. In coming to this conclusion,account must be taken of the interests which s. 11(

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

b) seeks to protect, the explanation for the delay andthe prejudice to the accused. [18] The interests that s. 11(

b) was designed to protect were explained by Sopinka J as follows (at p 786-87): The primary purpose of s. 11(

b) is the protection of the individual rights of [the] accused. A secondary interest of society as awhole has, however, been recognized by this Court. I will address each of these interests and their interaction. The individual rights which the

section seeks to protect are: (1) the right to security of the person, (2) the right to liberty, and (3) the right to a fair trial. The right to security of the person is protected in s. 11(

b) by seeking to minimize the anxiety, concern and stigma of exposure tocriminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result frompre-trial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings takeplace while evidence is available and fresh. The secondary societal interest is most obvious when it parallels that of the accused.

Society as a whole has an interest in seeingthat the least fortunate of its citizens who are accused of crimes are treated humanely and fairly. In this respect trials held promptlyenjoy the confidence of the public. As observed by Martin J.A. in R. v. Beason (1983), (ON CA), 36 C.R. (3d) 73(Ont. C.A.): “Trials held within a reasonable time have an intrinsic value. The constitutional guarantee enures to the benefit of society asa whole and, indeed, to the ultimate benefit of the accused ...” (p. 96).

In some cases, however, the accused has no interest in an earlytrial and society’s interest will not parallel that of the accused. There is, as well, a societal interest that is by its very nature adverse to the interests of the accused. In Conway [(SCC), [1989] 1 SCR 1659], a majority of this Court recognized that the interests of the accused must be balanced by the interests ofsociety in law enforcement.

This theme was picked up in Askov [ (SCC), [1990] 2 SCR 1199] in the reasons of Cory J.who referred to “a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to thelaw” (pp. 1219-20). As the seriousness of the offence increases so does the societal demand that the accused be brought to trial. . . .

[19] In Godin, the Supreme Court of Canada reaffirmed the Morin factors and reiterated the manner in which the balancing ofthose factors should occur. In

summary, the determination of whether there has been a breach of an accused’s s. 11(

b) right requires atrial judge to balance the various factors identified in Morin, including the explanations for the delay and any prejudice to the accused,with the individual and societal interests which s. 11(

b) is designed to protect. [20] The Morin analysis begins with a consideration of the length of the delay, being the period from the charge (the date onwhich an information is sworn) to the end of the trial. Sopinka J stated (at p 789): . . . [An] inquiry [into the delay] should only be undertaken if the period is of sufficient length to raise an issue as to itsreasonableness.

If the length of the delay is unexceptional, no inquiry is warranted and no explanation for the delay is called for unlessthe applicant is able to raise the issue of reasonableness of the period by reference to other factors such as prejudice. . . . [21] Sopinka J provided some guidelines for determining whether an inquiry into the delay should be undertaken. Institutionalor systemic delay is the delay caused by the limits on institutional resources (see pp 794-800).

This is the period that runs from the timethat the parties are ready for trial or preliminary inquiry in the Provincial Court (the period of inherent delay) to the end of the trial. When there is a preliminary inquiry followed by a trial, the majority in Morin found that institutional delay in the range of 14 to 18months in total would not be unreasonable, being an institutional delay of eight to ten months to the committal for trial and six to eightmonths from the committal for trial to the completion of the trial. This time frame was confirmed in Godin at para 5. VI.

STANDARD OF REVIEW [22] The parties are not in agreement as to the applicable standard of review. Citing R v Tran (

L) et al, 2012 ONCA 18 at para19, 287 OAC 94, the accused argues that the characterization of the periods of delay and the ultimate decision concerning thereasonableness of the periods of delay are reviewable on a standard of correctness. The Crown argues that the final balancing of theprejudice to the accused with society’s interest in having a trial on the merits is a discretionary decision and is entitled to considerabledeference. For this, it relies on R v Byron (MC), 2001 MBCA 81 at para 10, 156 ManR (2d) 154; R v Evans (ED), 2014 MBCA 44 atpara 3, 306 ManR (2d) 9; and R v REW, 2011 NSCA 18 at paras 30-33, 298 NSR (2d) 154. [23] The grounds of appeal from a decision on a s. 11(

