SUPREME
COURT OF CANADA
Between:
Her
Majesty The Queen
Appellant
and
Kenneth
Gavin Williamson
Respondent
- and -
Attorney
General of Alberta,
British
Columbia Civil Liberties Association and
Criminal
Lawyers’ Association (Ontario)
Interveners
Coram: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis,
Wagner, Gascon, Côté and Brown JJ.
|
Joint Reasons for Judgment:
(paras. 1 to
39)
Reasons Concurring in the Result:
(paras. 40 to
42)
Dissenting Reasons:
(paras. 43 to
86)
|
Moldaver,
Karakatsanis and Brown JJ. (Abella and
Côté JJ. concurring)
McLachlin C.J.
Cromwell J.
(Wagner and Gascon JJ. concurring)
|
R. v. Williamson, 2016 SCC 28,
[2016] 1 S.C.R. 741
Her Majesty The Queen Appellant
v.
Kenneth Gavin Williamson Respondent
and
Attorney General of Alberta,
British Columbia Civil Liberties
Association and
Criminal Lawyers’ Association
(Ontario) Interveners
Indexed as: R. v.
Williamson
2016 SCC 28
File No.: 36112.
2015: October 7; 2016: July 8.
Present: McLachlin C.J. and Abella, Cromwell, Moldaver,
Karakatsanis, Wagner, Gascon, Côté and Brown JJ.
on appeal from the court of appeal for ontario
Constitutional
law — Charter of Rights — Right to be tried within reasonable time — Delay of
nearly three years between charges and end of trial — Whether accused’s right
to be tried within reasonable time under s. 11 (b) of Canadian Charter of
Rights and Freedoms infringed — New framework for determining s. 11 (b)
infringement applied.
W
was charged in January 2009 for historical sexual offences
against a minor. His trial ended in December 2011. W applied for a stay of proceedings
due to the delay. The trial judge dismissed the application and W was
convicted. The Court of Appeal allowed the appeal and entered a stay.
Held (Cromwell, Wagner and Gascon JJ. dissenting): The
appeal should be dismissed.
Per
Abella, Moldaver, Karakatsanis, Côté and Brown JJ.: Applying the new
framework established in the companion appeal of R. v. Jordan, 2016 SCC
27, [2016] 1 S.C.R. 631, W’s right to be tried within a reasonable time under
s. 11 (b) of the Canadian Charter of Rights and Freedoms was
infringed.
The
delay between the charges and the end of trial was approximately 35.5 months. W
did not waive any of this delay, and solely caused only one and a half months
of it. Subtracting this defence delay leaves 34 months. This is still above the
30‑month presumptive ceiling established in Jordan for cases going
to trial in the superior court. The delay is therefore presumptively
unreasonable. Here, the Crown has failed to discharge its burden of showing
that the delay is reasonable. The record does not disclose any delay caused by
discrete, exceptional circumstances, and the case does not remotely qualify as
exceptionally complex.
In
addition, since W was charged before the release of Jordan, the
transitional exceptional circumstance established in Jordan may apply.
As stated in Jordan, the transitional exceptional circumstance will
apply when the Crown satisfies the court that the time the case has taken is
justified based on the previous legal framework, upon which the parties reasonably
relied.
While
this is a close case, the transitional exceptional circumstance does not apply.
In other words, the Morin framework cannot justify the nearly three
years it took to bring W to trial on relatively straightforward charges.
Although W did not suffer significant prejudice, the case was simple, the Crown
did little to combat the substantial institutional delay, and W was reasonably
proactive in attempting to move the matter along. Therefore, while the crimes
committed by W are very serious, the balance weighs in favour of his interests
in a trial within a reasonable time, over the societal interest in a trial on
the merits. At nearly three years, this straightforward case took far longer to
try than it should have.
Per
McLachlin C.J.: Applying the revised Morin framework (R. v.
Morin, [1992] 1 S.C.R. 771) proposed by the minority in R. v. Jordan,
2016 SCC 27, [2016] 1 S.C.R. 631, the Court of Appeal did not err in entering a
stay of proceedings.
Per
Cromwell, Wagner and Gascon JJ. (dissenting): This is a close case of
excessive delay that is not clearly unreasonable. This is the sort of case in
which a balancing of interests is critical in assessing unreasonable delay.
Even in such a case, the new framework developed by the majority in R. v.
Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, for determining whether a
person’s right under s. 11 (b) of the Canadian Charter of Rights
and Freedoms to a trial within a reasonable time has been violated, does
not allow for consideration of the strong societal interest in resolving the
serious charges against W on their merits. The new framework does not permit
the sort of balancing of interests that is inherent in the concept of
reasonableness.
A
reasonable period for this type of case to be prepared and tried was assessed
at seven months. The reasonable institutional delays for both levels of court
totalled 18 months, based on the upper end of the range under the guidelines in
R. v. Morin, [1992] 1 S.C.R. 771. The reasonable time requirements of
this case were therefore 25 months. The case in fact took 35.5 months. Five of
those months should not be counted against the state: two months were fairly
attributed to the defence and three months resulted from a scheduling issue at
the preliminary inquiry stage. The difference between the 30.5 months which
count against the state and the 25 months reasonably required for a case of
this nature exceeds the reasonable time requirements of a case like this one by
5.5 months.
