Crown: N. Thompson, Office of the Crown Attorney, Kingston
Defence: Craig Penney, Toronto Child Pornography Lawyer, Kingston
¶ 1 THE COURT: We are here for the Mr. S. decision on the 11(b) Application. I am going to read my decision but I am not going to review the entire chronology. I essentially summarized the chronology, not including everything, but I summarized the chronology in the defendant's materials. I am also not going to read the citations for any cases that are referred to, in the interests of time.
¶ 2 Mr. S. has been charged with one count of possessing child pornography in the form of digital images. An additional charge of possessing a prohibited weapon was withdrawn by the Crown. His defence counsel alleges that his Section 11(b) right to have his trial heard within a reasonable time has been breached and applies for a stay of proceedings under Section 24(1) of the Charter.
¶ 3 This application was brought almost three months in advance of the trial date, scheduled to be heard August 20th to 27th, 2012. From the date of the charge to the commencement of the trial, 29 months and 12 days will have elapsed.
¶ 4 The defence has submitted that 8 months of this time can be attributable to inherent time requirements for the police to gather its evidence and is, therefore, to be treated as neutral time. This leaves 21 months and 12 days of institutional or Crown delay. For its part, the Crown suggests that the change in defence counsel at the one year mark contributed to 12 months of this delay. Further, the report from the forensic officer received on the eve of the first trial date consumed 20 months from the charge, and should be considered to be almost entirely inherent delay, not attributable to the Crown.
¶ 5 For the reasons that follow, I conclude that the Applicant has established an infringement of his rights under Section 11(b) and the application for a stay of proceedings will be granted.
The Relevant Chronology
¶ 6 Again, I am not going to review it all. It is five pages.
Framework for the Analysis
¶ 7 Section 11(b) of the Canadian Charter of Rights and Freedoms provides that "any person charged with an offence has the right to be tried within a reasonable time."
¶ 8 For a long period of time following the incorporation of the Charter into our law, the courts were divided on the proper approach to Section 11(b) challenges. This divergent thinking was settled to some extent by the Supreme Court of Canada in the R. v. Askov,  2 S.C.R. 1199, decision. The majority of the Court held that the primary purpose of Section 11(b) was to protect the individual interest of liberty and security of the person guaranteed by Section 7 of the Charter. Justice Cory however, went further in emphasizing the implicit community or societal interest in having a fair and balanced justice system that cannot be seen to countenance undue delays.
¶ 9 Following a period of strict adherence to a shortened time-frame, this approach was reconsidered by the Supreme Court in R. v. Morin,  1 S.C.R. 771. The Court affirmed the analysis in Askov. However, it emphasized the need for the Court to exercise its discretion, and to pay particular attention to any prejudice experienced by the accused. After this, there no longer existed a strict mathematical or administrative formula applicable in every case. Rather, there were suggested guidelines for the lower courts to apply.
¶ 10 The Courts considering such cases are expected to engage in a process in which the interests which the section was designed to protect are balanced against the factors leading to the delay. Those individual interests to be protected were seen to be the right to security of the person, the right to liberty, and the right to a fair trial. There is also a secondary societal interest in maintaining public confidence in the justice system by having charges tried on their merits.
¶ 11 According to Morin, the factors for the Court to consider are:
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 the delay;
4. Prejudice to the accused
Application to this Case:
1. Length of the delay
¶ 12 As stated, the length of the delay from the laying of the charge until the next set of trial dates is 29 months and 12 days. It is conceded that this justifies scrutiny by the Court.
2. Waiver of Time Periods
¶ 13 There was no assertion that the defence had either expressly or otherwise waived any of the time periods involved in setting down of this matter.