b) motion raise errors that can fall into four categories: (

i) errors of fact,including whether there was prejudice suffered by the accused; (ii) errors related to the articulation or application of the legal principles;(iii) errors in the assessment of the various periods of time, ascribing a legal character to them and allocating them to the variouscategories set out in Morin, which are errors in the application of the legal principles to the facts that are particular to a s. 11(

b) analysis(an error in the application of the Morin factors); and (iv) errors in the balancing of the relevant Morin factors with the interest of theaccused and society in having a trial within a reasonable time and society’s interest in having the matter tried on its merits, to come to theultimate conclusion as to whether the delay was reasonable (an error in the ultimate conclusion regarding the reasonableness of thedelay). [24] The appellate courts have been consistent as to the standard of review to be applied to the first three categories: (

i) errors of fact, including whether there was prejudice to the accused, are reviewed on the standard of palpable and overriding error(see, for example, R v Austin (

D) et al, 2009 ONCA 329, 248 OAC 189; R v Schertzer (

J) et al, 2009 ONCA 742, 255 OAC 45, leave toappeal to SCC dismissed, [2010] SCCA No 3 (QL); R v Khan (K), 2011 ONCA 173, 277 OAC 165, leave to appeal to SCC dismissed,[2011] SCCA No 195 (QL); Tran at para 19; R v Horner (JJ), 2012 BCCA 7 at para 70, 314 BCAC 272; R v Widdifield (RF), 2014BCCA 170 at para 76, 354 BCAC 237; R v Sanghera (

B) et al, 2014 BCCA 249, 357 BCAC 175; R v Nwanebu (UC), 2014 BCCA 387at para 34, 362 BCAC 166; R c Jean-Jacques, 2012 QCCA 1628 at para 7 (QL); R c Camiran, 2013 QCCA 452 at para 20 (QL); R vCD, 2014 ABCA 333 at para 26, 584 AR 222; R v Dias (GF), 2014 ABCA 402, 588 AR 102; R v MacPherson, 2015 ABCA 139 at para17 (QL); REW; R v Anderson (T), 2013 SKCA 92 at para 120, 423 SaskR 61; and R v Walker (N), 2013 SKCA 95 at para 23, 423 SaskR125); (ii) errors regarding the articulation and application of the legal principles are reviewed on the standard of correctness (see, for example,Byron at para 10; R v Koruz et al, 1992 ABCA 144 , 125 AR 161; Evans; REW at para 31; and R v MacIntosh (EF), 2011 NSCA111, 310 NSR (2d) 274, leave to appeal to SCC dismissed, 2013 SCC 23, [2013] 2 SCR 200); and (iii) errors in the assessment, characterization and allocation of the Morin factors are reviewed on the standard of correctness (see, forexample, R v Chatwell (1998), (ON CA), 38 OR (3d) 32; R v Qureshi (

F) et al (2004), (ON CA),192 OAC 50; R v NNM (2006), (ON CA), 209 OAC 331 at para 6; Austin; Schertzer; Khan; R v Milani (D), 2014ONCA 536 at para 24, 320 OAC 384; Horner at para 70; Widdifield at para 76; Sanghera at para 63; Nwanebu at para 34; Jean-Jacquesat para 6; Camiran; R v Boisvert, 2014 QCCA 191 at para 12 (QL); CD at para 26; Dias at para 10; MacPherson at para 17; R vPidskalny (WP), 2013 SKCA 74 at para 12, 417 SaskR 124; Anderson at para 120; Walker at para 23; and REW at para 35. [25] A review of the jurisprudence regarding the fourth category, being errors in the ultimate conclusion of the reasonablenessof the delay, shows that appellate courts are, at present, split on the applicable standard of review. [26] On the one hand, the courts in Ontario and British Columbia have, at least recently, adopted the standard of correctnessfor this fourth category of error. (See, for example, from Ontario: R v Cranston (

R) et al, 2008 ONCA 751, 244 OAC 328, leave toappeal to SCC dismissed, [2009] SCCA No 326 at para 35 (QL); R v Nadarajah (

K) et al, 2009 ONCA 118 at para 31, 245 OAC 243;Schertzer at para 71; Austin at para 44; Tran at para 19; R v Nguyen (T), 2013 ONCA 169 at para 47, 303 OAC 29; R v Konstantakos(G), 2014 ONCA 21 at para 5, 315 OAC 123; KGW at para 29; and from British Columbia: Sanghera at para 112; and Nwanebu at para34.)