While
this is not an insignificant period of time, it is not clearly unreasonable and
the final balancing of relevant factors is therefore critical. For the
trial judge, that balancing resulted in a finding that the delay was not
unreasonable. He found that there was no actual prejudice, and there was no
basis for the Court of Appeal to take a different view of this matter; the
concept of “inferred prejudice” is not a useful one and, in any event, the
trial judge’s analysis of this issue under the then‑existing law
contained no error. The trial judge also found that there was a very high
societal interest in having W tried on the merits for these very serious
charges. This is not to say that the societal interest in resolution on the
merits can ever justify what is otherwise a clearly unreasonable delay. But in
a case like this one, in which the delay is excessive but not so long as to be
clearly unreasonable, it is one of the considerations that should be taken into
account. The jurisprudence has been clear that societal interests underlie the
concept of reasonableness. The trial judge also accepted the impact of the
temporary and exceptional pressure on the dockets of both the provincial court
and the superior court at the relevant time. This sort of pressure is a factor
that should result in the Morin guidelines being applied flexibly.
These
are relevant considerations and there was no error in the judge’s weighing of
them. Taking all of these considerations into account, there was also no error
in the trial judge’s ultimate conclusion that the delay here was not
unreasonable. In this case, staying these charges would be more publicly
disreputable for the administration of justice than tolerating an inordinate
trial delay. The judgment of the Court of Appeal should therefore be set aside
and the convictions entered at trial reinstated.
Cases Cited
By Moldaver, Karakatsanis and Brown JJ.
Applied:
R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631; referred to: R.
v. Morin, [1992] 1 S.C.R. 771; R. v. Harrison, 2009 SCC 34, [2009] 2
S.C.R. 494; R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3; R. v.
D. (R.), 2008 BCCA 339, 235 C.C.C. (3d) 28; R. v. MacPherson,
2015 ABCA 139, 323 C.C.C. (3d) 428; R. v. Scott, 2015 SKCA 144, 333
C.C.C. (3d) 310; R. v. MacMunn, 2008 ONCA 520, 173 C.R.R. (2d) 242.
By
McLachlin C.J.
Applied:
R. v. Morin, [1992] 1 S.C.R. 771; referred to: R. v. Jordan,
2016 SCC 27, [2016] 1 S.C.R. 631.
By Cromwell J. (dissenting)
R.
v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631; R. v. Morin, [1992] 1
S.C.R. 771; R. v. Ralph, 2014 ONCA 3, 299 C.R.R. (2d) 1; R. v. Steele,
2012 ONCA 383, 288 C.C.C. (3d) 255.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms,
s. 11 (b).
APPEAL
from a judgment of the Ontario Court of Appeal (Rosenberg, MacPherson and
Lauwers JJ.A.), 2014 ONCA 598, 324 O.A.C. 231, 314 C.C.C. (3d) 156, [2014]
O.J. No. 3828 (QL), 2014 CarswellOnt 11147 (WL Can.), setting aside a
decision of Tranmer J., 2011 ONSC 5930, [2011] O.J. No. 4423 (QL),
2011 CarswellOnt 10327 (WL Can.). Appeal dismissed, Cromwell, Wagner and Gascon
JJ. dissenting.
Eric H.
Siebenmorgen
and Tracy
Kozlowski,
for the appellant.
John H. Hale, for the respondent.
Jolaine Antonio, for the intervener the
Attorney General of Alberta.
Tim A. Dickson and Martin Twigg, for the intervener the British
Columbia Civil Liberties Association.
Frank Addario and Erin Dann, for the intervener the
Criminal Lawyers’ Association (Ontario).
The judgment
of Abella, Moldaver, Karakatsanis, Côté and Brown JJ. was delivered by
Moldaver, Karakatsanis
and Brown JJ. —
I.
Introduction
[1]
The respondent, Mr. Williamson, says his right
to be tried within a reasonable time under s. 11 (b) of the Canadian
Charter of Rights and Freedoms was infringed. The trial judge found no s.
11 (b) infringement. The Court of Appeal disagreed and entered a stay of
proceedings.
[2]
In the companion appeal of R. v. Jordan,
2016 SCC 27, [2016] 1 S.C.R. 631, we stated a new framework for determining
whether s. 11 (b) has been infringed. Applying that framework in this
case, including its transitional features, we conclude Mr. Williamson’s right
to be tried within a reasonable time was infringed. We would therefore dismiss
the appeal.
II.
Facts
[3]
Mr. Williamson was charged in January 2009 with
historical sexual offences against a minor. He elected trial by judge and jury,
and a preliminary inquiry was set for November 2009. Three days before the
preliminary inquiry was to begin, Crown counsel learned that a continuation of
another matter had been set for the same date and the assigned judge would not
be able to conduct Mr. Williamson’s preliminary inquiry. The Crown cancelled
its witnesses, but neglected to inform Mr. Williamson of this development.
[4]
Mr. Williamson appeared in court with his
counsel on the date scheduled for the preliminary inquiry. He learned that the
continued matter had been given priority, but that the assigned judge was
nevertheless available to conduct his preliminary inquiry that afternoon.
However, since the Crown had cancelled the witnesses, the preliminary inquiry
was rescheduled to February 2010. Shortly after this adjournment, defence
counsel wrote to Crown counsel stating: “We continue to be anxious to move
forward in this matter which regrettably could not proceed today due to
administrative and institutional delay.”
[5]
The parties all appeared for the scheduled
preliminary inquiry date in February 2010, but a mix-up led them to believe
that the assigned judge and the investigating officer were not available. The
preliminary inquiry was rescheduled for May 2010.
[6]
At the preliminary inquiry, by agreement of the
parties, the only evidence heard was that of the complainant. The Crown and
defence agreed that this was the only evidence relevant to committal. They
jointly submitted to the court that in order to use time “effectively”, the
Crown would make the police witnesses available to the defence to be examined
out of court. The preliminary inquiry was completed in May 2010 and Mr.
