R. v. Nadia Charland, 2013 ONSC 7797

CITATION : R. v. Nadia Charland, 2013 ONSC 7797 COURT FILE NO.: 12-0023 DATE: 20131217 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) HER MAJESTY THE QUEEN ) ) ) Serge Hamel, for the Applicant ) Applicant ) ) - and - ) ) ) NADIA CHARLAND ) ) ) Michael Venturi, for the Respondent ) Respondent ) ) ) ) HEARD: November 13, 2013 D E C I S I O N WILCOX, J. [ 1 ] INTRODUCTION [ 2 ] Nadia Charland is charged with two counts of sexual assault contrary to s. 271 and two counts of sexual interference contrary to s. 151 (

a) of the Criminal Code . These are alleged to have taken place between November 1, 2009 and November 1, 2010. It appears that she has been out of custody on bail since her arrest, although the details relating to that were not provided to the court on this application. She elected on October 2, 2012 to have a preliminary inquiry in the Ontario Court of Justice and to be tried in the Superior Court of Justice by a judge alone. The accused was committed to trial.

The trial is scheduled to take place on April 24 and 25, 2014. [ 3 ] The accused brought this application for an order granting a stay of proceedings pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms on the grounds that her rights under the Charter have been breached by the delay in getting the matter to trial. [ 4 ] The history of the proceedings is summarized as follows:

December 2, 2011 – Information is sworn December 6, 2011 – Applicant’s initial disclosurerequest is sent December 15, 2011 – The Respondent provides initial disclosure to the Applicant December 16, 2011 – First appearance. Adjourned to January 20, 2012. January 20, 2012 – Matter adjourned to February 17,2012 to follow a pre-trial conference. February 17,2012 – Matter adjourned to March 7, 2012 to set a criminal discovery date.

February 22, 2012 – Additional disclosure requested so that the Applicant could determine how toproceed March 7, 2012 – Matter adjourned to April 5, 2012 for focushearing and to April 18, 2012 to set a date for criminal discovery. April 5, 2012 – Pre-trialconference held instead of a focus hearing April 18, 2012 – Matter was adjourned to April 25, 2012 for a focus hearing,and to May 2, 2012 assignment court. April 25, 2012 – Focus hearing adjourned forlack of disclosure. May 2, 2012 – Matter is adjourned to June 6, 2012 for disclosure.

June 6, 2012 – Matter adjourned to June 19, 2012 to set a date for focus hearing. June 19, 2012 – Matter adjourned for focus hearing on July 9, 2012. July 9, 2012 – Focus hearing held. Adjourned to July 18, 2012 to confirm a criminal discovery date. July 18, 2012 – Confirmed Criminal Discovery for October 2, 2012. October 2, 2012 – Criminal Discovery #1. October 3, 2012 – Crown advises Applicant that he spokewith alleged victim B.B. after discoveries. January 7, 2013 –Statement of B.B. taken by police. February 13, 2013 – Superior Court Judicial Pre-Trial is held.

February 14, 2013 – Applicant is advised an additional information will be laid, alleging sexual assault againstB.B.. March 25, 2013 – Adjourned to April 26, 2013, awaiting preliminary inquiry on newcharges. April 26, 2013 – Adjourned to July 17 to allow for the June14, 2013 preliminary inquiry on the new charges. June 14, 2013– New charges are stayed. July 17, 2013 – Matter adjourned to set trial dates on August 30,2013. Date of November 18 for s. 11(

b) application confirmed. August 30, 2013 – Trialdates of April 24 and 25, 2014 confirmed. November 13, 2013 – S. 11(

b) application heard. April 25, 2014 – Last day of scheduled trial. [5] The evidence on the hearing consisted of the oral testimony of the accused and the affidavit of Sharon A. Burton sworn October16, 2013. [6] LAW [7] S. 11(

b) of the Charter states: 11. Any person charged with an offence has the right (

b) to be tried within a reasonable time. The analytical framework for s. 11(

b) applications has been set out by the Supreme Court of Canada in a line of cases, principal amongwhich is R. v. Morin (SCC), [1992] S.C.J. No. 25, and commented on in many others over the years. I will not do adissertation on it here. Briefly, in R. v. Morin, Sopinka J. for the majority stated that the factors to be considered in analyzing delay are: 1. The length of the delay; 2. Clear, unequivocal and informed waiver oftime periods; 3. The reasons for the delay, including