[27] On the other hand, the courts in Saskatchewan, Manitoba and Nova Scotia have taken the position that arriving at theultimate conclusion involves the balancing of various competing interests which is a discretionary decision by the trial judge that isentitled to deference and attracts a high standard of review.

Thus, barring an underlying error in one or more of the first three categories,the trial judge’s ultimate conclusion on the reasonableness of the delay will be upheld unless it is unreasonable. (See, for example, fromManitoba: R v Deslauriers (GJ) et al (1992), (MB CA), 83 ManR (2d) 7 at para 12; R v Loewen (JK) (1998), (MB CA), 131 Man R (2d) 217 (CA) at paras 57-59; Byron at paras 2, 10; Evans at para 3; and R v Roulette (KT), 2015MBCA 9 at paras 16, 42, 315 Man.R. (2d) 96; from Nova Scotia: REW at para 33; MacIntosh at para 100; and from Saskatchewan:Pidskalny at para 12; Walker at paras 23, 42; and R v Wilson (SRG), 2013 SKCA 128 at para 36, 427 SaskR 63.) [28] While Canadian appellate courts are not, at the present, consistent in the standard of review for this fourth category, ananalysis of the decisions that adopt the correctness standard reveals that they have only overturned a trial judge’s decision on the ultimateconclusion and the reasonableness of the delay when the appeal court has determined that the trial judge committed a relevant,underlying legal error or an overriding factual error. [29] Further, the application of the deference standard to the ultimate conclusion regarding the reasonableness of the delayonly occurs if there are no underlying legal errors or overriding factual errors.

If such errors are found and are material, then deference isno longer owed and the appellate court must step in to reassess the delay periods and re-evaluate the question of whether there has beenan unreasonable delay. [30] Thus, while two standards have been articulated for the review of the trial judge’s ultimate conclusion, in practice theremay be little or no difference in the outcomes. That said, clarification of this inconsistency is required and may occur in the near future,as the Supreme Court of Canada has granted leave to appeal two s. 11(

b) decisions, KGW and R v Jordan (BR) et al, 2014 BCCA 241,357 BCAC 137. VII. ANALYSIS The Grounds of Appeal [31] The analysis begins with a review of the grounds of appeal. [32] The first ground of appeal relates to the trial judge’s finding that the accused waived the two and one-half month periodbetween July 21, 2010, and October 7, 2010. The trial judge found that “[d]efence counsel took the position that she would not agree toa date [for the preliminary inquiry] until the medical evidence concerning the complainant’s injuries was provided” (at para 8).

I agreewith the accused that this finding is not supported by the evidence before the court. [33] The evidence is that, on July 23, 2010, the Crown attorney created a file note stating, “[s]ubject to all the disclosure beingsorted out, and given the scheduling issues, I would suggest that on the 27th both [victim’s] matters be set down together to proceed toprelim inquiry. We will need at least TWO days probably so need a [case management conference] asap.” On August 9, 2010, theCrown’s office contacted defence counsel offering several dates between September 28 and November 1 for a case managementconference.

Defence counsel replied the same day, confirming the first available date. The case management conference took place onSeptember 28, 2010, as scheduled, at which time the preliminary inquiry was scheduled for April 28, 2011. This date was confirmed incourt on October 7, 2010. [34] Thus, while the accused was asking for the disclosure of the complainant’s medical records, there is no evidence that herefused to set any dates pending the receipt of this disclosure.

It is, therefore, clear that the trial judge made a palpable and overridingerror in finding that the accused would not agree to a date for the preliminary inquiry until the medical evidence concerning thecomplainant’s injuries was provided. [35] The trial judge’s factual finding led her to find that “by refusing to set preliminary inquiry dates due to the absence ofmedical evidence, the accused should be taken to have waived any delay after July 21, 2010, when disclosure was otherwise complete”(at para 20).

