R. v. MacIntosh, 2011 NSCA 111

NOVA SCOTIA COURT OF APPEAL Citation: R. v. MacIntosh, 2011 NSCA 111 Date: 20111208 Docket: CAC 338535; CAC 333361 Registry: Halifax Between: Ernest Fenwick MacIntosh Appellant v. Her Majesty the Queen Respondent Restriction on Publication: Pursuant to s. 486.4 of the Criminal Code Judge: The Honourable Justice Duncan R. Beveridge Appeal Heard: June 8, 2011 Subject: Charter of Rights – right to a trial within a reasonable period of time. Criminal Law – scope of appellate review of convictions based on errors in law, misapprehension of evidence and unreasonable verdict.

Summary: The appellant was charged in 1995 based on alleged incidents in the early 1970's of indecent assault and gross indecency. He was working in India in 1995, having been transferred there by his employer a year earlier. He was extradited from India in 2007. The appellant applied to have the charges stayed due to the 14 year delay. The judge who heard the application dismissed it, on the basis of insufficient evidence that the appellant was prejudiced by the delay. The judge also found that almost all of the delay was caused by the appellant.

The appellant was tried before a different judge who convicted the appellant of some of the offences. The appellant complained that the trial judge misapprehended important evidence and made errors of law. Issue: Did the judge who heard the application for a stay apply the correct principles? Did the trial judge misapprehend important evidence and otherwise err in law? Result: The appeals from conviction are allowed. The convictions are quashed and a stay of proceedings is entered. The

judge who heard the application for a stay did not apply the correct principles in his analysis. He was wrong to blame the appellant as the cause of the 14 year delay when it was the duty of the authorities to bring the appellant to trial. The appellant did nothing to hide from or hinder the authorities. The judge should have found that the appellant ’ s right to be tried within a reasonable period of time guaranteed by s. 11(

b) of the Canadian Charter of Rights and Freedoms had been infringed by reason of the delay. The only remedy for such infringement is a stay of proceedings. Even if the charges were not stayed, the convictions cannot stand. The judge presiding at the appellant ’ s trial erred in law in a number of respects. In addition, he misapprehended the evidence given by the complainants which played an essential role in his reasoning process. This information sheet does not form part of the court ’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 63 pages.

NOVA SCOTIA COURT OF APPEAL Citation: R. v. MacIntosh, 2011 NSCA 111 Date: 20111208 Docket: CAC 338534; CAC 333361 Registry: Halifax Between: Ernest Fenwick MacIntosh Appellant v. Her Majesty the Queen Respondent Editorial Notice Identifying information has been removed from this electronic version of the judgment.

Restriction on publication: Pursuant to s. 486.4 of the Criminal Code Judges: Hamilton, Beveridge and Bryson, JJ.A. Appeal Heard: June 8, 2011, in Halifax, Nova Scotia Held: Appeals from conviction are allowed, convictions quashed, and a stay entered on all charges, per reasons for judgment of Beveridge, J.A.; Hamilton and Bryson, JJ.A. concurring. Counsel: Brian Casey and David Bright, Q.C., for the appellant Jennifer A. MacLellan, for the respondent 486.4

(1) Order restricting publication – sexual offences – Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with stepdaughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(

i) to (iii).

Reasons for judgment : INTRODUCTION [ 1 ] The appellant is Ernest Fenwick MacIntosh. Mr. MacIntosh was extradited from India in 2007 to face over 40 charges of having sexually abused nine complainants between 1970 and 1977. He eventually elected trial by Supreme Court Judge. Some charges did not make it past the preliminary inquiry. [ 2 ] The Indictment filed in the Nova Scotia Supreme Court contained 36 counts (18 of indecent assault and 18 of gross indecency) involving six complainants. The appellant applied to have the proceedings stayed based on pre and post-charge delay.

The application was heard by the Honourable Chief Justice Kennedy. He dismissed it in a written decision released on March 19, 2010 ( 2010 NSSC 105 ). [ 3 ] By consent, the counts in the Indictment with respect to three of the complainants were then severed. This resulted in two Indictments and two trials. The first trial held was before the Honourable Justice Simon MacDonald July 5-9, 2010. In an oral decision, Justice MacDonald convicted the appellant on 14 of the 26 counts. His reasons are reported ( 2010 NSSC 300 ).

Justice MacDonald sentenced the appellant to four years imprisonment less credit for time spent on remand in Canada. Ancillary orders for a DNA sample and a ban on possessing firearms were made. MacDonald J. declined to make an order restricting the appellant from being at or near public parks under s. 161 of the Criminal Code or that he comply with the requirements of the Sex Offender Information Registration Act ( SOIRA ) pursuant to s. 490.012 of the Criminal Code . [ 4 ] Mr. MacIntosh complains that Kennedy C.J.S.C. was wrong not to stay the proceedings.

The appellant also appeals against the conviction and sentence decisions by MacDonald J. The Crown cross-appeals the sentencing decision, alleging MacDonald J. erred in not ordering Mr. MacIntosh comply with the requirements of SOIRA pursuant to s. 490.012 of the Criminal Code . [ 5 ] Mr. MacIntosh was tried on the other Indictment before Chief Justice Kennedy in December 2010. In an oral decision of January 31, 2011, Kennedy C.J. convicted the appellant on four of the ten counts ( 2011 NSSC 340 ). A sentence of 18 months consecutive was imposed on April 13, 2011. Mr.

MacIntosh has also appealed from those convictions and the sentence imposed. Filings for that appeal have not yet been completed. [ 6 ] I am satisfied that the analysis of the application to stay the proceedings based on post-charge delay was flawed. In my opinion, the motions judge should have found the appellant’s right guaranteed by s. 11(

b) of the Charter was infringed and stayed the proceedings. I would therefore quash the convictions and enter a stay of proceedings. [ 7 ] With respect to the appeal from conviction, I am satisfied that the trial judge erred in a number of respects, including misapprehending important evidence. The judge relied on that misapprehended evidence in convicting the appellant. Even if the charges were not stayed, the convictions cannot stand, and in that case, I would allow the appeal and order a new trial. It is unnecessary to deal with the appeals from sentence. THE APPLICATION TO STAY THE PROCEEDINGS [ 8 ] The appellant’s application for a stay of proceedings was based on ss. 7 and 11(

b) of the Canadian Charter of Rights and Freedoms .

Section 7 was relied upon with respect to pre-charge delay, while s. 11(

b) was relevant to the delay from the date the

charges were laid to the date of trial. [9] To obtain a stay for pre-charge delay the appellant needed to establish actual prejudice to his right to a fair trial. In otherwords, the delay created a situation where he could not truly make full answer and defence to the allegations. [10] With respect to examining delay that occurs after a charge is laid, the Supreme Court of Canada in R. v. Morin, (SCC), [1992] 1 S.C.R. 771, [1992] S.C.J. No. 25 (Q.L.) affirmed the framework set out in R. v. Askov, (SCC),[1990] 2 S.C.R. 1199, [1990] S.C.J. No. 106 (Q.L.) on the appropriate approach in assessing whether the post-charge delay amounts toan infringement of the right guaranteed by s. 11(

b) to be tried within a reasonable period of time . In general, it involves an examinationof the length of the delay and a balancing of the interests s. 11(

b) is designed to protect with the factors that caused the delay and societalinterests in having a trial on the merits (Morin, para. 31). The interests s. 11(

b) is designed to protect are impairment of the right toliberty, security of the person, and the ability to make full answer and defence. Prejudice can be inferred from the fact of a prolongeddelay. Prejudice can also be established by evidence with respect to those interests. [11] Before Kennedy C.J.S.C., the appellant argued that his ability to make full answer and defence was prejudiced due to the lossof evidence. The evidence said to be lost included the death of a number of witnesses, and documentary evidence no longer available.