a) inherent time requirements of the case, including for “intake requirements” such as retentionof counsel, bail hearings and police and administrative paperwork, and preliminary inquiry,

b) actions of the accused,

c) actions of the Crown,

d) limits oninstitutional resources. This institutional or systemic delay starts to run when the parties are ready for trial, but the systemcannot accommodate them, e)other reasons for delay; and 4. Prejudice to the accused. [8] In R. v. Sikorski, 2013 ONSC 1714 , [2013] O.J. No. 1654 (ONT. S.C.J.) paragraph 84, Nordheimer J. commented onthe analysis as follows: I take the opportunity at this point to observe that there is some confusion in the s. 11(

b) case law as to the proper time period to whichthe guidelines apply. Some cases apply the guidelines to the total time between arrest and trial and others apply them only to the periodwhere the parties are ready to set dates and those dates are actually set. Some cases appear to blend the two.

While the confusion isunderstandable given the language used in many of the cases, it appears that the correct approach is to take the total period of timebetween arrest and trial, deduct from that period the time for which the defence is responsible, further deduct the intake periods and theinherent time requirements of the case and then compare the remaining time period with the guidelines to determine its reasonableness.

Itake this to be the proper approach based on my reading of the Supreme Court of Canada’s most recent discussion of the subject in R. v.Godin, 2009 SCC 26 , [2009] 2 S.C.R. 3. [9] 1 - THE LENGTH OF THE DELAY [10] The accused does not say what the date of arrest was, but starts counting from December 2, 2011, the date the Information wassworn, and gives a figure of 875 days of delay to April 25, 2014, the last day scheduled for trial. The Crown indicates that the accusedwas charged in November, 2011, does not give an arrest date, but says the accused was released on a Promise to Appear on November15, 2011.

Assuming that the accused was arrested and released the same day, and counting from November 15, 2011, I calculate 891days to April 25, 2014, or about 29 months. In any event, the Crown fairly conceded that the delay is long enough to warrant a review. [11] 2 – WAIVER

[12] It was the uncontroverted submission of the defence that the accused had never waived her s. 11(

b) rights. [13] 3 – THE REASON FOR DELAY [14] Counsel each supplied a table in their respective factum setting out periods within the overall time, indicating what took place ineach period, and assigning each to one of the reasons for delay. They indicated that their totals agreed, but for three sub-periods: 1) April 18, 2012 to June 6, 2012 2) October 2, 2012 to June 14, 2013 3) June 14, 2013 to April 25, 2014 [15] The Crown noted that there was one other, minor period of disagreement.

The defence’s factum says that the nine day periodfrom July 9, 2012 to July 18, 2012 is inherent, whereas the Crown says it is institutional. He doubted that much would turn on that shortperiod. Defence did not address that point, although it would be of some theoretical benefit, at least, to the accused to have it calledinstitutional.

In the circumstances, for the purposes of this case, I accept the defence’s characterization. [16] Having reviewed the matter, I generally agree with counsel’s characterization of the periods that they agree about. [17] RE: APRIL 18 to JUNE 19, 2012 [18] The first set of charges was set out in an Information sworn on December 2, 2011.

After the October 2, 2012 committal to trialon these charges, the Crown filed the corresponding Indictment. [19] These charges were based on a pre-charge investigation dating from 2009 and the allegations of two individuals, Zoey Baril andAlex MacAlpine. [20] Defence counsel submitted that by March 7, 2012 it was ready to set a date for a criminal discovery. This is borne out by thetranscript of proceedings in the Ontario Court of Justice (OCJ) on that date. However, it also shows that the Crown first wanted a focushearing.