3. Reasons for the Delay: (a) Inherent time requirements of this case.
¶ 14 There was a disagreement between Crown and defence as to the inherent time required for preparation of this case. The defence concedes that the initial intake period, including the retention of counsel, the exchange of initial disclosure, and the time frames involved in the holding of counsel and judicial pretrials, should all be considered to be inherent time requirements. The period between March 12th to April 13th, and June 8th to 29th, 2010, in which the computer was analyzed by the forensic officer, together with the 3 days later on to retrieve the lost data, could also be properly considered to be inherent time required to prepare the case for trial. This amounts to approximately 5.5 months. In addition, the 13 days, together with appropriate breaks in between for the investigating officer to further analyze the material, could properly increase this period by a further 2.5 months, for a total of 8 months. The investigating officer's categorization report was completed February 2nd, 2011.
¶ 15 The Crown, on the other hand, has asserted that virtually all of the time until Detective Constable Farrugia's final forensic expert report was disclosed on November 8th, 2011, some 20 months after the charge, should be considered to be inherent time requirements of the case. She maintained that this time should not be counted against the Crown, because the parties were not ready to proceed until that point. Further, the defence was only just beginning to get into a position to proceed after the Applicant preliminarily retained his new counsel, in May 2011. Part of her argument was that, as a consequence of Mr. Penney not going on the record because he had not been fully retained until September 9th, 2011, the defence was not ready to proceed, at least until then.
¶ 16 With respect, I disagree with the Crown's perspective on this issue. The courts have repeatedly confirmed that the average intake period for most straightforward cases is approximately two months. This is to be considered to be neutral time. The neutral time must necessarily be expanded for more complex cases, especially those requiring post-charge investigation, such as this one. However, there has to be some limitation on this process, especially where the tasks for completion are clearly defined.
¶ 17 In the Applicant's case, data was still being collected and analyzed for some time after he was charged with the offence. According to the affidavit of Mandip Padda, law clerk to Mr. Penney, she and Mr. Penney had a telephone discussion with Detective Constable Farrugia, the forensic officer involved in this case. He advised that he had completed the initial C4P/C4M analysis of the Applicant's computer by June 29th, 2010. Although he appeared to be extracting the material fairly continuously in March and April, there is almost a two month gap until he picked it up again on June 8th was not made aware of why there was no work being done on the file during this period.
¶ 18 Detective Constable Farrugia also advised that some time during the month of June, 2010, the server for the police malfunctioned. The original material was not affected. However, he advised that, after this, he took no steps to recover data from any case, unless he had received a request for further examinations or reports, or unless he heard that a matter was proceeding to trial.
¶ 19 The local investigating officer, Detective Constable Morgan, confirmed that she received the forensic officer's preliminary report on the same day as it was completed by DC Farrugia. She said that she did not begin the process of categorizing the images until October 5th, 2010. Her testimony was that the delay between June 29th and October 5th was attributable to the fact that DC Farrugia's material was not on the server, so she was unable to access it. She finally began the process of analysis on the latter date, completing her report on February 2nd, 2011.
¶ 20 Given the troubling content of the material, she cannot be faulted for needing almost three months to complete this task, once it was begun. The officer said that she gave her completed report to their court office and assumed that it had been forwarded onto the Crown as was the usual practice.
¶ 21 There is some discrepancy between the evidence of DC Morgan and the reported information from DC Farrugia. DC Morgan said that she did not start her work on this material until October 5th, over 3 months after she received his preliminary report, because the server was down. At paragraph 10 of the Mandip Padda's affidavit, DC Farrugia reportedly said that, had he been asked to prepare a secondary or final report, which could have taken an additional 8 days after his June 29th report, he could have completed it "as early as July 2010". This would mean that the server was repaired a full two months earlier than DC Morgan recalled.
¶ 22 It would appear that the Applicant's counsel, Mr. Smith, did not receive DC Morgan's report until around March 15th, almost six weeks after it was prepared. By then, over a year had elapsed from the laying of the charge.