The Chief Justice found that the unavailability of the lost evidence was not shown on a balance of probabilities to be prejudicial to theappellant’s fair trial rights. In addition, once in Canada, any delay was caused by the appellant. Kennedy C.J.S.C. also found that anyprejudice the appellant suffered by reason of his treatment in jail, unfair press, and restrictive bail conditions was caused, for the mostpart, by the fact of being charged rather than delay. [12] The appellant’s grounds of appeal in relation to the dismissal of his application for a stay based on the Charter are as follows: 15.

Prior to trial, Macintosh made an application pursuant to s. 7 and s. 11 (

b) of the Charter for a stay as a result of the prejudicebecause crucial evidence to make out his defence had been lost – in particular, the motor vehicle records to establish that he owned aBlack LTD at the time of the alleged offences and the only beige motor vehicle he owned and the only baby blue jeep he owned were notpurchased until after the dates when no further contact occurred with the complainants. The learned applications judge found that theabsence of those records did not prejudice the appellant’s defence.

However, the learned trial judge found the defence unconvincingbecause “the vehicle information supplied does not cover all the time frame in the indictment, [para. 58]; 16. The learned applications judge who decided the s. 7 and s. 11 application applied the wrong legal test to the application, failed todistinguish between the legal tests for s. 7 and s. 11, and erred in finding the time periods during which the accused was awaiting crowndisclosure were “delays attributable to the accused”;

Section 7 - Pre-Charge Delay [13] To understand the complaint by the appellant in ground 15, a brief overview of the complainant’s allegations and defenceresponse is helpful. [14] There were three complainants in the trial held before MacDonald J. Two were brothers (DRS and BS), the other, their firstcousin (JAH). DRS went to the police in 1995. He said he had been sexually assaulted by the appellant between 1970 and 1975.

Theassaults consisted of fondling and acts of oral sex at various locations including in a rooming house in Port Hawkesbury (FarquharHouse), a hunting cabin, the appellant’s car, boat, and a number of residences. DRS estimated that 75% of the assaults occurred in theappellant’s car. He described the car as being beige or tan in colour, either a Monte Carlo or similar car. [15] DRS said it was in 1994 or 1995 he discussed with his cousin JAH that he had been the victim of sexual assaults by theappellant. JAH said he had also been a victim.

After this conversation, JAH went to the RCMP in Port Hawkesbury in February 1995and gave a statement in which he described a single act of oral sex at the Sea King Motel in Bedford, Nova Scotia. At trial, JAH alsodescribed being picked up by the appellant in one of the appellant’s cars. JAH said the appellant had a blue Jeep Cherokee and a half tonJeep. He said the appellant drove him in the blue Jeep to the Farquhar House in Port Hawkesbury where fondling and oral sex occurred. JAH said the appellant used one of his cars, the Jeep, either the blue Jeep or the half ton Jeep, to take him to the Sea King Motel in

Bedford. The time frame for these allegations was sometime between 1971 and 1977. [ 16 ] The appellant denied that any sexual activity occurred between him and any of the complainants in the time frames alleged. He led evidence that contact between him and any of the complainants ceased when he had run for office in the provincial election of April 1974. The parents and relatives of the complainants were alerted at that time to rumours of inappropriate behaviour by the appellant. DRS was questioned by his parents. He denied any inappropriate contact.

The evidence was consistent that DRS, BS and JAH were forbidden from having contact with the appellant from that time frame forward. [ 17 ] The appellant testified he had consensual sexual encounters with DRS and JAH years later, when they were of an age to be legally able to consent. A vigorous defence was advanced. In addition to the evidence led in cross-examination of the Crown witnesses, there was the appellant’s denial, documents and viva voce testimony from others, all in an attempt to raise a reasonable doubt about the claims of sexual activity occurring in the time frames alleged in the Indictment.

In large measure, the defence sought to establish that the claimed assaults were improbable and that the details surrounding the incidents as described by the complaints could not be true. [ 18 ] The police did not inquire into motor vehicle records until 2000. At that time the information produced by the Registry of Motor Vehicles was scant. With one exception, the Registry was only able to provide a list of vehicles that had been registered to the appellant prior to February 1978.

The one transfer of vehicle ownership to or from the appellant prior to that date they could certify was his acquisition on December 22, 1978 of a 1973 Torino station wagon. Other vehicles, including a 1976 Jeep, were simply certified as having been transferred to the appellant “Prior to Feb. 1978 ”. [ 19 ] Defence efforts led to the production of a further certificate from the Registry that provided marginally more complete details of the vehicles that had been registered to the appellant prior to 1978. They were a 1976 Jeep, a 1975 Olds, a 1977 Peugeot and a 1979 Torino.

In addition, the appellant was able to produce the finance documents for the purchase of the 1975 Olds, showing his purchase of the vehicle from the dealer by way of a conditional sales contract on December 17, 1974. The appellant testified he never owned a Monte Carlo, but he could understand how the Olds might be confused with it.

In any event, he did not own the Olds until many months after contact with the family had been terminated – and hence had no opportunity to commit the offences in the vehicle described by DRS. [ 20 ] Similarly, the appellant denied any inappropriate contact with JAH in the time period set out in the Indictment. He admitted that in 1979 or 1980, while on a trip to Halifax to get building supplies, JAH came with him in his blue Jeep.

They spent the night at the Sea King Motel in Bedford and he had performed oral sex on JAH, but the act was entirely consensual. [ 21 ] What cars the appellant owned, and when, was relevant. Kennedy C.J.S.C. identified the loss of evidence as being potential witnesses who had died, and the unavailability of business, motor vehicle and police records. Kennedy C.J.S.C. adopted the Crown submission that prejudice from the unavailability of deceased witnesses was speculative.

With respect to the loss of records, he also accepted the Crown’s argument that there were sufficient records to enable the appellant to advance his defence. The existence of the appellant’s records, and those of the Registry of Motor Vehicles, negated his claim that lost evidence prevented him from being able to make full answer and defence. [ 22 ] The appellant now argues that the conclusion by Kennedy C.J.S.C. was not borne out by the analysis of MacDonald J. when the trial was held with respect to the complaints by DRS, JAH and BS.

Ground # 15 references para. 58 of the trial judge’s decision as demonstrating there was in fact prejudice to the right of the appellant to make full answer and defence. The appellant argues the trial judge found the defence unconvincing because the vehicle information supplied did not cover the time frames in the Indictment. With all due respect, I am not persuaded that the trial judge rejected the defence due to the lack of confirmation from documentary sources which vehicles were owned by the appellant.

I will explain. [ 23 ] The trial judge in fact made reference to the motor vehicle records on three occasions in the course of his reasons. Two are in reference to counts involving DRS as the complainant, and one where JAH was the complainant. Each reference was similar. They are as follows: [58] Counts #5 and #6 of the Indictment deal with incidents that are to have allegedly happened in the accused's car at Goose Harbour Road in Guysborough County. In assessing the totality of the evidence and relating it to Counts #5 and #6, I accept DRS’s evidence that

a lot of these incidents occurred in Mr. MacIntosh’s car. Besides denying this took place as explained by DRS, the defence, Mr. MacIntosh argues that it could not have happened in a vehicle as described by DRS because Mr. MacIntosh did not own a vehicle of that nature at that time, according to the exhibits tendered from the Motor Vehicle Department. However, in that regard, the vehicle information supplied does not cover all the time-frame in the Indictment.

I find when I consider the totality of the evidence, especially that of DRS, and as I noted his evidence about the Goose Harbour Road incidents, that he seemed to recall a change in the way his life was with these incidents. His life changed from not being able to ejaculate and then being able to ejaculate as one of the things that sticks out in his mind about the incidents that occurred in that particular location . Once again, the activity was the same. He said Mr. MacIntosh would unzipper his pants, start feeling his leg, then eventually going up to his penis area.