The agent for the defence counsel had dates for criminal discoveries, starting on April 5, 2012. The registrar noted for therecord that the court was available on March 28 and on April 3 and 4. The focus hearing was scheduled for a teleconference at 9:15 a.m. April 5th. A return date of April 18 in assignment court was set to set a date for the “prelim”. [21] Defence counsel stated in the application hearing that it did not see the need for a focus hearing and, furthermore, that its requestfor a criminal discovery as compared to a preliminary inquiry showed its intent to expedite the matter as it is easier to

schedule adiscovery than it is a preliminary inquiry which requires a judge to be present throughout. [22] The matter was addressed again in OCJ on April 18, 2012. From the transcript, it appears that the focus hearing of April 5, 2012had been converted to a pre-trial conference, that the Crown and defence agent in court had not been present at it and knew little of whatwas discussed, that this was the next court date after that, and the Crown again wanted to set a date for a focus hearing.

The matter wasput to April 25 for a focus hearing by the trial coordinator and made returnable at assignment court on May 2, 2012. [23] The defence submits that the time was lost because it was waiting for additional disclosure that was necessary in order for it toconduct a focus hearing and that, until it was received, the defence was on hold because of the uncertainty over the implications of thenew evidence. That disclosure was sent to it by letter of April 23, 2012 from the Crown’s office. It was voluminous and in French.

Thetranscript of the OCJ from April 25, 2012 shows that the focus hearing had to be adjourned from that day because there was still somedisclosure missing. It remained scheduled for the May 2 assignment court, to set a new date for a focus hearing. [24] On May 2, defence would have just received the disclosure, although counsel speaking as agents in court were unaware of that. So, the matter was adjourned again, to June 6 to set a date for a focus hearing. [25] On June 6, defence counsel was not represented in court and the duty counsel had no opportunity to contact him.

So, the matterwas adjourned to June 19 when a pre-set date of July 9 was confirmed for the focus hearing. [26] The defence accepts responsibility for delay only for the period of June 6 to 19, when it had failed to instruct an agent to set thefocus hearing date. [27] Defence submits that the period of April 18 to June 6 was lost because it was waiting for additional disclosure that was necessaryto conduct a focus hearing which was not required but was requested by the Crown.

It submitted that the documents disclosed were fromthe pre-charge investigation in 2009 and that the Crown had told defence of their existence on February 17, 2012. Defence hadrequested disclosure of them on February 22. It attributed the delay from April 18 to June 6, 49 days, to the Crown. [28] Crown counsel submitted that it provided initial disclosure which the defence received on December 15, 2011. Subsequently, itreceived a large package, in French, from the school board. This is the disclosure that is central to the delay in question. The Crowncited R. v.

Kovacs-Tatar, (ON CA), 73 O.R. (3b) 161, a 2004 decision in which the Ontario Court of Appealindicated that, having made the initial disclosure, the Crown is not obliged to disclose every last bit of evidence before a trial date is set. This was in support of his argument that it was open to set a date for the focus hearing earlier, but defence sought adjournments until thefurther disclosure was received.

Therefore, he submitted, the defence bears part or all of the responsibility for the April 18 to June 6period. [29] The focus hearing referred to is the optional pre-preliminary inquiry hearing provided for in Criminal Code s. 536.4.

Its purposeis to assist in identifying the issues on which evidence will be given at the preliminary inquiry and the witnesses to be heard at it, and toconsider any other matters that would promote a fair and expeditious inquiry. [30] The question that arises is, if the defence did not think that the focus hearing that was requested by the Crown was necessary,why did it hold off scheduling it until the disclosure was received and, presumably, analyzed? If it was necessary for the purposes of the

focus hearing, I would have considerable sympathy for the defence’s position. In that event, without it, defence would not have been able to participate as constructively in the hearing to identify the issues and the necessary witnesses. If, however, as the defence contends, it did not choose to have a focus hearing, it must have seen no point in one and the lack of disclosure was irrelevant. In that case, why delay the focus hearing for disclosure? Why not just

schedule it at the request of the Crown and get it out of the way? [ 31 ] Having said that, the transcripts of the various court appearances for scheduling purposes show no concern on the part of the Crown about the accumulating delay. It was, apparently, content to accept the defence’s contention that the focus hearing should not be held until the additional disclosure was received. It is the Crown’s duty to move a case to trial ( R. v. Morin paragraph 62 ).