¶ 23 I do not accept the Crown's argument that the inherent time requirements should be extended to November 8th, 2011 when the final report was received by the defence. After he had completed his initial report on June 29th, 2010, DC Farrugia did no further work on the file until he was contacted by DC Gobeil of the Kingston Police on October 3rd, 2011. He was told for the first time, by DC Gobeil, that the case would be proceeding to trial on November 14th, 2011. He was also told for the first time that the defence counsel was requesting copies of images on the hard drives. Because of the server failure the year before, he had to take steps to recover the lost data, which he did immediately. At this point he decided, on his own, to produce a final forensic expert report, which was sent to the Crown and served on counsel by November 8th, report at the same time as he was extracting the data the first time around, it could have been ready in July 2010, around 15 months earlier.
¶ 24 Given these unexplained lapses in the preparation and delivery of the disclosure, I am prepared to accede to defence counsel's submission that 8 months is a more than reasonable period to assign to the inherent time requirements of the case.
(b) Actions of the accused
¶ 25 Turning now to the actions of the accused in contributing to the delay, the Crown has urged me to consider a number of different issues that should attract fault to the defence. The first related to the change in defence counsel and Mr. Penney's refusal to go on the record until his final retainer was crystallized.
¶ 26 Again, I disagree with this submission. From the material filed, including correspondence between the Crown and Mr. Penney, it would appear that the transition from Mr. Smith to Mr. Penney occurred relatively seamlessly. Unlike many cases with which this Court is faced, the new counsel did not seek any delays to familiarize himself with the file. Mr. Smith acted promptly in sharing his knowledge of the file and sending all available disclosure on to Mr. Penney. By the next court appearance following his being retained by the Applicant, Mr. Penney had conveyed his instructions to Mr. Smith to seek a trial date for "the first five consecutive days of trial". Within two days he had arranged a counsel pretrial with Mr. Drummond. Within 10 days of being retained the trial dates were set.
¶ 27 The issue of Mr. Penney's not going on the record until fully retained is, in my view, a red herring. All along Mr. Penney had made it clear to the three Crown counsel with whom he had dealt, that he had reserved the trial dates in his calendar, and that his client was fully intending to pay him. In his affidavit, the Applicant indicated that he had, in fact, paid his lawyer for all the preparatory work and had entered into an agreement that he was going to pay the balance prior to trial. Mr. Penney understood that the final disclosure of the images could not be done unless and until he went on the record. These facts were confirmed in writing with the Crown's office a month prior to the trial.
¶ 28 I would emphasize here that the Applicant's Section 11(b) rights necessarily exist quite apart from whether he had counsel willing to represent him at the trial.
¶ 29 Another criticism of the defence raised by the Crown relates to Mr. Penney's request for an adjournment of the first trial because he had received late disclosure of the final forensic expert report. The motion for an adjournment came before this Court a few days before trial. In his submissions Mr. Penney made it clear that he was prepared to proceed with the trial if the Crown would agree not to call DC Farrugia or attempt to rely on his final report. The Crown insisted that this evidence was essential to their case. She freely acknowledged on the record that the Crown was guilty of late disclosure of this report. Mr. Penney insisted that he did not want to risk beginning the trial, without the benefit of his own and his expert's thorough understanding of this new piece of disclosure. I did not agree with the Crown's submission that Mr. Penney should have anticipated receiving this report. It was not altogether clear to me whether even she expected it to form part of the Crown's case.
¶ 30 Another issue had arisen, at that time, as well. That was the availability of DC Farrugia to attend court as a witness, because his wife was having a baby. He had advised the Crown that he would not be available because of this. After submissions, at the adjournment application, I strongly encouraged counsel to at least start the trial. We agreed to hold the matter down while counsel attempted to obtain further information about the detective's availability. Following a recess, counsel advised that they were now consenting to the adjournment because of the issues of disclosure and unavailability of this witness.
¶ 31 Information contained in the affidavit of Mandip Padda, confirmed that while DC Farrugia may not have been available on the first day of trial, he was available to attend by the 3rd, 4th or 5th day. This information, of course, was gleaned in retrospect. I do not agree that it can now be used to assign responsibility for the adjournment to Crown counsel, who relied upon the earlier information of the officer.