He would then put his mouth on DRS’s penis and have oral sexual relations with him. He said it was very repetitive in that area, although he couldn't remember each specific time. He said this happened when he was between the ages of 10 and 13, which would place him within the time-frame in the Indictment. . . . [71] As well, I am satisfied that the incidents at Reagan’s Dam Road, as referred to by DRS, which was located in the back of * and Mulgrave, and Guysborough, are included in the incidences involving Mr. MacIntosh’s car.

DRS said these events occurred when he was 12 or 13 years of age, and that he referred to the Dam being built for the oil refinery that was going to be built up in that area. He told about Mr. MacIntosh pulling his vehicle over on the road in that area, and performing oral sex on him. There was, as I said earlier, reference by Exhibit #1, Tab 6, to show a list of motor vehicles owned by Mr. MacIntosh, however, I ’m satisfied, as I say, when you look at the age, and location, and time of the alleged incidents, the Registry of Motor Vehicle's information does not cover that particular time frame.

Thus, DRS evidence is believable in a sense that there was an opportunity at that time, and there is no doubt in my mind, that Mr. MacIntosh always had a motor vehicle . . . . [90] I do accept, however, that he did describe a blue Jeep Cherokee being used by Mr. MacIntosh. As Ms. MacGrath pointed out, the motor vehicle records indicate that Mr. MacIntosh had the vehicle before 1976, so it is conceivable this vehicle was being used by Mr.

MacIntosh at the time to which JAH refers. [Emphasis added] [ 24 ] To say that the appellant’s defence was in fact prejudiced by the lack of records from the Registry of Motor Vehicles presumes that if the records had been available, they would have further or better confirmed his evidence that he did not own the vehicles described by the complainants at the relevant time period of their various complaints. [ 25 ] The trial judge had to make findings of credibility.

In doing so, he was required to be alive to the evidence that was relevant to whether the Crown had proven the specific counts set out in the Indictment. As will be detailed later, the Crown agreed certain counts related to specific incidents of assault and oral sex that the complaints said occurred at particular locations. Read in context, the trial judge’s references are nothing more than an acknowledgement of the defence arguments to the trial judge why he should not find the various counts to be proven beyond a reasonable doubt.

He did not, as I read his reasons, find the defence, or the appellant personally, to be “unconvincing” simply because the vehicle information supplied did not cover all of the time frame in the indictment. [ 26 ] There was no issue that the appellant owned a motor vehicle in the time period he lived in Port Hawkesbury, and gave rides to DRS on numerous occasions. DRS said he was not really a car person. He did not testify as to the exact make and model of the car he was in when he said he was assaulted by the appellant. Nonetheless, he gave a detailed description of the car.

It was uncontested by the Crown and the appellant at trial that the vehicle DRS was in was the appellant’s 1975 Oldsmobile. Obviously such a car could not be owned by the appellant before the fall of 1974. The appellant was able to produce documentation showing he purchased the car on December 17, 1974. DRS and others made it plain that there was essentially no further opportunity for DRS to be driven anywhere or be with the appellant alone as children after April 1974.

It may well be that the trial judge failed to appreciate the significance of the evidence advanced concerning when the assaults could have taken place and the availability of the car described by DRS, but that is a different issue. [ 27 ] Although the appellant’s ground of appeal focussed on the issue of motor vehicle records, his argument on appeal extended to other ‘lost evidence’ such as the unavailability of witnesses since deceased and business records from the Sea King Motel.

I see no error by Kennedy C.J.S.C. in his analysis and conclusion that the appellant had not established on a balance of probabilities his right to make full answer and defence was prejudiced by the lengthy pre-charge delay. I would dismiss this ground of appeal.

Section 11(

b) Analysis [ 28 ] With respect, in my opinion, Kennedy C.J.S.C. committed a number of errors in his analysis of the application to stay the proceedings on the basis of post-charge delay. Whether a right has been infringed or denied is a question of law. In resolving such an issue, a court is required to articulate and apply the correct legal principles.

On such matters, the standard of review is correctness, but where in order to resolve the legal issue, findings of fact, or mixed findings of fact and law are made, absent an extricable legal error, an appellate court should not intervene unless clear and palpable error has been shown ( R. v. R.E.W. , 2011 NSCA 18 , para. 31-2 ). [ 29 ] In R. v. Askov , supra , the Supreme Court of Canada settled a number of important issues about the right guaranteed by s. 11(

b) of the Charter . All of the appellants were charged jointly with conspiracy to commit extortion, some with weapon offences, and one with criminal negligence. The charges were serious. Three of the appellants were denied bail for six months, then released on a recognizance of $50,000 with reporting requirements and other conditions. The bail conditions were relaxed each time application was made. [ 30 ] The appellants were arrested in November 1983. Some delay was requested by the appellants. The preliminary inquiry commenced in July 1984. It was completed in September 1984, ten months after arrest.

The trial date was set for October 1985. The trial could not be heard during that court session. It was adjourned to September 1986. At the start of trial, an application was brought claiming the trial had been unreasonably delayed. A stay was requested. [ 31 ] The trial judge granted the stay on the basis that the major reason for the delay was institutional problems, and that the appellants had been prejudiced by the delay due to the six months spent in custody by three of the appellants and the restrictive bail conditions.

The Ontario Court of Appeal reversed. [ 32 ] On appeal to the Supreme Court, the stay was unanimously re-instated. The majority opinion was authored by Justice Cory. Cory J. referred to the seminal decision in the United States, Barker v. Wingo , 407 U.S. 514 (1972) where the United States Supreme Court adopted a balancing test in relation to the United States’ constitutionally guaranteed right to a “speedy trial”.

In carrying out that exercise, the court identified four factors to consider: the length of the delay, the reason for it, the accused’s assertion of his or her right, and prejudice to the accused. [ 33 ] Justice Cory traced the history of the right in cases decided by the Supreme Court of Canada, and identified the similarities and differences in approach. He then distilled and summarized the factors to be taken into account as follows: [69] From the foregoing review it is possible I think to give a brief

summary of all the factors which should be taken into account in considering whether the length of the delay of a trial has been unreasonable. (

i) The Length of the Delay. The longer the delay, the more difficult it should be for a court to excuse it. Very lengthy delays may be such that they cannot be justified for any reason. (ii) Explanation for the Delay. (

a) Delays Attributable to the Crown. Delays attributable to the action of the Crown or officers of the Crown will weigh in favour of the accused. The cases of Rahey and Smith provide examples of such delays.

Complex cases which require longer time for preparation, a greater expenditure of resources by Crown officers, and the longer use of institutional facilities will justify delays longer than those acceptable in simple cases. (

b) Systemic or Institutional Delays. Delays occasioned by inadequate resources must weigh against the Crown. Institutional delays should be considered in light of the comparative test referred to earlier. The burden of justifying inadequate resources resulting in systemic delays will always fall upon the Crown. There may be a transitional period to allow for a temporary period of lenient treatment of systemic delay. (

c) Delays Attributable to the Accused. Certain actions of the accused will justify delays. For example, a request for adjournment or delays to retain different counsel. There may as well be instances where it can be demonstrated by the Crown that the actions of the accused were undertaken for the purposes of delaying the trial. (iii) Waiver. If the accused waives his rights by consenting to or concurring in a delay, this must be taken into account. However, for a waiver to be valid it must be informed, unequivocal and freely given. The burden of showing that a waiver should be inferred falls upon the Crown.

An example of a waiver or concurrence that could be inferred is the consent by counsel for the accused to a fixed date for trial. (iv) Prejudice to the Accused. There is a general, and in the case of very long delays an often virtually irrebuttable presumption of prejudice to the accused resulting from the passage of time. Where the Crown can demonstrate that there was no prejudice to the accused flowing from a delay, then such proof may serve to excuse the delay.