The accused has no legal obligation to assert the right to a timely trial, although the failure to do so may be relevant in considering any prejudice suffered consequent to delay. [ 32 ] In view of this, I would apportion half of this period of delay to the Crown and the other half to the defence, being rounded to 25 days each. [ 33 ] RE: OCTOBER 2, 2012 TO JUNE 14, 2013 [ 34 ] Criminal discovery was held on October 2, 2012 on the December 2, 2011 Information and the accused was committed to trial.

No further court date was set at that time. [ 35 ] Up to this point, the alleged victim, B.B., had not given a statement, nor had he testified at the preliminary inquiry. However, he spoke with the Crown on October 3, 2012 and was encouraged to talk by the latter, who told him what others have seen and said. The Crown wrote to defence counsel on that day advising of this meeting and that B.B. admitted that he and the accused had kissed on numerous occasions.

B.B. had not talked about the specific charges. [ 36 ] A judicial pre-trial was held November 22, 2012 and B.B.’s disclosure was discussed including what possible use the Crown could make of it at trial. [ 37 ] B.B. gave a statement to OPP Constable Erin Thomas on January 7, 2013. [ 38 ] The judicial pre-trial was continued on February 13, 2013. The Crown wrote to defence counsel on February 14, further to that pre-trial.

The letter states that a new two-count Information would be laid against the accused as a result of the January 7 statement, there would be a summons for March 5, and, as agreed at the pre-trial, there would be criminal discovery as soon as possible. The two new counts would then be added to the existing Indictment. [ 39 ] The Information of February 20, 2013 alleged that the accused sexually assaulted B.B. and sexually interfered with him by having sexual intercourse with him.

The matter was adjourned from March 25 th ’s assignment court to April 26 th ’s assignment court as counsel were awaiting the criminal discovery on the new charges, and again for that reason from April 26 to July 17’s assignment court. [ 40 ] The new charges were scheduled for a preliminary inquiry to take place on June 14. On that date, the charges were stayed at the request of the Crown at the outset, when B.B. refused to cooperate. [ 41 ] The defence would attribute the period from October 2, 2012 to June 14, 2013 to Crown delay.

Defence counsel argued that the matter of the original charges came to a halt as a result of the Crown’s meeting with B.B. on October 3, 2012 and what he called “investigative insistence”. The Crown, he said, had taken an unrecorded statement from B.B. after telling him what other witnesses had said, raising questions for the defence about what use could be made of it and how to proceed. The police then interviewed B.B.. Defence counsel characterized the police’s questions as leading and B.B.’s answers as monosyllabic. That is certainly true of much of the interview.

It was clear that B.B. did not want to participate in the prosecution. Nevertheless, the second Information was laid. [ 42 ] Defence counsel noted that the Crown had been proceeding on the first Information despite B.B.’s initial refusal to make a statement. Further, B.B. had always been accessible to the Crown and police, as he was incarcerated for a large period of time coinciding with this matter. It was the choice of the police not to pursue him until after he had spoken to the Crown. Even then, it was three months before they interviewed him, which delay has not been explained. The accused was left waiting.

Defence counsel said he would have opposed joinder of the charges. [ 43 ] In total, defence counsel said that eight months had been lost in this way. [ 44 ] The Crown argued that it could talk to a potential witness and the defence could have foreseen that it would call B.B. as a witness at trial. Further, the delay from October 2, 2012 to the December 19, 2012 pre-trial was inherent, as the pre-trial conference was a mandatory step and would have been there even irrespective of his interviewing B.B.. Also, at the December 19, 2012 pre-trial, B.B.’s statement was of concern to the defence.

Therefore, the pre-trial was adjourned to February 13, 2013 so that the police could interview him. So, the December 19, 2012 to February 13, 2013 period should be considered to be inherent. [ 45 ] The Crown noted that the police interview with B.B. resulted in further charges being laid. In the period from the February 13, 2013 pre-trial to the abortive preliminary hearing on June 14, both Crown and defence were waiting for the new charges to catch up to the first set, as had been agreed to. The Crown thought that there would be one trial.

He pointed out that, at the court appearance of March 25, 2013, the first one on the first set of charges after the February 13 pre-trial, defence counsel did not appear.