Given that the accused did not refuse to set preliminary inquiry dates, the trial judge was not correct in her assessment thathe had waived this period of delay. [36] The second ground of appeal relates to the almost five-month delay in the completion of the preliminary inquiry andwhether it should be characterized as institutional delay attributable to the Crown or inherent delay. [37] The only evidence as to the cause of this delay is found in an email message from the preliminary inquiry judge tocounsel dated March 30, 2011, in which he states, “[s]ince the taking of evidence and submission of your briefs I took an unexpectedleave of absence and this is my first week back in court.” While the trial judge relied on Tovey, and found this to be “an unplanned,unforeseen and unexpected circumstance, without any obvious solution, simply attributable to the vicissitudes of life” (at para 25), thedefence argues that the evidence is too vague and does not provide any explanation as to the reason for the delay that would enable it tobe characterized as inherent delay. [38] While the courts in Tovey and MacDougall were dealing with evidence that the judge was ill, those comments were notlimited to a judge becoming ill but apply to any leave taken by a judge for personal reasons.

As was stated in MacDougall (at paras 45-46): . . . [T]he inherent time requirements of a case are not limited to commonplace delays which occur in every situation, but mayinclude delay due to extraordinary and unforeseeable events: Allen [ (ON CA), 92 OAC 345]. A trial judge falling ill may be such an event. Judges being human, it is inevitable that they will occasionally fall ill. Where thisoccurs and where it is not reasonable for the Crown to immediately apply to have the judge replaced (see below), the delay due to thejudge’s illness may be regarded as part of the inherent time required to complete the case.

At the point, however, where it is reasonablefor the Crown to apply to have the judge replaced, the inherent delay due to the judge’s illness changes to Crown delay.

[emphasis added] [ 39 ] The court in MacDougall summarized the Crown’s obligation to respond to a judge becoming unavailable to continue a matter as follows (at para 52): In

summary, where the trial judge falls ill and is expected to return, the Crown must balance two competing factors: (1) the need to proceed with the utmost care and caution when considering the removal of a judge seized with a case in order to protect judicial independence and fairness to the accused, and (2) the need to protect the accused’s s. 11(

b) rights and prevent undue prejudice to the accused. The practical question is whether the apprehension of a violation of the accused’s s. 11(

b) rights has reached the stage where it outweighs the general rule that the judge seized of a case should conclude it. Where the apprehension of a s. 11(

b) violation outweighs this general rule, the Crown has a duty to apply to remove and replace the seized judge. If the Crown fails to do so, any resulting delay will be counted against the Crown in the s. 11(

b) assessment. [ 40 ] The question of whether the delay should have been classified as inherent or Crown delay is a question of law, to be reviewed on the standard of correctness. [ 41 ] In this case, while there is no evidence that the preliminary inquiry judge was ill, there is evidence that he was unexpectedly unavailable for personal reasons. That evidence was not challenged, nor was it contradicted by or inconsistent with any other evidence.

It stands as evidence of an extraordinary and unforeseen event as contemplated in MacDougall , and I find that this was sufficient to engage the analysis in MacDougall . [ 42 ] In determining whether the delay was so long that the Crown should have applied to have the preliminary inquiry judge replaced, the relevant facts are that he had heard all of the evidence in the preliminary inquiry and requested and received the parties’ briefs. Given that the issue was the credibility of the witness, the assignment of a new judge would have entailed a new preliminary inquiry, which would have taken time to

schedule and hold. Further, while the delay, itself, was close to five months, from November 22, 2011, to April 11, 2012, that interval included the delay occasioned by the Christmas and New Year’s holidays, which, as defence counsel argues on another point, brings with it some inherent delay. [ 43 ] Weighing all of these factors, I would not find that the delay occasioned by the temporary unavailability of the preliminary inquiry judge for unexpected personal reasons was sufficiently long that the Crown should have applied to have him replaced.