¶ 32 In my view, given the stated preference of this Court at the adjournment motion to start the trial, notwithstanding the absence of DC Farrugia, and the subsequent consent of counsel not to begin it, the Crown cannot now ask the Court to attribute blame to the defence for joining her consent.
¶ 33 The Crown suggests that some of the delay was attributable to the fact that the defence was inactive in pursuing disclosure. To his credit, almost immediately upon being retained, Mr. Smith took active steps to obtain the unsealing of the search warrant to obtain the information supporting its issuance. On virtually every one of 15 court appearances prior to the set date, defence counsel made mention of the absent disclosure as the reason for the adjournment. The Crown reiterated on each occasion that it was making efforts to obtain this disclosure. Once retained, Mr. Penney took up the clarion call both verbally and in writing.
¶ 34 The fact, as the Crown contends, that he requested "any" reports, instead of "the" report makes no difference whatsoever.
¶ 35 Mr. Penney had informed the Court that, uncharacteristically, his client signed a written retainer containing the clause, "the goal is to schedule a week long trial for the first available five consecutive days". It would seem he did everything within reason to carry out that instruction. He confirmed it in writing to Mr. Smith, whom he had asked to set the trial date. While he only gave dates commencing in September 2011, he did so at the suggestion of the Crown, given the backlog then being experienced by the Court. As it happened, the first dates upon which the police officers were available was the week of November 14th. When the trial had to be rescheduled, both parties accepted the earliest trial dates offered. The next day Mr. Penney followed up by email with the trial coordinator concerning the possibility of even earlier trial dates. From this evidence, I have concluded that, once Mr. Penney was retained, he energetically worked towards a conclusion of this matter.
¶ 36 Interestingly, the Crown does not contend that defence counsel should have insisted earlier upon setting a trial date, before all of the disclosure was obtained, even though an entire year had elapsed. I would have thought that she would have relied upon the dictum in the Ontario Court of appeal case R. v. Kovacs-Tatar,  O.J. No. 4756, or that Court's finding in R. v. N.N.M.,  O.J. No. 1802, for the proposition that at some point, defence counsel has to set the trial date, notwithstanding the absence of an expert report. Perhaps this concession is due to the Crown understanding that they may have lulled defence into inaction by continually promising to produce this disclosure.
¶ 37 I would note here, as an aside, that this is a case which would have benefited from some vigorous case management. This is something that we can now expect to benefit from under the new Criminal Court Rules coming into effect on July 1st, 2012.
¶ 38 I freely acknowledge that we have all become somewhat complacent about the delays in child pornography cases attributable, we are told, to the lack of forensic resources and the understandably high turnover of personnel in these units. Nevertheless, in my view, there was some lack of due diligence on the part of the defence in not bringing a motion for disclosure or, at the very least, seeking some sort of judicial intervention at some point during this long year of seeming laxity on the part of the Crown. In the M.(R.) case, the Ontario Court of Appeal upheld a Section 11(b) stay of sexual assault charges given a lengthy delay between arrest and trial. Justice MacPherson held that, as the pages of the calendar turned from months to years, there was a duty on all participants in the case, Crown, defence and the trial judge, to formally recognize that the case was in jeopardy of a stay and to discuss, on the record, how best to deal with it.
¶ 39 My view is that in this case, defence counsel could and should have been more pro active in securing this disclosure, which evidently was at least partially available much earlier. For this reason, I find that 4 months of the delay in the period preceding the setting of the first trial to be attributable to the defence.