Defence could have appeared and sought a date for trial then. [ 46 ] Then, at the April 26 assignment court, defence counsel’s agent appeared and asked that it go to the July assignment court because the preliminary hearing on the second set of charges had been scheduled. [ 47 ] Therefore, the Crown argued, the period from February 13 to June 14, 2013 should be labelled inherent. [ 48 ] In my view, the delay between the October 2, 2012 criminal discovery and the December 19, 2012 pre-trial, 78 days, is clearly

inherent. [ 49 ] The period from December 19, 2012 to February 13, 2013 was required because of the desire to get B.B.’s statement, which was not obtained until January 7, 2013, a period of about three months from when he spoke to the Crown on October 3, 2012. In the circumstances, I find the delay in getting that statement to be excessive. There has been no explanation of and I see no reason why it took so long for the police to obtain it. It should, in my estimation, have been available for the December 19, 2012 pre-trial, rendering the adjournment unnecessary.

Therefore, the delay from December 19, 2012 to the continuation of the pre-trial on February 13, 2013 is attributable to the Crown, a period of 56 days. [ 50 ] Dealing next with the period from February 13 to June 14, 2013’s abortive pre-trial on the second set of charges, although I am not privy to the discussions at the pre-trial, I am persuaded that the plan going forward from then was as the Crown says. That is, there was agreement to move the new charges through a preliminary inquiry and then join them with the first set in the Superior Court of Justice.

The transcripts of the assignment court appearances support that. On March 25, 2013, defence counsel did not appear, and Crown counsel, who appeared as agent for him, sought an adjournment explicitly because they were waiting on a criminal discovery. On April 26, 2013 at assignment court, defence counsel’s agent requested an adjournment to the July assignment court, again explicitly because there had been a preliminary hearing scheduled.

In these circumstances, I find that the period of 121 days should be attributed to the inherent time requirements. [ 51 ] RE: JUNE 14, 2013 TO APRIL 25, 2014 [ 52 ] After the second set of charges was stayed on June 14, 2013, the next court date for the first set was the assignment court on July 17, to which, as previously noted, they had been adjourned pending the preliminary hearing on the second set. On that date, Crown counsel sought to confirm a pre-set date for a one day s. 11(

b) application and to set dates for a two day trial. The agent for defence counsel did not appear to have instructions regarding the setting of the trial dates. The transcript for July 17 shows that the Crown put on the record the dates that had been canvassed in setting the s. 11(

b) hearing date. The following dates were available to the Crown for that application, but were not available to the defence: August 9, September 27, and October 1 through 3. October 18 was available to the defence but not to the Crown. November 18 was the next available date (although the agent for defence counsel said he understood that it was November 13). The court put the matter to November 18 for the s. 11(

b) application with the caveat that, if that date was in error, it could be addressed at the August 30 assignment court.

Ultimately, the application was heard on November 13, 2013. [ 53 ] As for the trial dates, it was put on record that the following dates had been offered to the defence but that he was unavailable: September 26 and 27, October 1, 2, 3, 17 and 18, November 12 and 13, 18, 19, 28 and 29, and December 9 through 12, and 16 through 20, 2013 Of these, the Crown was unavailable only on October 17 and 18. [ 54 ] The agent for defence counsel said that he had been provided with other dates that the defence would be available, being October 7, 16, 23 and 24, and November 21, 22, and 25 through 28.

He thought that those were for the Charter application, not for trial purposes, and was unsure of whether the court or the Crown was unavailable then. The court indicated that, of these, only November 28 was available to it. The

schedule of trial dates in 2014 was not available yet. The case was adjourned to the August 30, 2013 assignment court to set a date for trial. [ 55 ] In assignment court on August 30, apparently pre-set trial dates of April 24 and 25, 2014 were confirmed. [ 56 ] Defence counsel’s factum attributed the delay from June 14 to July 17, 2013, 33 days, to the Crown. The Crown’s factum seems to suggest that it is neutral. Neither addressed it in submissions.

I find that it is simply the continuation of the adjournment from April 26 to allow for the preliminary inquiry on the second set of charges and would characterize it, also, as inherent. [ 57 ] With respect to the period from July 17, 2013 to trial, defence counsel submitted that August 9 was too soon to obtain the transcripts and prepare for the Charter argument. I agree. Other than that, there were four dates offered over four months in which he was not available, and one in which he, but not the Crown, was. Defence counsel also had offered a number of dates in October which were not acceptable.