There is no evidence that a new preliminary inquiry could have been scheduled and completed at any earlier date. Thus, I would find that the trial judge was correct in finding that this delay was an inherent delay and not a Crown delay. [ 44 ] The third ground of appeal relates to the delay in the commencement of the trial from November 26, 2012, to February 26, 2013, which the trial judge attributed to the defence.

The characterization of this delay raises a question of law which is to be reviewed on the standard of correctness. [ 45 ] The Supreme Court of Canada considered the characterization of delay attributable to defence counsel unavailability in Godin , wherein the court stated (at paras 21, 23): The majority in the Court of Appeal found defence counsel responsible for about a month and one-half of delay because he was not available for the first offered date for the rescheduled preliminary inquiry.

With respect, I agree with Glithero R.S.J. ( ad hoc ), dissenting in the Court of Appeal, that this placed too great a responsibility on defence counsel in the circumstances of this case. The majority of the Court of Appeal took this as a finding by the trial judge, with which it agreed, that the defence had waived this one and a half month period. Respectfully, I do not agree that the trial judge ruled in this way and I do not agree that it would have been correct to do so. . . .

Moreover, I respectfully disagree that this period of delay should be treated as waived by the defence in the circumstances of this case. Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(

b) purposes, require defence counsel to hold themselves in a state of perpetual availability. Here, there is no suggestion that defence counsel was unreasonable in rejecting the earlier date. Indeed, his prior conduct in seeking earlier dates for the preliminary inquiry – efforts which were ignored – suggests that he wished to proceed expeditiously.

I respectfully agree with Glithero R.S.J., dissenting in the Court of Appeal, at para. 53, that: “To hold that the delay clock stops as soon as a single available date is offered to the defence and not accepted, in circumstances where the Crown is responsible for the case having to be rescheduled, is not reasonable.” [ 46 ] The evidence is that the dates of November 26-28, 2012, were set on June 12, 2012, subject to defence counsel being able to rearrange another matter.

She was not able to make herself available at that time, so the later dates of February 26, 2013 to March 1, 2013, were set on June 28, 2012, being the next pre-trial. The uncontested affidavit evidence of the accused is: . . . Those were the earliest dates at which point all of the calendars could coincide. My counsel advised me that she had earlier dates available, but either the Court or Crown were not available.

Furthermore, some of the dates that were offered conflicted with my counsel’s trial calendar where clients were in custody. [ 47 ] While there is no evidence that defence counsel in this case asked that matters be moved forward, the evidence does show that, when offered dates on prior occasions, defence counsel chose the earliest date. For example, on August 9, 2010, the Crown offered

four dates for a case management conference between September 28, 2010, and November 1, 2010, and defence counsel replied on the same date, choosing the earliest date. On May 30, 2012, the Crown offered ten pre-trial dates between June 12, 2012, and July 12, 2012, and defence counsel chose the first date.

Further, as defence counsel points out, the period of the delay includes the Christmas and New Year’s holidays, which should not be attributed to the accused. [ 48 ] As in Godin , I would find in this case that there is no evidence that defence counsel acted unreasonably in refusing the trial dates of November 26-28, 2012, or in contributing to the matter being delayed to February 26, 2013. Thus, I would find that the trial judge erred in characterizing this delay as being attributable to the defence.

I would further find that this delay should not stop the delay clock, as a result of which I would attribute this to institutional delay. [ 49 ] The fourth ground of appeal relates to the assessment of the prejudice occasioned to the accused by the delay. [ 50 ] In Morin , Sopinka J stated as follows (at p 801): . . . [P]rejudice to the accused can be inferred from prolonged delay. . . . Accordingly, in an individual case, prejudice may be inferred from the length of the delay. The longer the delay the more likely that such an inference will be drawn.

In circumstances in which prejudice is not inferred and is not otherwise proved, the basis for the enforcement of the individual right is seriously undermined. [ 51 ] Sopinka J went on to note that many accused do not want a speedy trial, so that delay works to their advantage. Thus, “[a]ction or non-action by the accused which is inconsistent with a desire for a timely trial is something that the court must consider. . . .

Inaction may, however, be relevant in assessing the degree of prejudice, if any, that an accused has suffered as a result of delay” (at p 802). [ 52 ] The court again dealt with the concept of prejudice in Godin , stating (at paras 31, 34, 36-38): The question of prejudice cannot be considered separately from the length of the delay. . . . The majority of the Court of Appeal acknowledged that these charges had been hanging over the appellant’s head for a long time.