It is also open to the accused to call evidence to demonstrate actual prejudice to strengthen his position that he has been prejudiced as a result of the delay. [ 34 ] In applying these principles, Cory J. found that no matter the standard of measure, or test, the trial was inordinately delayed. Although one year was attributable to the request for adjournments by the appellants, there remained a period of two years, which he viewed as so lengthy that unless there was some very strong basis to justify that delay, it would be impossible for a court to tolerate such a delay (para. 71-72).

The trial judge found prejudice by the lengthy period of pre-trial incarceration and restrictive bail conditions. The Crown had failed to discharge its burden to show the delay had not caused prejudice (para. 73). [ 35 ] Cory J. noted that the delays were not directly attributable to the actions of the Crown. The problem was the lack of institutional resources in the Peel region. This led him to conclude: [90] The delay in this case is such that it is impossible to come to any other conclusion than that the s. 11(

b) Charter rights guaranteed to the individual accused have been infringed. As well, the societal interest in ensuring that these accused be brought to trial within a reasonable time has been grossly offended and denigrated. Indeed the delay is of such an inordinate length that public confidence in the administration of justice must be shaken. Justice so delayed is an affront to the individual, to the community and to the very administration of justice. The lack of institutional facilities cannot in this case be accepted as a basis for justifying the delay. [ 36 ] There was no waiver of the appellant’s right to trial within a reasonable period of time, nor did any direct action on their

part cause the two-year delay. Although the charges were serious – extortion and threatened armed violence (with a firearm) which offences tear at the basic fabric of society, and it would be in the best interest of society to have such a trial proceed, a stay was required (para.

91). [ 37 ] As mentioned above, the decision of the Court was unanimous. Separate concurring judgments were penned by Lamer C.J. and Sopinka, Wilson and McLachlin JJ.. Lamer C.J. and Sopinka J. viewed the right guaranteed by s. 11(

b) to be solely concerned with the individual’s right to trial within a reasonable period of time, and that therefore the object of s. 11(

b) did not include the protection of a societal interest in speedy trials. Wilson J. also shared this view (para. 124). McLachlin J. (as she then was) agreed with Cory J. that s. 11(

b) serves both the interests of the accused and society and set out concurring comments on the process for the determination whether a trial has been unreasonably delayed. The other four justices agreed with Justice Cory’s reasons. [ 38 ] As a consequence of the decision in Askov , some 47,000 charges in Ontario were dismissed or withdrawn between October 1990 and September 1991. In R. v Morin , the court revisited the dilemma of balancing the rights of individuals to a speedy trial with an administration of justice faced with dwindling resources and a burgeoning case load.

The majority reasons were written by Justice Sopinka. The appellant had been stopped for speeding. She showed signs of impairment. A breathalyzer test showed an illegal blood alcohol level. At her first appearance she requested the earliest possible trial date. That date was 14.5 months away. On the day of trial she brought a motion to stay based on her right to trial within a reasonable period of time. The motion was dismissed, granted on appeal to the

Summary Conviction Appeal Court, but reversed by the Ontario Court of Appeal. [ 39 ] There was no disagreement amongst the various levels of court that the sole source of delay was attributable to limits on institutional resources. Sopinka J. restated, but did not alter the law as set out in Askov . He noted that the primary purpose of s. 11(

b) is the protection of the individual rights of the accused. However, based on Askov , Justice Sopinka recognized that society also has an interest in seeing speedy trials, as it ensures fair treatment of an accused and recognizes the intrinsic value to trials held within a reasonable time. Society also has an interest in ensuring those that are charged be brought to trial and this interest increases with the seriousness of the offence (para 30). [ 40 ] The rights that s. 11(

b) is designed to protect are the right to security of the person, liberty and the right to a fair trial. Sopinka J. explained: [28] The right to security of the person is protected in s. 11(

b) by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trial incarceration and restrictive bail conditions.

The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh. [ 41 ] The correct approach to assessing if a delay has been unreasonable was restated to be: [31] The general approach to a determination as to whether the right has been denied is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the

section is designed to protect against factors which either inevitably lead [sic] to delay or are otherwise the cause of delay. As I noted in Smith , supra , “[i]t is axiomatic that some delay is inevitable. The question is, at what point does the delay become unreasonable?” (p. 1131). While the Court has at times indicated otherwise, it is now accepted that the factors to be considered in analyzing 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. These factors are substantially the same as those discussed by this Court in Smith, supra, at p. 1131, and in Askov, supra, at pp. 1231-32. [32] 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. [42] Sopinka J. also revisited the notion of guidelines for what might be acceptable time periods to bring an accused to trial. TheCourt suggested that a period of institutional delay of between 8 to 10 months in provincial court, and 6 to 8 months after committal fortrial (para. 55). [43] The most recent case from the Supreme Court that has addressed the test for unreasonable delay and its application is R. v.Godin, 2009 SCC 26.

I will refer to this case later. [44] Returning to the reasons given in this case, the motions judge correctly observed that the period of time to be considered wasfrom the date of the first Information to trial, a period of almost 14 years. He said it was obvious it was of sufficient length to warrant anenquiry into the reasons for the delay and an apportionment of responsibility (para. 120). In his analysis he divided the delay into twocategories – from the laying of the charges to the appellant’s extradition from India, and from his return to Canada to the date of trial.

Laying of Charges to Extradition (1995-2007) [45] The thrust of the motion judge’s reasons is that because the appellant was out of the country, all of the delay occasionedthereby was attributable to him, not to the Crown. Therefore, the appellant could not be heard to complain about this delay.

Beforeembarking on an analysis of the pre and post-charge delay, the motions judge said: [104] An accused who is out of the country and who is aware he would face charges if he returned to Canada yet chooses to remainoutside the jurisdiction cannot seek to have that time counted against the Crown on an application for unreasonable delay (R. v.Graham 2009 NSSC 196; R. v. White (ON CA), [1997] O.J. No. 961). [Emphasis added]

[46] With respect, this is not correct. It is not borne out by general principles nor the law with respect to s. 11(b). I will elaborate. [47] It is the responsibility of the state to bring any accused to trial. There is no common law duty to assist the police (see Rice v.Connolly, [1966] 2 All E.R. 649 at p. 652; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, RestrictiveTrade Practices Commission), (SCC), [1990] 1 S.C.R. 425). [48] In the context of a right to trial within a reasonable period of time, there is no duty on an accused to bring him or herself totrial. R. v. Beason (1983), (ON CA), 7 C.C.C. (3d) 20, [1983] O.J. No. 3151 (Ont.C.A.) is an early s. 11(

b) case. Martin J.A. said precisely this at para. 63: “An accused has no duty to bring himself to trial. The Crown has that duty.” [49] This principle has been confirmed by the Supreme Court of Canada. In Askov, Cory J. wrote: 57 It must be remembered that it is the duty of the Crown to bring the accused to trial. It is the Crown which is responsible for theprovision of facilities and staff to see that accused persons are tried in a reasonable time. [50] This has been re-affirmed in a number of subsequent cases. That is not to say that the actions or inaction by an accused areirrelevant to a s. 11(

b) analysis. While the actions by an accused that cause or contribute to delay are assessed in examining the reasonsfor the overall delay, inaction is not. Inaction by an accused may be considered when assessing the degree of prejudice. In Morin,Sopinka J. explained: [62] This Court has made clear in previous decisions that it is the duty of the Crown to bring the accused to trial (see Askov, supra, atpp. 1225, 1227, and 1229).

While it was not necessary for the accused to assert her right to be tried within a reasonable time, strong viewshave been expressed that in many cases an accused person is not interested in a speedy trial and that delay works to the advantage of theaccused. This view is summed up by Doherty J. (as he then was) in a paper given to the National Criminal Law Program in July 1989which was referred to with approval by Dubin C.J.O. in Bennett (at p. 52) and echoes what has been noted by numerous commentators: An accused is often not interested in exercising the right bestowed on him by s. 11(b).