November 18 was the next date, and was available. Indeed, the Charter motion was later re-scheduled for November 13. [ 58 ] Beyond that, he noted that the trial dates were not set on the record, only confirmed, and he was not privy to that and did not know how they were arrived at. When queried on how to apportion it, he said that for a short trial such as this, the inherent preparation time would only be one month. The rest is institutional delay.

So, of the 238 days from August 30 to trial, 30 would be inherent and 208 institutional delay. [ 59 ] Crown counsel fairly acknowledged that the defence is not expected to be available all of the time, but submitted that the Crown was more available than the defence, particularly as it was to be a two witness trial and police availability was not a consideration, and suggested that the time be apportioned equally between the Crown and the defence. [ 60 ] This case is somewhat different from others that have come to my attention.

In the others, the delay application was typically brought on the date set for trial, and, in any event, not due to delays caused by the bringing of the Charter application itself. In this case, counsel sought in the assignment court of July 17, 2013 to confirm a pre-set date for the hearing of the Charter application ahead of the trial date, thereby delaying the trial itself. Although there was some confusion as to whether the pre-set date was November 13 or 18 and, ultimately, the application was heard on November 13, it is apparent that both dates were available. The trial was expected to take two days.

Although it is perhaps not ideal to spread a trial over non-consecutive days, it is not uncommon to do so. So, but for the application, it appears that the trial could have been completed on November 18, 2013. That is 124 days from the July 17 assignment court when the date was set. Accepting defence counsel’s contention that it is a short case requiring only a month to prepare, I find that those 30 days are inherent and the balance, 94 days, is institutional.

[ 61 ] I next turn to the 158 day period from November 18, 2013 to April 25, 2014. The impact on the delay calculation of choosing to set the application on what otherwise could have been a trial date was not addressed directly in submissions and, as noted above, was not considered in any of the cases filed by counsel. However, I note the comments of Sopinka J. at paragraphs 44 and 45 of R. v. Morin with respect to the actions of the accused: 44. This aspect of the reasons for the delay should not be read as putting the “blame” on the accused for certain portions of delay.

There is no necessity to impute improper motives to the accused in considering this factor. Included under this heading are all actions taken by the accused which may have caused delay. In this

section I am concerned with actions of the accused which are voluntarily undertaken. Actions which could be included in this category include change of venue motions, attacks on wiretap packets, adjournments which do not amount to waiver, attacks on search warrants, etc. I do not wish to be interpreted as advocating that the accused sacrifice all preliminary procedures and strategy, but simply point out that if the accused chooses to take such action, this will be taken into account in determining what length of delay is reasonable. 45. An example of such actions is provided by Conway, supra.

In Conway, the accused made a number of requests which led to the proceedings being delayed. Those requests included a change of venue motion, changes of solicitor and a request that the accused be allowed to re-elect trial by judge alone. A further example is provide in Bennett, supra, where the accused made an election at his scheduled Provincial Court trial to be tried in the then District Court. This converted a scheduled trial into a preliminary inquiry.

While the type of action of the accused in both these cases was unquestionably bona fide, each action contributed to the delay and must therefore be taken into consideration in determining whether the overall delay suffered by the accused was reasonable . [ 62 ] I take it from this that at least some of the delay from the date of the application to the last date of trial should be attributed to the defence. [ 63 ] Defence counsel noted in submissions that the trial dates were not set on the record, only confirmed, and that he did not know how they were arrived at.

He would apportion the period in question to institutional delay. The Crown’s submissions on point are those that were noted above in dealing with the period up to the application date. That is to say, it is a two witness case, there are no police witnesses so their availability was not a factor, and the Crown had a high degree of availability. Again, he acknowledged that the defence is not required to be perpetually available, but said that the case went to the new year for the defence.

He submitted that the time be split evenly between the defence and institutional. [ 64 ] Keeping in mind that the trial dates were confirmed in the August 30, 2013 assignment court, and not set after the application was heard, there is a delay of about eight months to the trial. With that much lead time, the trial dates could reasonably be expected to have followed the application dates more closely. Unfortunately, there is no evidence as to why the trial dates were set so far off. There is only the explanation submitted by the Crown.