It was reasonable, in my view, to infer as the trial judge did that the prolonged exposure to criminal proceedings resulting from the delay gave rise to some prejudice. . . . The nature of the risk to the appellant’s ability to make full answer and defence was well set out by Glithero R.S.J., dissenting in the Court of Appeal, at paras. 69-74. He noted that the case was likely to turn on credibility and, in particular, on cross-examination of the complainant and her boyfriend in light of the DNA test results and prior statements.

The dissenting judge concluded that the extra passage of time made it more likely that the ability of the appellant to cross-examine effectively had been diminished. It is difficult to assess the risk of prejudice to the appellant’s ability to make full answer and defence, but it is also important to bear in mind that the risk arises from delay to which the appellant made virtually no contribution. Missing from the analysis of the majority of the Court of Appeal, in my respectful view, is an adequate appreciation of the length of the delay in getting this relatively straightforward case to trial.

As noted already, prejudice may be inferred from the length of the delay.

Moreover, it does not follow from a conclusion that there is an unquantifiable risk of prejudice to the appellant’s ability to make full answer and defence that the overall delay in this case was constitutionally reasonable. . . . [ 53 ] The Ontario Court of Appeal has held, in several cases, that the inferred prejudice of a three-year delay in getting to trial is to be characterized as significant prejudice. (See KGW at paras 54-57; R v Ralph (A) , 2014 ONCA 3 at para 16 , 313 OAC 384; R v Steele (X) , 2012 ONCA 383 , 291 OAC 336; R v BH , 2009 ONCA 731 (QL)) [ 54 ] In George , this court agreed with the trial judge that a 39-month delay between the charges and the beginning of the trial was unreasonable, even though there was no actual prejudice attributable to the delay.

In coming to that conclusion, Steel JA, for the court, stated (at paras 74-75): Prejudice is more likely to be inferred from a lengthy delay where the accused’s actions did not in any way contribute to the delay. . . . In the instant case, the trial judge held that prejudice could be inferred from the length of the delay, especially given the lack of adequate explanation for the delay and the actions of the Crown. I agree with the trial judge.

If prejudice could not be inferred from the length of the delay in appropriate cases, then the right to a trial in those cases within a reasonable period of time is rendered meaningless. [ 55 ] In this case, the trial judge found that, while the accused alleged actual prejudice to his professional practice and his income and from the enormous stress that he was under, these claims were not adequately proved.

As regards inherent prejudice, she stated (at para 29): As for the impact of the delay on his right to a fair trial, no one can deny that significant stress is a likely consequence of something as serious as criminal charges in the life of an average citizen. The longer charges are outstanding, the greater the impact.

So, clearly, some prejudice is inherent from any delay. [ 56 ] I would agree with the accused that the trial judge’s finding of “some” prejudice inherent from “any” delay does not accurately reflect the recent jurisprudence. Where the delay from the charge to the commencement of the trial is in the area of three years, the trial is not complex and none or little of that delay is attributable to the accused, the inherent prejudice is significant. This is moreso where the, or one of the, main issues is the credibility of the witnesses and their ability to recall events and details accurately.

Thus, I would find that the trial judge erred in her assessment of the degree of inherent prejudice to the accused’s s. 11(

b) right occasioned by the delay. [ 57 ] The fifth ground of appeal arises from the trial judge’s failure to refer to the factor of society’s interest in having trials completed within a reasonable period of time. As the Crown has argued, it is not necessary for a trial judge to restate every applicable legal principle in her reasons.

Given that she did refer to both the Morin and George decisions in her reasons, that this principle is discussed in those decisions, and there is nothing in her reasons that is contrary to that principle, she can be taken to have been aware of and considered it in coming to her decision.

While it would have been preferable if she had specifically included it in her analysis, I would not find that she erred in this case by failing to do so. [ 58 ] The last ground of appeal is that the trial judge erred in her weighing or balancing of the factors and her ultimate conclusion as to the reasonableness of the delay, which led to an erroneous finding that the delay was not unreasonable.