Williamson was committed for trial in the Superior Court of Justice.
[7]
Matters in the Superior Court proceeded slowly.
In October 2010, trial dates were set for December 2011. No earlier trial dates
were available because Mr. Williamson had elected trial by jury in Kingston,
where one of the two jury courtrooms was already monopolized by a long and
high-profile multiple-murder trial.
[8]
Mr. Williamson was released on bail soon after
his arrest in January 2009, and he remained on bail until the start of trial in
December 2011. His bail conditions were as follows: in addition to the standard
conditions, he was prohibited from contacting the complainant; from being in
the presence of anyone under the age of 16 without another adult present; and
from seeking or maintaining active employment where such employment would
require him to be in a position of trust or authority with a person under the
age of 16 years.
[9]
Mr. Williamson complained that his bail
conditions made it difficult for him to maintain a relationship with his
13-year-old nephew. He wrote to the Crown in November 2010 to request a
variation of his bail conditions to enable him to spend time alone with his
nephew. The Crown opposed the request and Mr. Williamson did not pursue the
matter by way of a formal application.
[10]
Mr. Williamson indicated he had been suspended
from his job as a teacher with pay while the charges were pending. A term of
this suspension required Mr. Williamson to remain available and ready to work
each day in the event that his employer required him. This left him unable to
find other employment or volunteer opportunities.
[11]
Mr. Williamson’s father became ill during the
time that these charges were pending, and he moved to Ottawa to care for his
parents. He also stated that, though he enjoyed support from his family,
friends and colleagues, he felt isolated and had difficulty maintaining
relationships while he was awaiting trial. The charges against him were
publicized in the media, which caused him to suffer additional stress and anxiety.
III.
Judgments Below
A.
Ontario Superior Court of Justice, 2011 ONSC
5930
[12]
The trial judge heard the s. 11 (b) Charter
application several months before the jury trial was scheduled to begin. He
determined that the total length of delay from the time of the charges to the
anticipated end of the trial was 35 months. The Crown and defence agreed that
Mr. Williamson had not waived any of the periods of delay. The trial judge
found that there were approximately eight months of inherent delay, one month
of delay attributable to the Crown, and 26 months of institutional delay.
Approximately 12 months of this institutional delay occurred in the Ontario
Court of Justice, primarily due to the fact that the preliminary inquiry was
adjourned twice. Thirteen and a half months of this institutional delay
occurred in the Superior Court, chiefly due to the difficulty in scheduling a
jury trial in Kingston throughout 2010 and 2011.
[13]
The trial judge rejected Mr. Williamson’s
assertion that he had suffered actual prejudice as a result of the delay. He
found that most of the negative effects that Mr. Williamson had testified to
resulted from the fact of being charged or from Mr. Williamson’s own decisions.
The judge did, however, note that Mr. Williamson suffered stress as well as emotional
and financial costs as a result of the two adjournments to the preliminary
inquiry. The trial judge considered whether he should infer prejudice based on
the length of the delay alone. He inferred some, but found that it was not
significant.
[14]
The trial judge ultimately found that Mr.
Williamson had not proved an infringement of his s. 11 (b) right, and he
declined to enter a stay. Mr. Williamson was subsequently convicted of buggery,
indecent assault, and gross indecency.
B.
Ontario Court of Appeal, 2014 ONCA 598, 324
O.A.C. 231
[15]
Mr. Williamson appealed his convictions and the
decision denying a stay. The Court of Appeal found that the trial judge had
correctly attributed the delay, save for two months, which the Court attributed
to the defence based on defence counsel’s unavailability. It varied the total
institutional delay to 25 months, and noted that the Crown delay was one month.
[16]
The Court of Appeal agreed with the trial judge
that Mr. Williamson did not establish any actual prejudice. It determined,
however, that the trial judge gave insufficient weight to the inferred
prejudice, given the length of the delay. The Court of Appeal had inferred
prejudice for similar periods of delay in prior cases. Based on these cases,
the trial judge should have inferred significant prejudice. In balancing the
prejudice against society’s interest in having the case heard on the merits,
the Court of Appeal noted that the charges were serious, there was no actual
prejudice, Mr. Williamson was on bail but “was not subject to particularly
onerous restrictions” (para. 66), he was being paid his salary for the entire
time the charges were pending, and there was no prejudice to his ability to
make full answer and defence.
[17]
The Court of Appeal nevertheless held that the
trial judge erred in refusing a stay since the inferred prejudice was
significant, the institutional delay exceeded the guidelines in R. v. Morin,
[1992] 1 S.C.R. 771, the prosecution was “straightforward” (para. 67), not
complex, and the defence had been diligent in attempting to move the matter to
trial quickly. It found that Mr. Williamson’s interest in a trial within a
reasonable time outweighed society’s interest in having the matter tried on its
merits, and the Court of Appeal entered a stay of proceedings.
IV.
Analysis
[18]
This case was heard at the same time as the
companion appeal in Jordan. The new framework for assessing whether
there has been a breach of s. 11 (b) of the Charter that we
outlined in Jordan, including its transitional features, must be applied
in this case to determine whether Mr. Williamson’s right to be tried within a
reasonable time has been infringed.