His interest lies in having the right infringed bythe prosecution so that he can escape a trial on the merits. This view may seem harsh but experience supports its validity. As also noted by Cory J. in Askov, supra, “the s. 11(

b) right is one which can often be transformed from a protective shield to anoffensive weapon in the hands of the accused” (p. 1222). This right must be interpreted in a manner which recognizes the abuse whichmay be invoked by some accused. The purpose of s. 11(

b) is to expedite trials and minimize prejudice and not to avoid trials on themerits. Action or non-action by the accused which is inconsistent with a desire for a timely trial is something that the court mustconsider. This position is consistent with decisions of this Court in regard to other Charter provisions. For example, this Court has heldthat an accused must be reasonably diligent in contacting counsel under Charter s. 10(b) (R. v. Tremblay, (SCC), [1987]2 S.C.R. 435; R. v. Smith, (SCC), [1989] 2 S.C.R. 368).

If this requirement is not enforced, the right to counsel could beused to frustrate police investigation and in certain cases prevent essential evidence from being obtained. Nonetheless, in taking intoaccount inaction by the accused, the Court must be careful not to subvert the principle that there is no legal obligation on theaccused to assert the right. Inaction may, however, be relevant in assessing the degree of prejudice, if any, that an accused hassuffered as a result of delay. [Emphasis added] See also R. v.

MacDougall, (SCC), [1998] 3 S.C.R. 45 [51] The parties filed extensive documentary material on the motion, including transcripts, statements, affidavits, and policerecords. In addition, the appellant and the investigating officer were cross-examined on their affidavits. Although there was little disputeon the facts, some things remain unexplained. What is clear is that the appellant moved from Port Hawkesbury to Halifax circa 1981 tocontinue his involvement in business. In 1987 his employer transferred him to Ottawa and then to Montreal. In August 1994 he acceptedemployment with a California company.

The appellant moved to India to establish an office for that company and lived there untilextradited. When he left Canada there were no charges. No one had even complained to the police.

[ 52 ] In January and February 1995, DRS and his cousin, JAH gave written statements alleging sexual improprieties by the appellant. JAH’s complaint was that a single incident of oral sex occurred in Bedford, Nova Scotia. The RCMP referred the complaint to the Halifax Regional Police. No charge was laid. [ 53 ] On December 4, 1995 the RCMP laid charges against the appellant based on the complaint by DRS. A warrant was issued for the appellant’s arrest in February 1996. From the outset, the RCMP knew the appellant resided in India.

They had no difficulty in knowing as early as February 1995 where the appellant lived and how to get in touch with him. The first attempted contact with the appellant was in January 1996. Eventually, the investigator, Cst. Deveau spoke directly with the appellant. The evidence was disputed about some of the details of that conversation.

With respect to this, the trial judge stressed the appellant’s inaction: [125] ...Whether he knew about the warrant or not, it is clear that as of that conversation, Macintosh knew he had big trouble in Nova Scotia and yet he takes no action at that time to get to the bottom of the situation, to straighten it out. He is on notice that something of a criminal nature is going on that involves him -- he does nothing in response. [ 54 ] According to Cst. Deveau, the appellant told him that he had no intention of returning to Canada. A year went by.

In October 1997 the RCMP attempted to apprehend the appellant by posting alerts at airports and customs. The Deputy Director of Public Prosecutions received a recommendation from the Chief Crown Attorney for Cape Breton on June 17, 1997 that extradition be pursued. It was not until December 17, 1997 that approval was sought from the DPP to initiate the formal request. That request was made on August 14, 1998. [ 55 ] In addition, the RCMP enlisted the aid of the federal government.

In late 1997, the appellant was advised by letter from the passport office that his passport would be revoked due to an outstanding criminal charge. It is noteworthy that the letter was hand delivered to him by officials of the High Commission in New Delhi. A staff sergeant of the RCMP was stationed there as a liaison officer. [ 56 ] The appellant engaged counsel in Ottawa, who in turn hired David Bright, Q.C. to pursue inquiries about any such charges. Ottawa counsel brought proceedings to challenge the government action.

By April 16, 1998 he was successful in having the appellant’s name removed from the Passport Control List, and confirmation his passport would not be revoked. Despite the alerts, it was the uncontested evidence of the appellant that he continued to travel to and from Canada before and after the passport litigation. [ 57 ] Mr. Bright initially sought disclosure from the Crown in April 1998. The Crown provided disclosure of the file, as it then existed in May 1998. Mr.

Bright was advised of the fact of the extradition request, then being handled by the International Assistance Group of the Federal Department of Justice. Requests for further disclosure from this Department were declined. [ 58 ] It is not entirely clear what delayed the extradition request. The materials do disclose a difficulty in DRS being able to identify the appellant from the passport pictures shown to him. DRS contacted JAH and other individuals who then came forward with complaints. All of the charges were laid by 2001.

Affidavits were prepared at various times in 2002 and 2003 for use in the anticipated extradition request. [ 59 ] The complete extradition package was ready by July 3, 2003. It was not until July 2006 that the extradition request was forwarded to India. No explanation was ever offered, then or now, for why it took so long to proceed with the extradition request, nor for the three years between when it was admittedly ready for submission and action. [ 60 ] The appellant was arrested in India on April 5, 2007. The motions judge said the appellant contested the extradition.

There was evidence that in fact, the appellant was prepared to, and did consent to extradition if he had time to wind up his affairs. Nonetheless, the court in India ruled on April 25, 2007 that the extradition request was proper. On May 26, 2007 India agreed to extradite. The appellant appeared in Provincial Court in Port Hawkesbury Nova Scotia on June 8, 2007.

I will refer later to the events between that date and the date of trial. [ 61 ] I have earlier set out the position announced by the motions judge that the appellant was foreclosed from seeking to have the 1995-2007 time frame from counting against the Crown. The motions judge followed up on this in his analysis. He put it this way:

[132] Macintosh, in possession of this information, does nothing to deal with the matter but rather waits for the authorities to compel hisattendance in a Canadian court. [133] This is of significance. This is central to the issue. [134] I find the situation to be analogous to the situation of the accused in R. v. R.E.M., supra. Had Macintosh desired a timely trial onthe merits he could have voluntarily returned to this jurisdiction upon being informed of the warrant and the extradition process. [Emphasis added] [62] In taking this approach, in my opinion, the motions judge erred in law.

With respect, he wrongly placed an onus on theappellant to turn himself in to the authorities. This is not the law in Canada. The motions judge referred to two authorities in support ofhis approach that the time the appellant was in India could not be attributed to the Crown: R. v. Graham, 2009 NSSC 196; R. v. White, (ON CA), [1997] O.J. No. 961 (Ont.C.A.). He also considered the case of R. v. R.E.M., 2004 BCSC 987 ,[2004] B.C.J. No. 1849, aff’d 2007 BCCA 154 to be analogous in support of this view. Again, with all due respect, for the followingreasons, I am unable to agree. [63] In R. v.

Graham, supra, the appellant challenged a refusal by a provincial court judge to hear a Charter motion allegingunreasonable delay. MacLellan J., sitting as the

Summary Conviction Appeal Court, found the judge should have heard the motion andgranted it. Accordingly, he quashed the conviction for assault causing bodily harm and stayed the charge. The facts were that theaccused left Nova Scotia in 2003 following an altercation outside a pub. He lived in Thailand for four years, returning every summer fora month. [64] MacLellan J. did refer to the White case as standing for the proposition that if an accused is away or out of the country, and isaware that he would face charges if he returns, but choses to remain away, then time does not run against the Crown.