While I have already noted that there is a difference among appellate courts as to the appropriate standard of review to apply in reviewing the trial judge’s ultimate conclusion, I have concluded that, in this case, that difference does not come into play. [ 59 ] As noted above, the trial judge has made three errors in her assessment of the Morin factors, and I am satisfied that these are material errors in that they are capable of affecting the ultimate conclusion as to the reasonableness of the delay.

Thus, even if the applicable standard of review is that of deference, deference is not owed if there is a palapable and overriding error in the underlying factual findings or errors of law in the application of the Morin factors. Having found both, no deference is owed to the trial judge’s ultimate conclusion as to the reasonableness of the delay, and this court must undertake its own balancing of the Morin factors.

I must add that I would have come to this same conclusion based on the first two errors, without a consideration of whether there was an error in the trial judge’s assessment of the prejudice to the accused. Balancing the Morin Factors [ 60 ] The first factor to consider is the threshold question of whether the length of the delay between the date of the charges and the conclusion of the trial is prima facie unreasonable, which is determined by looking at the complexity of the case and the steps taken to get the matter to trial.

Notwithstanding that this was a two-step trial involving both a preliminary inquiry and judge-alone trial, the fact that it took 37 months (from the date of the charges on January 29, 2010, to the completion of the trial on March 4, 2013) is, prima facie, unreasonable for what was, in essence, a relatively simple two-witness trial with essentially no delay for pre-trial motions. (See, for example, Godin and KGW .) Having found that the delay was prima facie unreasonable, it is necessary to continue with the more detailed analysis set out in Morin . [ 61 ] The second factor asks whether the accused waived any periods of delay.

The trial judge found that one period of two and one-half months was waived, which I have found was an error on her part. Thus, there were no periods of delay waived by the accused. [ 62 ] The third factor looks at the reasons for the delay, which encompasses a review of five issues. The first issue is the determination of the inherent time delay, being the time between the date of the charges and the date that the parties are ready for trial or preliminary inquiry.

This is determined by the complexity of the case and whether the trial will be preceded by a preliminary inquiry. [ 63 ] In this case, the disclosure was complete except for the medical reports and the parties were ready to set a date for the preliminary inquiry on July 21, 2010, so that the inherent delay was from January 29, 2010, to July 21, 2010, a period of six months.

This is very generous to the Crown, given that it took the Crown over three months to respond to defence counsel’s request for very basic disclosure that consisted of the complainant’s statements, police notes, witness statements and criminal records – all material that was in the possession of the Crown or the police before or shortly after the accused was arrested on the second set of charges in late February 2010. [ 64 ] The second issue is whether the trial was delayed by any voluntary actions of the accused, which would include delays to retain defence counsel, pre-trial motions, change of venue motions, attacks on wiretap packets, etc.

While there were two pre-trial motions, there is no indication that they delayed the commencement of the trial. Both were argued, based on affidavits without calling viva voce evidence, on February 21, 2013, and the trial commenced on February 26, 2013. [ 65 ] The trial judge found that a delay of three months should be attributed to the accused because defence counsel was not available to start the trial on the first date offered.

I have found that this assessment of the delay was not correct, and this delay should not be assessed as defence delay but as institutional delay. [ 66 ] The third issue is whether the trial was delayed by any actions of the Crown. The preliminary inquiry was originally scheduled to start on April 28, 2011, but was adjourned to November 22, 2011, when it was discovered that police notes had not been disclosed to the defence.

As the trial judge found, this seven-month delay is due to the actions of the Crown and is, therefore, attributable to the Crown. [ 67 ] The fourth issue deals with delays caused by limits on institutional resources, which is the delay beyond the inherent delay. The majority in Morin found that a reasonable institutional delay in a trial that included a preliminary inquiry was 14 to 18

months, being eight to ten months in the Provincial Court and six to eight months in the trial court (see Morin at pp 798-99). While themajority in Morin stated that this was a guideline that could be adjusted according to local conditions, no evidence was led to suggestthat this guideline would not apply in Manitoba. [68] The fifth issue looks at whether there are other reasons for the delay.