[19]
As we said in Jordan, the first step in
deciding a s. 11 (b) application is to ascertain the total length of time
between the charge and the actual or anticipated end of trial. Mr. Williamson
was charged on January 7, 2009, and his trial was completed on December 20,
2011. The total delay was approximately 35.5 months.
[20]
The next step is to determine whether any of
this delay was waived by the defence or solely caused by the defence, and to
subtract any portions of such delay. The trial judge found that Mr. Williamson
did not waive any of the delay and the Court of Appeal affirmed this finding.
We see no reason to interfere with this conclusion.
[21]
With respect to delay caused solely by the
defence, the Court of Appeal attributed it two months. The reason for this
attribution requires some explanation. Mr. Williamson was committed to stand
trial in the Superior Court on May 7, 2010. The parties then discussed dates
for his first appearance. The clerk offered four dates: June 23, July 7, July
21, or August 4, 2010. Mr. Williamson had a family commitment, so the defence
selected August 4, 2010 for the first appearance in the Superior Court. Since the
court could accommodate the matter as early as June 23, the Court of Appeal
attributed the delay from June 23 to August 4 to the defence.
[22]
We agree with the Court of Appeal that the
period from June 23 to August 4, 2010 is delay caused solely by the defence
because it is time where the court was available and ready to proceed but the
defence was not, and the delay was not associated with legitimate defence
preparation time. However, since the period of time from June 23 to August 4,
2010 is exactly six weeks, the defence is only responsible for one and a half
months of delay.
[23]
Subtracting one and a half months of defence
delay leaves a total delay of 34 months. This is still above the 30-month
ceiling established in Jordan for cases going to trial in the superior
court. The delay is therefore presumptively unreasonable. The Crown bears the
onus of showing that the delay is reasonable, having regard to the presence of
exceptional circumstances. The record does not disclose any delay caused by
discrete, exceptional circumstances in this case, and the case does not
remotely qualify as exceptionally complex.
[24]
However, since Mr. Williamson was charged before
the release of Jordan, we must consider whether the transitional
exceptional circumstance applies. As we said in Jordan, the transitional
exceptional circumstance will apply when the Crown satisfies the court that the
time the case has taken is justified based on the previous legal framework,
upon which the parties reasonably relied. The assessment is necessarily
contextual, and should account for the manner in which that framework was
applied.
[25]
In our view, although this is a close case, the
transitional exceptional circumstance does not apply and, therefore, the delay
is unreasonable. A variety of factors support this conclusion.
[26]
First, the case against Mr. Williamson was
straightforward. It involved the evidence of one complainant, one police
officer, a videotaped police interview of Mr. Williamson, and the testimony of
Mr. Williamson himself. His trial ultimately took 13 days — six days for
pre-trial applications (two of which were devoted to the s. 11 (b)
application), and seven days for the trial proper. This was by no means a
complex case. Indeed, the trial judge estimated the total inherent time requirements
of the case as being approximately eight months.
[27]
Second, the 25-month institutional delay found
by the Court of Appeal exceeded the upper end of the Morin guidelines by
roughly seven months. Specifically, in the Provincial Court, Mr. Williamson twice
attended preliminary hearing dates, only to be turned away because of
scheduling issues — even though the Crown appears to have been aware of some of
them in advance. The trial judge was rightly concerned about the loss of the
two preliminary inquiry dates, about which he wrote: “The accused and his
lawyer travelled from Ottawa on both of these dates without prior notice that
the proceedings would be adjourned. This is most unfortunate and of concern to
this court and relevant to the s. 11 (b) application” (para. 14 (CanLII)). All
told, it took approximately a year to complete the preliminary inquiry.
[28]
In the Superior Court, while it was reasonable
to expect some additional delay in scheduling the trial due to the shortage of
jury trial courtroom time in Kingston, the Crown appears to have been content
to accept the resulting institutional delay, demonstrating no effort to
mitigate it. This is particularly troubling because significant delay had
already elapsed in bringing this matter to trial: the problems in the Superior
Court transpired directly following the considerable difficulties experienced
in the Provincial Court. In this regard, we note that for pre-trial
applications — which consumed about half of the total trial time — a jury
courtroom was not required. The record does not disclose whether the Crown
could have been successful if it had attempted to expedite the trial. However,
the point is simply that the Crown made no effort. As the Court of Appeal
wrote, “the Crown . . . [did not take] seriously the obligation to bring this
relatively straightforward case to trial in a reasonable time” (para. 67).
[29]
Third, the Crown’s lack of initiative is in
contrast to Mr. Williamson’s repeated efforts to expedite the proceedings. As
mentioned, defence counsel wrote to Crown counsel after the preliminary inquiry
was first adjourned in November 2009, stating that the defence was anxious to
move forward with the matter. Defence counsel raised the delay issue again when
the preliminary inquiry was adjourned a second time in February 2010. Further,
the defence sought earlier dates for the preliminary inquiry, indicating its
desire to move forward expeditiously. The defence also cooperated with the
Crown to streamline the evidence and to use court time efficiently during the
preliminary inquiry. All of these facts demonstrate that, as the Court of
Appeal observed, “the defence was diligent in attempting to move the matter
along” (para. 67).
[30]
Ultimately, we agree with the Court of Appeal
that, while the s. 11 (b) question in this case is “very difficult”
(para. 64), looking at the big picture, the previous state of the law cannot
justify the nearly three years it took to bring Mr. Williamson to trial on
relatively straightforward charges. As the Court of Appeal observed, while the
crimes committed by Mr. Williamson are very serious, “the balance weighs in
favour of [his] interests in a trial within a reasonable time, over the
societal interest in a trial on the merits” (para. 68). Although Mr. Williamson
did not suffer significant prejudice, the case was simple, the Crown did little
to combat the substantial institutional delay that plagued the prosecution, and
Mr. Williamson was reasonably proactive in attempting to move the matter along.