MacLellan J. wenton to say that if he were to apply that principle, there was in fact no evidence that the appellant was aware of the outstanding charge, andhence did count all of the time (four years) against the Crown. MacLellan J. accepted that there was no actual prejudice to the accused,but based on Morin, inferred prejudice and stayed the charge. [65] However, R. v. White, supra does not stand for such a bald proposition. In White, the appellant was convicted of fraudinvolving scientific research tax credits. The scheme involved millions of dollars.

The appellant’s business premises were searched byRevenue Canada in May 1986. He then moved to the United States. A charge of income tax evasion followed in May 1987. This wasnot extraditable. In October 1989 he was charged with fraud and forgery under the Criminal Code, and was arrested in California onNovember 2, 1989. Extradition was contested. It was not complete until December 15, 1991. [66] On arrival in Canada, he was released on bail. His trial commenced September 7, 1993. The time to be examined was fromthe Income Tax charge until trial, a period of six years and nine months.

His motion at trial for a stay based on unreasonable delay wasnot successful. The trial judge properly attributed the two years to the appellant while he resisted extradition (para. 41). With respect tothe delay from May 1987 to November 1989 the trial judge found White to have been evading service. The Court observed that Whitedid not disclose his American address in correspondence with Revenue Canada, instead using his old address in Toronto, then occupiedby his wife. He gave no indication he had moved to California. Justices Laskin and Charron (as she then was) authored the reasons forjudgment.

They wrote: 36 Because White knew charges were outstanding against him yet refused to return to Canada, tell the Crown where he was or evencontact the Crown through a third party, the delay must be attributable to him unless the Crown knew his whereabouts anddeliberately delayed apprehending him or did not diligently bring him to trial: see U.S. v. Deleon.

The evidence before the trialjudge reasonably supported his findings that the Crown had taken reasonable steps to find White and that the Crown did not know whereWhite lived until late March 1989. [Emphasis added] [67] The case referred to by Justices Laskin and Charron in R. v. White is U.S. v. Deleon, 710 F.2d 1218 (1983), is a decision ofthe United States Court of Appeals for the Seventh Circuit. There was a three and one-half year delay between the issuance of a warrantand arrest. The appellant claimed his right to a speedy trial had been violated. The motion was unsuccessful at trial and on appeal.

Hoffman J., for the Court, recognized the duty on the state to locate, apprehend and bring a defendant to trial. He wrote: The second factor to be considered is the reason for the delay. With respect to this factor we note that the Government, under the SixthAmendment, has a “constitutional duty to make a diligent good faith effort” to locate and apprehend a defendant and bring that defendantto trial. Smith v. Hooey, 393 U.S. 374, 383, 89 S.Ct. 575, 579, 21 L.Ed. 2d 607 (1969); United States v. McConahy, supra at 773-74;United States v. Weber, 479 F. 2d 331, 332-33 (8th Cir. 1973).

The question here is whether the reason for the delay is because theGovernment breached that duty. [68] A duty on the state to exercise diligence was later affirmed by the U.S. Supreme Court in Doggett v. U.S., 112 S.Ct. 2686(1992); 505 U.S. 647 (1992). [69] The facts here are markedly different than in White. The police had information from the very beginning detailing exactlywhere the appellant was located. The High Commission in New Delhi hand delivered a letter to him in 1997. In 1998 his lawyercontacted the Crown for disclosure. He did nothing to hide or hinder the authorities.

If he did ‘fight’ extradition, that fight lasted onlythree weeks. That is not to say that the appellant’s stance is irrelevant to the speedy trial analysis. But it is not determinative nor centralto the outcome. Even if it could be said that the appellant ‘refused’ to return to Canada voluntarily (the appellant’s uncontradictedevidence was that he travelled to and from Canada), this inaction by the appellant is properly accounted for by adding to the inherenttime requirements of the case since the formalities of the extradition process will obviously take additional time.

In addition, it can playa role in assessing prejudice along with the overall length of the proceedings. [70] It simply cannot be said that the state made a diligent effort to bring the appellant to trial. There were lengthy periods wherethe authorities, despite knowing exactly where the appellant was located, did nothing to pursue him. According to the uncontradictedevidence, the authorities said they knew in August 1996 that the appellant would not return voluntarily. At that time, there was onecomplainant. No evidence was submitted as to why it took years to move ahead.

No assessment was undertaken by the motions judgeabout this delay beyond placing the cause of all of it at the feet of the appellant. [71] There is some suggestion in the record that the inability of the complainant DRS to identify the appellant from a photographicline up caused a problem in the extradition effort. It was then that DRS spoke with other complainants. Investigators then tookstatements. The motions judge referred to the suspension of the extradition process to avoid being barred from pursuing potentialcharges due to the speciality rule (para. 138).

That is, the requesting state (Canada) would be precluded from prosecuting an accused forany charges except those on which he was extradited. Concern over the speciality rule may reasonably account for some of the delay inthe process, but does not address the delay prior to the surfacing of additional complainants, in completing the extradition affidavits, northe three years from the time the extradition package was ready until it was submitted to India. [72] The motions judge also relied on the case of R. v. R.E.M, supra. He considered it to be analogous.

With respect, the facts inR.E.M. are completely different from the case at hand. In R.E.M. a complaint was made to the police in May 1988. At that time, theaccused was living in the United States, but visited Canada on a regular basis to see his daughter. A charge was laid on July 6, 1988 andthe accused was arrested in British Columbia on July 8, 1988. He was released on bail but did not return to court as required on July 18,1988, nor for a subsequently scheduled hearing. Warrants for his arrest were issued.

The accused had received legal advice that heshould stay in the United States and not return to Canada, as it was unlikely the Crown would seek his extradition. Other complaints ledto further charges. In March 2003 the accused was arrested on an extradition warrant. [73] On June 10, 2003 he was released on bail on conditions described by the trial judge as “not restrictive”. The preliminaryinquiry was held and his trial set to commence on July 19, 2004. He brought a motion seeking a stay. Justice Romilly dismissed themotion.

While acknowledging it was the Crown’s responsibility to bring the accused to trial, and there had been “foot dragging” by theCrown, the fact was, the accused had evaded prosecution by fleeing to the United States. Romilly J. wrote: 36 Defence counsel drew my attention to the decisions of R. v. Cardinal (1985), 1985 ABCA 157 , 21 C.C.C. (3d) 254(Alta. C.A.); R. v. White and Sennet (1997), (ON CA), 114 C.C.C. (3d) 225 (Ont. C.A.) appeal dismissed 114 C.C.C.(3d) 225 (S.C.C.); R. v. Knights, [1996] B.C.J. No. 2870 (B.C.S.C); R. v. Ryan (1999), (NB PC), 211 N.B.R. (2d) 1(N.B. Prov. Ct.); and R. v.

Gorski (1995), (SK KB), 129 Sask.R. 234 (Sask. Q.B.). The position of the defence is thatit is the Crown's obligation to protect the accused's s. 11(

b) Charter rights. These cases cited by the defence are, however,distinguishable on their facts. The distinguishing factor being that in the case at bar the accused was charged and brought before theCanadian courts and he decided to evade prosecution by fleeing to the United States of America. It is true that the Canadian authorities

should have been more diligent in having him extradited but failure to do that on an expedited basis is not the reason for the delay. Themain reason for the delay lay squarely at the feet of the accused. [74] The accused in R.E.M. had a legal duty to attend court. His bail conditions required his attendance in court in BritishColumbia. His action in fleeing the jurisdiction in violation of his legal duty was the main reason for the delay of his trial. In this case,the appellant did not flee the jurisdiction. He did not evade prosecution.