I found that the five-month delay occasioned by theunexpected unavailability of the preliminary inquiry judge during the preliminary inquiry was an inherent delay, which increases theinherent delay prior to the preliminary inquiry from six months to eleven months. [69] In this case, the institutional delay and delay attributable to the Crown is 26 months, being the actual time to conclude thetrial (37 months) less the inherent delay (11 months). This far exceeds the reasonable delay of 14 to 18 months in the Morin guidelines.

While the evidence explains parts of the delay, it does not justify it. [70] The fourth Morin factor is that of prejudice to the accused. This was essentially a two-witness trial with the major issuebeing the credibility of the complainant and the accused. In Godin, the court accepted that “the extra passage of time made it morelikely that the ability of the appellant to cross-examine effectively had been diminished” (at para 36). The trial judge in this case madeno mention of delay diminishing the effect of cross-examination in her assessment of the prejudice to the accused.

Further, as I foundearlier, she erred in failing to give adequate weight to the inherent prejudice in this case in her ultimate determination of thereasonableness of the delay. [71] The final step involves a balancing of the assessment of the Morin factors with the accused’s right under s. 11(b), thesocietal interest in having serious charges tried on their merits and the societal interest in having the trial completed within a reasonabletime. [72] The facts in Godin are strikingly similar to the facts in this case: - as in Godin, this was not a complex case; - the delay in bringing this case to trial, being 37 months, was longer than the 30-month delay in Godin; - in Godin, the court found that the accused pushed for earlier dates; in this case, the accused did not push for earlier dates, but,likewise, he was not responsible for any delay and the record shows that, on most occasions when offered a range of dates, his counselselected the earliest date; - in Godin, the Crown was responsible for a five-month delay in the preliminary inquiry, while, in this case, the Crown wasresponsible for a seven-month delay in the preliminary inquiry; - in Godin, as in this case, none of the delay was waived by the accused or otherwise attributed to the defence; - finally, in Godin, the accused had been charged with sexual assault, unlawful confinement and threatening to kill his girlfriend –charges described by the majority in the Ontario Court of Appeal as “very serious and the alleged circumstances that gave rise to thecriminal charges were, from the complainant’s perspective, violent, terrifying and probably deeply damaging” (see 2008 ONCA 466 atpara 48, 237 OAC 324) – charges that are, both in nature and seriousness, very similar to those in this case. [73] The court in Godin upheld the trial judge’s finding that the delay was unreasonable, concluding as follows (at paras 39-41): This was not a complex case.

A delay of 30 months in bringing it to trial is striking, given that the delay was virtually entirelyattributable to the Crown or institutional delay and was largely unexplained. . . . As McLachlin J. (as she then was) put in her concurring reasons in Morin, at p. 810, “[w]hen trials are delayed, justice may bedenied. Witnesses forget, witnesses disappear. The quality of evidence may deteriorate. Accused persons may find their liberty andsecurity limited much longer than necessary or justifiable.

Such delays are of consequence not only to the accused, but may affect thepublic interest in the prompt and fair administration of justice.” Of course, there is a strong societal interest in having serious charges tried on their merits. However, the progress of this case wasdelayed to such a degree that the appellant’s constitutional right to be tried within a reasonable time was violated. . . . [74] I would find that the same conclusion is applicable in this case.

The delay in bringing this relatively simple matter totrial, being 37 months from the date of the charges to the conclusion of the trial, with no delay being attributed to the accused, wasunreasonable. VIII. CONCLUSION [75] Having found that the delay was unreasonable, I would grant the accused’s appeal on this basis and find that theaccused’s right under s. 11(

b) of the Charter to a trial within a reasonable time was breached. [76] It is well-accepted that the minimum remedy for such an infringement is a stay of proceedings (see, for example, R vRahey, (SCC), [1987] 1 SCR 588; R v Kporwodu (2005), (ON CA), 75 OR (3d) 190 (CA); R vThomson (L), 2009 ONCA 771, 255 OAC 268; REW; and MacIntosh). I would, therefore, grant a stay of proceedings on all chargesexcept those to which the accused pled guilty at the beginning of the trial.

JA I agree: JA I agree: JA