Not even the absence of significant prejudice to Mr. Williamson’s Charter -protected
interests can stretch the bounds of reasonableness this far.
[31]
Before concluding, we wish to comment briefly on
our colleague Justice Cromwell’s use of the following two factors to justify
his conclusion: Mr. Williamson’s guilt; and the seriousness of his offences.
[32]
At the beginning of his reasons, Cromwell J.
references Mr. Williamson’s guilt (paras. 43-44). This is troubling, as the
ultimate question of guilt or innocence has nothing to say about whether
the time taken to try him was reasonable. At the time of his s. 11 (b) application, Mr. Williamson
was presumptively innocent. It is wrong to give after-the-fact effect to his
convictions when the only question presented by this appeal is whether his
right to be tried within a reasonable time was infringed at the time the
application was brought.
[33]
Our colleague’s analysis also demonstrates the
difficulties that stem from considering the seriousness of the offence as an
analytical factor in the s. 11 (b) analysis.
[34]
First, a person’s right to a trial within a
reasonable time cannot be diminished based solely on the nature of the charges
he or she faces. As this Court wrote in R. v. Harrison, 2009 SCC 34, [2009] 2
S.C.R. 494, at para. 40, “Charter protections must be construed so as to
apply to everyone, even those alleged to have committed the most serious
criminal offences.” Many appellate courts across the country, including this
one, have stayed serious charges, even when the total delay (minus defence
delay) was less than that in this appeal.[1]
[35]
In this regard, we note that s. 11 (b)
guarantees the right “to be tried within a reasonable time”. It does not admit
of gradients of reasonableness where the charges are serious. For example, it
does not guarantee the right to be tried within “somewhat longer” than a
reasonable time, or within a time that is “excessive but not so long as to be
clearly unreasonable” when the charges are serious (Cromwell J., at
paras. 43 and 80). Delay is either unreasonable, or it is not. As a
result, our point of departure with our colleague is on what we consider
reasonable. In short, we have different perspectives on a subjective standard.
[36]
Second, while our colleague uses the seriousness
of the offence to dilute the constitutional right to a trial within a
reasonable time, we consider that the Charter right is respected, and
the public interest is best served, by trying serious charges on their merits
in a timely fashion. These are precisely the cases that should be heard
promptly, on the strongest possible evidence.
[37]
Third, the seriousness of the offence does not
sit comfortably with the notion of reasonable time. Some grave charges
require very little time to be tried, while some less serious charges require
more time.
[38]
We agree with our colleague that the charges
against Mr. Williamson are grave. Like the Court of Appeal, we reach our
conclusion “with great reluctance” (para. 68). The victim underwent the ordeal
of a criminal trial, and Mr. Williamson was eventually convicted by a jury of
his peers. But as we discussed in Jordan, timely justice is one of the
hallmarks of a free and democratic society. This case is an example of how
delay works to the detriment of everyone. Conversely, timely justice accrues to
the benefit of all.
V.
Conclusion
[39]
Whether we apply the pre-Jordan test or
the new framework, we find that the delay is unreasonable. At nearly three
years, this relatively straightforward case took far longer than it reasonably
should have. We would therefore dismiss the appeal.
The following are the reasons
delivered by
[40]
The Chief
Justice — Applying the revised Morin
framework (R. v. Morin, [1992] 1 S.C.R. 771) proposed by Cromwell J. in R.
v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 (released concurrently), I
cannot conclude that the Court of Appeal erred in entering a stay of
proceedings.
[41]
I am not persuaded that the Court of Appeal
erred: (1) in assessing the total institutional and Crown delay at 26 months
(yielding an “excess delay” of at least 8 months); or (2) in holding that the
Crown bears the burden of showing that despite docket delay, it took or even
considered feasible steps to bring the case to trial within a reasonable time.
Nor am I persuaded that societal interests justify the delay. As this Court has
stated repeatedly, all accused persons — even those charged with heinous
criminal offences — benefit from the guarantees of the Canadian Charter
of Rights and Freedoms .
[42]
For the foregoing reasons, I would dismiss the
appeal.
The reasons of Cromwell,
Wagner and Gascon JJ. were delivered by
Cromwell J. (dissenting) —
I.
Introduction
[43]
The majority of the Court finds that Kenneth
Gavin Williamson, a person convicted by a jury of sexually abusing a child,
must go free because his trial took somewhat longer than what would have been a
reasonable time. This case is, as the majority notes, a close one; it is close
in the sense that the delay was excessive — the case took longer than it should
have — but that excessive delay is not clearly unreasonable. In short, this is
the sort of case in which a balancing of interests is critical in assessing
unreasonable delay. But even in a close case like this one, the new framework
developed by the majority in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R.
631, released concurrently, does not allow for consideration of the strong
societal interest in resolving these serious charges on their merits. The new
framework does not permit the sort of balancing of interests that is inherent
in the concept of reasonableness. In my respectful view, the Constitution does
not mandate this sort of analysis or require the result it produces in this
appeal.
[44]
Mr. Williamson, the respondent on this Crown
appeal, was convicted by a jury of buggery, indecent assault, and gross
indecency. The offences involved “gross sexual misconduct” by Mr. Williamson
when he was 26 years old against a 12-year-old complainant with whom Mr.
Williamson was in a “big brother” type relationship: 2011 ONSC 5930, at para.