Obviously, he did not turn himself in to the authorities on anyof his voluntary trips to Canada. As detailed earlier, he had no legal obligation to do so. It was wrong to say that all of the delay from1995 to his return to Canada in 2007 was caused by him. The motions judge erred in law in attributing this delay to the appellant. Extradition to Trial [75] The motions judge examined the time period from the appellant’s first appearance in a Canadian court to his trial. This periodwas June 8, 2007 to October 28, 2009. His analysis is succinct.

He found the first 10 days (from appearance to bail being denied)attributable to “inherent time requirements” and hence neutral. From June 18 to July 23, 2007 the defence had requested and waited forfurther disclosure. This time he assessed against the Crown. [76] Election for mode of trial was not entered by the appellant until May 7, 2008. Throughout this time, the defence wrotenumerous letters seeking further disclosure. The Crown never argued the requests were somehow improper or a delay tactic. Some ofthe requests will be detailed later.

For this time period, the motions judge reasoned: [151] From July 23, 2007 until election on May 7, 2008, Macintosh was seeking further material with respect to motions he wished tobring both in relation to a challenge to the extradition process and a request for a second bail hearing - material which was motionspecific rather than information as to what evidence was available to support the allegations. The delay involved in dealing with thoseissues should not be attributable to the Crown.

Macintosh, in trying to get this material, suggested adjournments and resisted electing amode of trial until the Court insisted that the matter move ahead and forced the issue at the May 7, 2008 appearance. [77] Based on this reasoning, the motions judge concluded: [159] I am satisfied that the Defence was responsible for a significant portion of the delay from the point that Macintosh arrives inCanada and bears responsibility for delay of approximately 11 months.

The Crown is responsible for delay of approximately one month,five days, and the remainder of the time is attributable to the inherent time requirements of the matter. [78] In my opinion, the trial judge erred in attributing 11 months of the delay to the appellant. This attribution resulted frommisapprehending the evidence which led to a plainly erroneous attribution of delay at the feet of the appellant.

The characterization ofthe disclosure requests made by the appellant from June 2007 to May 2008 were not, with respect, simply seeking material with respectto motions the appellant wanted to bring to challenge the extradition process and a request for a second bail hearing. [79] The appellant filed on the stay application a volume of disclosure correspondence. Four years prior to the request forextradition to India was submitted, the RCMP and Crown were obviously aware of the need to fulfill their disclosure obligation. On June25, 2002 the RCMP reviewed the Crown’s file.

The file did not contain copies of the video or audio statements, the photo lineups andother material. The officer noted “The present disclosure falls far short of what is required by Stinchcombe.” This is a reference to theseminal decision by the Supreme Court of Canada in R. v. Stinchcombe, (SCC), [1991] 3 S.C.R. 326, [1991] S.C.J. No.83 (Q.L.), where the fundamental importance of timely disclosure was established, including the recognition that it should occur prior toelection (para. 28). [80] The RCMP undertook to provide a proper disclosure package.

According to correspondence from the RCMP to the Crownoffice of August 25, 2002, two disclosure packages were delivered to the Crown on that day. They consisted of three binders with sixvideocassettes, along with extra copies to facilitate production thereof to the defence. [81] The correspondence from July 2007 and following contains requests for information and documentation, some of which maywell have only seemed pertinent to a potential challenge to the extradition process. If so, that did not make the request irrelevant to the

election to be made. [ 82 ] In any event, there were also requests for information plainly relevant to making full answer and defence. These included the request for the exchanges of communication between the authorities and the various complainants. As demonstrated at trial, the allegations made by at least some of the complainants changed over time as the extradition process unfolded. This information was provided in October 2007. [ 83 ] More significantly, none of the video and audio taped statements from the complainants were provided in a timely fashion.

This led to the following request on October 22, 2007: Upon our review of the disclosure, it has also come to our attention that we have not been provided with any DVD, video or audio tapes with respect to this matter, including but not limited to the six video cassettes which are referenced in the index to binders No. 1 through 3, and we request that you provide us with copies of these. We would further request that you advise us whether any of the complainants or anticipated witnesses in this matter have criminal records, as well as current contact information for each of the complainants and witnesses.

Again, we thank you for your efforts to provide us with disclosure in this matter. We do not wish to delay, particularly with Mr. MacIntosh in custody, however we are simply not in a position to make election and plea on October 28, 2007, without full and complete disclosure in this matter. It is our suggestion that we once again put the matter over, until which time the Crown would anticipate being able to provide us with all relevant materials. [ 84 ] This request had to be repeated on November 8, 2007, January 2, 2008, and February 7, 2008.

The Crown did not provide these statements to the defence until February 22, 2008. This is despite being ostensibly available to do so since 2002. [ 85 ] Other requests included DRS’s affidavit sworn June 29, 1998 concerning his allegations against the appellant. This and other material were not provided until early May 2008. Contrary to the finding outlined above that the defence refused to enter election and/or plea until forced to do so by the court on May 7, 2008, the transcript of the appearance reveals the following: MR.

CASEY: Your Honour, I’m here for the MacIntosh matter that is before you for election and plea. When I was in court last time I indicated that there were still some outstanding disclosure. THE COURT: Right. MR. CASEY: I’m happy to report that the disclosure was provided to me on May 2nd, on Friday. THE COURT: All right. MR. CASEY: And so that indicates we are ready to proceed with out election and plea. THE COURT: Okay. [ 86 ] In sum, in my opinion, the motions judge unreasonably attributed to the appellant 11 months of the delay.

Delay while waiting for the Crown to comply with basic disclosure obligations such as the video and audio statements of the complainants and sworn

affidavits is attributable to the Crown (see Morin , para. 46 ). This would bring to the total over 12 months delay attributable to the Crown after the appellant’s return to Canada. I agree with the motions judge that the remainder of the time is attributable to the inherent time requirements of the case. [ 87 ] Frequently, the real crux to any application for a stay is the assessment of prejudice that must be carried out, in light of the overall length of the delay, the explanation for it, and the interests that s. 11(

b) is designed to protect ( Morin , para. 32 ). In my opinion, with respect, the motions judge also failed to apply the proper principles in this aspect of his analysis. I will explain. [ 88 ] I have earlier set out the principles established by the Supreme Court of Canada in Askov and Morin . With respect to prejudice, Cory J. in Askov wrote of this factor (para. 69): There is a general, and in the case of very long delays an often virtually irrebuttable presumption of prejudice to the accused resulting from the passage of time.

Where the Crown can demonstrate that there was no prejudice to the accused flowing from a delay, then such proof may serve to excuse the delay. It is also open to the accused to call evidence to demonstrate actual prejudice to strengthen his position that he has been prejudiced as a result of the delay. [ 89 ] Sopinka J. in Morin emphasized that prejudice to an individual’s right to liberty, security of the person, and the ability to make full answer and defence can be inferred from prolonged delay (para. 61).

In addition, apart from inferred prejudice, the parties may rely on evidence to either show prejudice or dispel such a finding. He said this: [63] Apart, however, from inferred prejudice, either party may rely on evidence to either show prejudice or dispel such a finding. For example, the accused may rely on evidence tending to show prejudice to his or her liberty interest as a result of pre-trial incarceration or restrictive bail conditions.

Prejudice to the accused’s security interest can be shown by evidence of the ongoing stress or damage to reputation as a result of overlong exposure to “the vexations and vicissitudes of a pending criminal accusation”, to use the words adopted by Lamer J. in Mills , supra , at p. 919. The fact that the accused sought an early trial date will also be relevant. Evidence may also be adduced to show that delay has prejudiced the accused’s ability to make full answer and defence. [ 90 ] These principles were revisited by the Supreme Court in R. v. Godin , 2009 SCC 26 .

In May 2005 the appellant in Godin was charged with serious offences. They included sexual assault, unlawful confinement and death threats. Nonetheless, the Crown elected to proceed summarily. The trial date was set for three days in February 2006, just nine months later. The trial did not proceed. Late disclosure of forensic tests triggered a re-election by the appellant. On the adjourned date, the preliminary inquiry could not be reached due to other matters on the docket. Eventually, the trial was to be held in November 2007, approximately 2.5 years from the laying of the charges.