The accused has the ultimate or legal burden of proof throughout (Sopinka J., quoting from R. v. Smith in R. v. Morin at paragraph 33 ). Therefore, I accept the Crown’s suggestion and apportion half of the 158 days, or 79 days to each of the defence and institutional. [ 65 ] The following chart summarizes the attribution of the various periods of delay.

Period Inherent Accused Crown Institutional Nov 15/11 – Apr 18/12 155 days Apr 18/12 – June 6/12 25 25 June 6-19/12 13 June 19 – July 9/12 20 July 9 – July 18/12 9 July 18 – Oct 2/12 76 Oct 2 – Dec 19/12 78 Dec 19/12 – Feb 13/13 56 Feb 13 – June 14/13 121 June 14 – July 17/13 33 July 17 – Nov 18/13 30 94 Nov 18/13 – Apr 25/14 79 79 Totals 446 117 81 249 [ 66 ] Following Nordheimer’s approach in R. v. Sikorski : Total period between arrest and trial 891 days - less time for which defence is responsible 117 days - less inherent time 446 days - leaves 328 days, or about 11 months.

The guidelines for this case suggest a range of 14 to 18 months ( R. v. Morin ). By my calculation, therefore, this case is well within the guidelines. [ 67 ] Having come to that conclusion, I now turn to the matter of prejudice. It is not clear that I must consider prejudice where the relevant delay is well within the guidelines, but I will do so out of an abundance of caution. The accused gave oral evidence as to the prejudice that she has suffered. First, she confirmed that her unsworn affidavit in the Application Record is true and accurate. In

summary, it indicates that her health, familial relationships and teaching career were stable prior to this matter arising. However, after the allegations regarding B.B. surfaced in 2008, she began to suffer from psychological and emotional problems and her family was harassed. Child and Family Services became involved. There are restrictions on who she can have contact with, which affect her own activities and her ability to parent her children and be involved in their activities. She has been hurt financially through the loss of employment and the expense of the case. She separated from her husband in 2008.

In addition, she testified that she has just been diagnosed with cancer and is concerned, in her mental state, about her ability to defend against the charges. [ 68 ] Generally speaking, prejudice may be inferred from the length of delay ( R. v. Morin paragraph 61 ). However, in this case, the delay has been shown to be well within the guidelines such that I am not able to make that inference. Furthermore, it is open to an accused to prove actual prejudice. However, the prejudice to her health that the accused alleges is not clearly linked to the case.

Other forms of prejudice are due to allegations and the fact of being charged, not to the delay in the case. No doubt, the prejudice is exacerbated by delay. However, I noted in analyzing the periods of delay that there was no indication that the defence had done much to expedite the matter. As Sopinka J. indicated in R. v.

Morin (paragraphs 62 and 78 ), while there is no legal obligation on the accused to assert the right to a timely trial, her inaction may be taken into account in assessing prejudice. [ 69 ] In light of this, I do not find that the accused has suffered any prejudice as a result of delay in this matter that would assist her in this application. There is a societal interest in having the charges dealt with on their merits which is not outweighed by any prejudice she has suffered. [ 70 ] The application is dismissed.

This is without prejudice to a new application being brought on the basis of a demonstrable change in the situation. [ 71 ] COMMENT ON MATERIALS [ 72 ] The Superior Court of Justice Criminal Proceedings Rules govern and specify the documents required for such cases as this. One is the Application Record. It is to include, among other things, affidavits and transcripts. Presumably these are the source of the facts upon which arguments will be based. Factums are also required. They are to include a

summary of the facts. As I understand it, the facts to be summarized would be found in the Application Record. In this matter, the factums contained facts which were not sourced from other documents, but obviously from the knowledge of counsel about the case. In places, the factum of the accused read like an unsworn affidavit. Had there been any objection, the court might have had to consider striking parts of the factum. That would have left an incomplete factual basis on which to argue and decide the matter.

For future cases, counsel are encouraged to ensure that the facts on which their arguments are based are properly laid out so as, at least, to avoid objections and the possible consequences thereof to their arguments. ___________________________ Justice James A. S. Wilcox Released: December 17, 2013