66 (CanLII). The alleged abuse involved multiple forced sexual acts that
occurred repeatedly over a “significant period of time”: ibid. At the
time in question, Mr. Williamson was assigned to be a mentor-advocate to the
complainant through a juvenile diversion program.
[45]
The Court of Appeal set aside these convictions
and entered a judicial stay of proceedings: 2014 ONCA 598, 324 O.A.C. 231. The
court concluded that, contrary to the view of the trial judge, Mr. Williamson’s
right under the Canadian Charter of Rights and Freedoms to a trial
within a reasonable time had been violated. The trial took about five months
longer than it reasonably should have and the trial judge found as a fact that
Mr. Williamson had not suffered any actual prejudice.
[46]
The Crown appeals. The only issue in this Court
concerns unreasonable delay.
[47]
In my respectful view, the Court of Appeal erred
in law in reversing the trial judge’s conclusion that this trial was conducted
within a reasonable time. I would therefore set aside the judgment of the Court
of Appeal and reinstate the convictions entered at trial.
II.
Facts and Judicial History
A.
Ontario Superior Court of Justice
[48]
Justice Tranmer of the Ontario Superior Court of
Justice dismissed Mr. Williamson’s application for a stay of proceedings for
unreasonable delay.
[49]
First, he found that the relevant time period
for the Williamson matter, from the initial charge to the conclusion of the
trial, totalled 35 months and 15 days. He then classified the periods of delay
as follows:
•
Inherent requirements: 8 months (2 months, 17 days in provincial
court; 5 months, 15 days in superior court)
•
Defence delay: none
•
Institutional delay: 26 months (12 months, 11 days in provincial
court; 13 months, 20 days in superior court)
•
Crown delay: 1 month, 4 days
[50]
The judge attributed one month and four days to
Crown delay for the period leading up to setting the preliminary inquiry and
focus hearings, because the Crown delayed disclosure of two critical
audio-visual recorded interviews of the complainant. He attributed the delay
caused by the rescheduled preliminary inquiry to institutional delay,
presumably because there was no explanation for this difficulty in scheduling.
The parties agreed that the months before the hearings before the superior
court were inherent delay. Tranmer J. accepted this agreement, but also wrote
that two of those months “could well be attributed to the defence” given that
the defence declined two earlier dates for these hearings: para. 36. He then
attributed the pre-trial conference delays to inherent delay, even though the
defence requested the adjournments, because Crown counsel was unavailable to
attend or there was limited evidence as to Crown availability. Finally, the
trial judge characterized the time frame whereupon the defence brought forward
many pre-trial motions to institutional delay, because scheduling such motions
prior to trial is “good practice” and “a necessary part of the trial scheduling
as a whole”: para. 44.
[51]
The trial judge next considered whether Mr.
Williamson had suffered prejudice. In his affidavit before the trial judge, Mr.
Williamson claimed that he suffered prejudice given that he was suspended from
teaching with pay and had to constantly be available on short notice in case he
was called in to work, that his bail conditions negatively affected his
relationship with his brother and his nephew, that he has lost touch with
former colleagues having since moved to Ottawa, and that he was subject to
media and professional scrutiny and now suffers from stress and emotional
upset: paras. 7-10. The trial judge rejected these arguments, stating that
these matters were either caused by the charge itself (not the delay), or were
self-imposed.
[52]
He did, however, find that the “unexpected
adjournment[s]” of the preliminary inquiry were “most unfortunate and most
inappropriate” on the facts before the court: para. 56. He did not, however,
find that these adjournments amounted to much prejudice. He also noted that the
accused had not filed any medical evidence of prejudice.
[53]
Overall, the trial judge found that 35 months of
delay was a sufficient basis upon which to infer prejudice to Mr. Williamson.
However, this prejudice was minimized because accounts were preserved in
reliable forms in this case. Overall, the trial judge concluded that Mr.
Williamson had not proven actual prejudice, and that he did not suffer
significant inferred prejudice.
[54]
The trial judge considered the facts that the
total institutional delay in this case exceeded the midpoint of the guidelines
in R. v. Morin, [1992] 1 S.C.R. 771, by 10 months, despite the relative
simplicity of the case; there was no actual prejudice and no significant
inferred prejudice; and the very high societal interest in protecting
vulnerable children and in prosecuting serious charges against Mr. Williamson
in this case. Despite being a “borderline case”, the trial judge found that Mr.
Williamson’s s. 11 (b) claim failed: para. 75.
B.
Ontario Court of Appeal
[55]
On appeal, Mr. Williamson argued that the trial
judge erred in refusing to grant his application for a stay under s. 11 (b).
The Court of Appeal agreed, overturned the trial judge’s decision, and granted
him a stay.
[56]
Justice Lauwers for the court re-characterized
the trial judge’s attributions of delay, and overall, reclassified one month as
inherent instead of institutional, and two months as defence-caused instead of
inherent.
[57]
With respect to the period from committal to the
first appearance before the Superior Court of Justice, the Court of Appeal
reclassified two months of the delay to the defence. The trial judge had
written that “two months could well be attributed to the defence”, given that
two earlier available dates before the Superior Court were declined by the
defence: C.A. reasons, at para. 30.
[58]
The trial judge classified all the period from
setting the dates for the pre-trial applications through to the trial as
institutional delay. The Court of Appeal reclassified one month of this delay
as inherent delay to account for the fact that the parties had to prepare for
the pre-trial motions.
[59]
The Crown also argued that some of this delay
should be re-characterized as defence-caused, given that the defence chose to
elect trial by jury in Kingston, which had limited resources. The Court of
Appeal found that the Crown should have sought alternative arrangements in response
to the institutional delay caused by this election: “The Eastern Region of the
Superior Court has plenty of locations and judges; the trial could have been
accommodated earlier” (para. 42).