The trial judge stayed the proceedings. The stay was reversed by the Ontario Court of Appeal on the basis that any prejudice to the accused’s interest in a fair trial was too speculative. [ 91 ] The Supreme Court reinstated the stay. Cromwell J. wrote the unanimous reasons for judgment. He again acknowledged that prejudice can be inferred, and that the longer the delay, the more likely such an inference will be drawn. He wrote as follows: [30] Prejudice in this context is concerned with the three interests of the accused that s. 11(

b) protects: liberty, as regards to pre-trial custody or bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge; and the right to make full answer and defence, insofar as delay can prejudice the ability of the defendant to lead evidence, cross-examine witnesses, or otherwise to raise a defence. See Morin , at pp. 801-3. [31] The question of prejudice cannot be considered separately from the length of the delay.

As Sopinka J. wrote in Morin , at p. 801, even in the absence of specific evidence of prejudice, “prejudice may be inferred from the length of the delay. The longer the delay the more likely that such an inference will be drawn”. Here, the delay exceeded the ordinary guidelines by a year or more, even though the case was straightforward. Furthermore, there was some evidence of actual prejudice and a reasonable inference of a risk of prejudice. . . . [35] The majority of the Court of Appeal rejected as speculative the appellant’s contention that his ability to make full answer and defence had been prejudiced.

There was evidence, however, that there was a risk of prejudice to his defence because of the delay. In my respectful view, the majority of the Court of Appeal erred by failing to accord any weight to this risk of prejudice.

[36] 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. [37] 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. [38] 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. Proof of actual prejudice to the right to make full answer and defence is not invariably required to establish a s. 11(

b) violation. This is only one of three varieties of prejudice, all of which must be considered together with the length of the delay and the explanations for why it occurred. [ 92 ] Similar principles were echoed in Doggett v. U.S., supra . Eight years after indictment, the authorities discovered that Doggett was not out of the country, as they believed, but living in the United States. The authorities were found to have lacked diligence in pursuing the appellant. Doggett could not establish actual prejudice to his ability to defend.

Souter J., for the majority, wrote of the difficulty in establishing concrete prejudice, and the relationship between delay caused by lack of diligence by the government and presumed prejudice (112 S.Ct. 2686 at pp. 2692-2693): [10,11] As an alternative to limiting Barker, the Government claims Doggett has failed to make any affirmative showing that the delay weakened his ability to raise specific defenses, elicit specific testimony, or produce specific items of evidence.

Though Doggett did indeed come up short in this respect, the Government’s argument takes it only so far: consideration of prejudice is not limited to the specifically demonstrable, and, as it concedes, Brief for United States 28, n.21; Tr. of Oral Arg. 28-34 (Feb.24, 1992), affirmative proof of particularized prejudice is not essential to every speedy trial claim. See Moore, supra, 414 U.S., at 26, 94 S.Ct., at 189; Barker, supra 407 U.S., at 533, 92 S.Ct., at 2193.

Barker explicitly recognized that impairment of one’s defense is the most difficult form of speedy trial prejudice to prove because time’s erosion of exculpatory evidence and testimony “can rarely be shown.” 407 U.S., at 532, 92 S.Ct., at 2193. And though time can tilt the case against either side, see id. , at 521, 92 S.Ct., at 2187; Loud Hawk, supra, 474 U.S. at 315, 106 S.Ct., at 656, one cannot generally be sure which of them it has prejudiced more severely.

Thus, we generally have to recognize that excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify. While such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria, see Loud Hawk, supra, at 315, 106 S.Ct., at 656, it is part of the mix of relevant facts, and its importance increases with the length of delay. . . . [12] Barker made it clear that “different weights [are to be] assigned to different reasons” for delay. Ibid.

Although negligence is obviously to be weighed more lightly than a deliberate intent to harm the accused’s defense, it still falls on the wrong side of the divide between acceptable and unacceptable reasons for delaying a criminal prosecution once it has begun. And such is the nature of the prejudice presumed that the weight we assign to official negligence compounds over time as the presumption of evidentiary prejudice grows. Thus, our toleration of such negligence varies inversely with its protractedness, cf. Arizona v.

Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed. 2d 281 (1988), and its consequent threat to the fairness of the accused’s trial. Condoning prolonged and unjustifiable delays in prosecution would both penalize many defendants for the state’s fault and simply encourage the government to gamble with the interests of criminal suspects assigned a low prosecutorial priority.

The Government, indeed, can hardly complain too loudly, for persistent neglect in concluding a criminal prosecution indicates an uncommonly feeble interest in bringing an accused to justice; the more weight the Government attaches to securing a conviction, the harder it will try to get it. [ 93 ] Keeping all of these principles in mind, I return to the analysis by the motions judge. In my view, the motions judge placed an evidentiary burden on the appellant to establish that his fair trial rights were impacted by the post-charge delay.

The following illustrates: [143] I conclude that the unavailability of this so called “lost material” is not shown, on the balance of probabilities, to be prejudicial to the accused.

[144] While the accused is claiming that prejudice is attributable to this period of time such that the charges should be stayed there is no clear evidence as to what that prejudice is, in relation to the trial. The prejudice is not shown. [ 94 ] I see no appropriate consideration by the motions judge of the overall length of the delay and the risk of prejudice to the appellant’s ability to make full answer and defence. In fact, the motions judge accepted that it was “probable” that the delay would affect the quality of some of the evidence to be produced by the accused and the Crown.

But then simply said, “ The trial judge will assess that evidence” (para. 165). With respect, once having found that delay would impact on the quality of the evidence, he should have considered the impact of the overall delay on the appellant’s ability to make full answer and defence in the context of the risk of prejudice on his ability to lead evidence, cross-examine or otherwise raise a defence. [ 95 ] Instead, the motions judge concluded: [166] That said, when I apply the approach to this application as set out in R. v.

Morin , supra , I conclude that this is not an appropriate case for a judicial stay. [ 96 ] He then explained: [167] The suggested prejudice to the accused at trial is nebulous.

It is not shown on the “balance of probabilities” and the delay inference available as to post-charge delay does not justify a stay. [168] When I balance the interests involved, the right of the accused to a fair trial, the interest in the public in having these matters tried on their merits, I conclude that a stay is not to be had in this matter. [169] I repeat and emphasize that the accused has been responsible for much of the unfortunate delay herein. [170] I will not be granting the Applicant’s request that these charges be stayed. [ 97 ] I have no difficulty in accepting that the appellant suffered little or no prejudice to his liberty and security interests while he was in India.

He did not testify that he did, and it would be wrong to infer such prejudice since he was not subject to any restrictions on his liberty nor under ongoing stress or damage to his reputation by overlong exposure to a pending criminal proceeding. The appellant does not argue for such an inference. [ 98 ] However, the appellant obviously suffered considerably once in Canada.

Extensive evidence was led about the physical abuse he suffered at various times throughout the process while incarcerated, the extensive and ongoing wildly inaccurate reporting about the allegations, and the very restrictive bail conditions he was on once interim release was granted. With respect to this prejudice, the motions judge acknowledged it, but discounted it. He said: [162] He was beaten at the Cape Breton Correctional Centre. He was held in solitary confinement. He was initially denied bail and was imprisoned from June 2007 until April of 2008.

He has since been released under restrictive bail conditions. He has received death threats and the publicity surrounding his situation has been both extensive and commonly inaccurate. [163] I agree with the Crown submission that most of this type of prejudice derives from the laying of the charges rather than delay. The delay may have exacerbated it, but has not caused it.

[ 99 ] I have difficulty understanding how ‘most of this type of prejudic

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