[60]
The Court of Appeal found that the trial judge
erred in treating the time leading up to trial as wholly institutional; some of
this time should have been classified as inherent delay to account for
preparation time. No evidence was tendered, however, on the issue as to defence
counsel’s availability for trial. Given that this was a “relatively simple
case”, the court attributed “virtually no time to trial preparation”: para. 44.
[61]
The institutional delay in this case exceeded
the Morin guidelines by more than two months in provincial court, and by
more than four months in superior court. With the added Crown delay of one
month and four days, the overall excess over the guidelines was eight months.
The total institutional and Crown delay was approximately 26 months: C.A.
reasons, at para. 46.
[62]
On the issue of prejudice, the Court of Appeal
agreed with Mr. Williamson’s submission that the trial judge erred in failing
to appropriately weigh the inferred prejudice he suffered given the length of
the delay. Given the similar delays in R. v. Ralph, 2014 ONCA 3, 299
C.R.R. (2d) 1, and R. v. Steele, 2012 ONCA 383, 288 C.C.C. (3d)
255, “it must be inferred that the appellant has experienced significant
prejudice”: C.A. reasons, at para. 57. The court found that the trial judge
erred in finding that this delay was “not significant”, citing the “exquisite
agony” of awaiting trial and the stigma involved: ibid.
[63]
The Court of Appeal balanced the high societal
interest of prosecuting “especially despicable” crimes (para. 66) like those
with which Mr. Williamson was convicted against the accused’s constitutional
rights: paras. 58-68. However, the court concluded that the trial judge erred
in refusing a stay because the inferred prejudice suffered by Mr. Williamson
was significant. The institutional and Crown delay of 26 months was not
justified. The Crown did not take sufficient steps to bring this simple case to
trial, while the defence was diligent in moving the proceedings along.
[64]
It may be helpful to summarize the trial judge’s
and the Court of Appeal’s conclusions respecting the various types of delay in
a table:
|
Delay
Category
|
Trial
Judge’s Totals
|
Court
of Appeal’s Totals
|
|
Intake/Inherent
Time Requirements
|
8
months (2 months, 17 days in provincial court; 5 months, 15 days in superior
court)
|
7
months (2 months, 17 days in provincial court; 4 months, 15 days in superior
court)
|
|
Defence
Delay
|
None
|
2 months
|
|
Institutional
Delay
|
26
months (12 months, 11 days in provincial court; 13 months, 20 days in
superior court)
|
25
months (12 months, 11 days in provincial court; 12 months, 20 days in
superior court)
|
|
Crown
Delay
|
1 month,
4 days
|
1 month,
4 days
|
III.
Analysis
[65]
The judgments in the Superior Court of Justice
and the Court of Appeal, of course, did not apply the revised Morin
framework that I set out in Jordan. However, those findings can fairly
easily be considered within it.
A.
An Inquiry Into Delay Was Justified
[66]
I agree with the trial judge that the delay of
35.5 months from charge to the end of the scheduled trial is sufficient to
trigger an inquiry as to whether the delay was unreasonable.
B.
What Is a Reasonable Time for the Disposition of
a Case Like This One?
(1)
Inherent Time Requirements
[67]
The trial judge identified the periods of
combined inherent delay present in the provincial and superior courts as being
eight months. I agree with the Court of Appeal’s reclassification of some of
the institutional delays as inherent, to account for the preparation involved
in the pre-trial motions and for the trial.
[68]
While neither court explicitly approached this
calculation according to this new framework, the courts did objectively
determine many of the periods of inherent delay by estimating the reasonable
time for preparation given the type of case before them.
[69]
I find no reason to interfere with the Court of
Appeal’s assessment of seven months as a reasonable period for the case to be
prepared and tried.
(2)
Institutional Delay
[70]
This case proceeded through both provincial and
superior courts in Ontario. Under the Morin administrative guidelines,
the reasonable institutional delays for both levels of court total between 14
and 18 months. Mr. Williamson was not in custody during any of this period of
institutional delay and the trial judge did not consider the conditions of his
release to be onerous. I will therefore use the upper end of the range under
the guidelines for total institutional delay.
(3)
Conclusion on Reasonable Time for This Case
[71]
It follows that totalling the inherent time
requirements and reasonable institutional delay lead to the conclusion that a
reasonable period for the disposition of this type of case would be 25 months.
C.
How Much of the Delay That Actually Occurred
Counts Against the State?
[72]
The trial judge determined that the disposition
of Mr. Williamson’s case took 35.5 months. To determine the amount of time that
counts against the state we must subtract any of this period attributable to
the defence and any period of unusual or unforeseen delay not fairly counted
against the Crown.
(1)
Delay Attributable to the Defence
[73]
Both lower courts determined that there was no
issue as to waiver in this case, and the parties have not raised this issue on
appeal.
[74]
The Court of Appeal reclassified two months of
the delay as being attributable to the defence, given that the defence declined
two earlier dates for these hearings. I accept the Court of Appeal’s conclusion
that two months should be attributed to the defence. While the Court of Appeal
found that “the defence was diligent in attempting to move the matter along”,
this diligence was nonetheless marked by some delay attributable to the
defence: para. 67.
(2)
Exceptional or Unavoidable Delay
[75]
There is one matter to consider here. The judge
assigned to preside at the preliminary inquiry on November 23, 2009 had
expected to be unavailable because of a funeral: para. 18 of the trial judge’s
reasons. As a result, the witnesses were called off, but by mistake, the
defence was apparently not advised. In the result, the judge was in fact
available and was sitting; but because of other priority matters scheduled for
the same time, the Williamson matter could not be dealt with in any event and
was adjourned from November 23, 2009 until February 22, 2010: para. 19. While
the failure to advise the defence that the matter would not proceed was
improper and regrettable, this scheduling mishap, which it seems would have
occurred even if the witnesses had not been called off, is the sort of
exceptional delay that, in the particular and unusual circumstances disclosed
in the record, should not be weighed against the state.
[76]
This three-month period, in my view, should be
counted as exceptional delay that is not fairly counted against the state.
D.
Was the Delay That Counts Against the State
Unreasonable?
[77]
As previously stated, the reasonable time
requirements of the case were 25 months. The case in fact took 35.5 months.
Five of those months, however, should not be counted against the state: two
months were fairly attributed to the defence and three months resulted from a
scheduling issue at the preliminary inquiry stage. The difference between the
30.5 months which count against the state and the 25 months reasonably required
for a case of this nature certainly requires careful consideration: it exceeds
the reasonable time requirements of a case like this one by 5.5 months. While
this is not an insignificant period of time, it is not clearly unreasonable and
the final balancing of relevant factors is therefore critical.
[78]
For the trial judge, that balancing resulted in
a finding that the delay was not unreasonable. He found that the delay was not
“extreme”, that there was no actual prejudice, and that any “inferred”
prejudice was not significant: paras. 71-72. He also found that there is a
“very high societal interest in having Mr. Williamson tried on the merits for
these very serious charges”: para. 73. As the trial judge pointed out, Mr.
Williamson began his career as a teacher in 1980, a time within the period of
the charges. Those charges
involve[d] gross sexual
misconduct by an accused in his mid-twenties . . . in a position of authority,
against a grade school boy, aged 10-12 years. It is alleged that the accused
was in a “big brother” position with respect to the complainant. The abuse is
alleged to have occurred repeatedly over a significant period of time. The
abuse is alleged to include fellatio, anal penetration, simulated anal sex and
other sexual activity. [para. 66]
[79]
These are relevant considerations and I see no
error in the judge’s weighing of them. I also, with respect, see no basis for
the Court of Appeal taking a different view of the matter of prejudice than the
one adopted by the trial judge. The concept of “inferred prejudice”, on which
the Court of Appeal placed so much emphasis, is not a useful one and, in any
event, the trial judge’s analysis of this issue under the then-existing law
contained no error.
[80]
This is not to say that the societal interest in
resolution on the merits can ever justify what is otherwise a clearly
unreasonable delay. But in a case like this one, in which the delay is
excessive but not so long as to be clearly unreasonable, it is one of the
considerations that should be taken into account in the final balancing
process. The jettisoning of this consideration as irrelevant is, in my view,
one of the most unsatisfactory aspects of the majority’s new template for
assessing unreasonable delay in Jordan. The jurisprudence has been clear
that societal interests, both those mirroring and those adverse to the
interests of the accused, underlie the concept of reasonableness in assessing
whether the right to trial within a reasonable time has been violated. Far from
diminishing the right, this approach requires the sort of balancing that is the
essence of reasonableness.
[81]
Another relevant consideration, in my view, is
the temporary and exceptional pressure on the dockets of both the provincial
court and the superior court in Kingston at the relevant time. This was the
result of a “multiple murder victim and accused case that drew upon the
institutional resources”: trial judge’s reasons, at para. 47. The trial judge
accepted this impact. No issue as to the Crown’s failure to approach the
Regional Senior Justice to explore other possibilities was raised before the
trial judge or in the arguments advanced in the Court of Appeal. However, the
Court of Appeal was critical of the Crown for the absence of an explanation for
this failure.
[82]
While the precise impact of this temporary and
exceptional pressure on delay is not specified in the record, this sort of
pressure on judicial resources is a factor that should result in the Morin
administrative guidelines being applied flexibly. The Court of Appeal’s
comments about possible alternative arrangements were, in my view, both
procedurally unfair to the Crown and speculative given that the trial judge had
accepted the effect of the trial in question on the institutional resources in
Kingston and that there was no evidence that there were any alternatives or
that they could have been effective.
[83]
Taking all of these considerations into account,
I see no error in the trial judge’s ultimate conclusion that the delay here was
not unreasonable.
[84]
The Court of Appeal asked itself whether staying
these charges would be more “publicly disreputable for the administration of
justice” than “tolerating an inordinate trial delay”: para. 65. In my view, and
with respect to the Court of Appeal’s contrary conclusion, the answer to that
question in this case is yes.
[85]
In my respectful view, the Court of Appeal was
wrong to interfere with the trial judge’s conclusion that the delay in all of
the circumstances of this case was not unreasonable.
IV.
Disposition
[86]
I would allow the appeal and restore the
convictions entered at trial.
Appeal
dismissed, Cromwell, Wagner and Gascon JJ. dissenting.
Solicitor
for the appellant: Attorney General of Ontario, Toronto.
Solicitors
for the respondent: Hale Criminal Law Office, Ottawa.
Solicitor
for the intervener the Attorney General of Alberta: Attorney General of
Alberta, Calgary.
Solicitors
for the intervener the British Columbia Civil Liberties
Association: Farris, Vaughan, Wills & Murphy, Vancouver.
Solicitors for the
intervener the Criminal Lawyers’ Association (Ontario): Addario Law Group,
Toronto.
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