(c) Actions of the Crown
¶ 40 There was no evidence before the Court as to the actual steps that the Crown took to remedy the disclosure situation. I was not advised of any efforts to contact and/or discuss the absence of the categorization of the material with anyone from the Kingston or Durham police departments. It was not clear who was in charge of what action on the file. For example, DC Morgan testified that she was not sure whose responsibility it was to notify the forensic officer of the impending trial dates, although she did understand that a forensic officer would have to be called to give evidence. She had not been made aware of this Section 11(b) motion until advised by defence counsel. The forensic officer, DC Farrugia, was apparently awaiting notification from the local police or the Crown as to what further material he had to produce, and whether or not the matter was proceeding to trial. He received notice of the first trial dates just over a month before the trial, and had to take immediate steps to restore his file and prepare his report. One can only conclude that, had he received earlier notice from the Crown or local police, he could easily have prepared his final report in a more timely manner, and the adjournment of the trial would have been averted.
¶ 41 From the evidence, it would seem that there was a breakdown in the lines of authority and communication as between the Crown's office, the Kingston police and the Durham police force. This impacted upon the disclosure of important information, crucial to the Applicant's defence of his case. A five day case had to be adjourned. As noted, this ultimately became a six day case because of the additional report. I would assign the 6 weeks that it took DC Morgan's report to reach defence counsel entirely to the Crown.
(d) Limits on Institutional Resources
¶ 42 Virtually all court locations in Ontario would find it difficult to accommodate six consecutive days of trial in a timely way. As the former Regional Senior Justice, I am aware of the fact that the Kingston Court experienced the sudden retirement due to medical reasons of one of its two sitting judges in February of 2011. In spite of everyone's best efforts, this event, together with an unprecedented shortage of per diem judges, left this Court without adequate judicial resources to meet the demands of the public. In this case, the second set of trial dates were scheduled 9 months and 1 week past the first trial dates. That is barely within the acceptable range for a first trial date.
¶ 43 The parties have conceded that they were ready to set the first trial dates following the counsel and judicial pretrials on the 21st of April, 2011. At the time, the Court was reasonably responsive in finding trial dates a mere 6 months and 3 weeks from the set date. I am assigning the time from when the parties were in a position to set the first trial date, April 21st, 2011, until the trial scheduled for November 14th, to systemic or institutional delay.
¶ 44 For the reasons outlined, I will assign the entire time from the first trial dates until the second trial to a combination of Crown and/or institutional delay.
(e) Other Reasons for the Delay
¶ 45 There were no other reasons suggested for the delay in this proceeding.
¶ 46 Therefore to summarize, the 29 months and 12 days from charge to the upcoming trial dates will be attributed as follows:
March 9th, 2010 to April 21st, 2010 - 8 months neutral time, 6 weeks to the Crown and 4 months to the defence;
April 21st, 2011 to November 14th, 2011 - 6 months and 3 weeks to institutional delay and,
November 14th to August 20th, 2012 - 9 months and 1 week to Crown and/or institutional delay Prejudice.
¶ 47 The Applicant asserts that he has suffered prejudice as a consequence of this delay. In discharging his onus, he filed an affidavit upon which he was cross examined. Appended to the affidavit is a report of Mr. T.K. Quek, who is a psychotherapist and counselor with whom he consulted. Also attached were a number of pieces of correspondence from friends and family addressing the issue of the Applicant's state of mind since he was charged.
¶ 48 In his affidavit the Applicant, a divorced father of three children, described the "devastating and earth-shattering impact" that the charge has had on his personal and professional life. He suffered pain and humiliation as did his family and friends. His girlfriend left him around this time. He had to turn over his passport. Almost overnight, his business as a home builder collapsed.
¶ 49 Mr. Quek prepared a report which outlined the Applicant's general functioning during three periods: before he was charged, after he was charged to the end of the first year, and after the first year for the 6 to 8 months preceding their consultation. In addition to his interviews with the Applicant, he spoke with or read statements from several of Mr. S.'s family and friends. Quoting from page 3 of Mr. Quek's report, he described the immediate fallout from the charge:Mr. S.'s arrest was a matter of public notice. It was carried on network television, published in local newspapers and found itself on the internet and social media. Mr. S. reported that his business was immediately without a client base, and he was avoided by most of the trades and builders in his field. Signboards bearing his company's name were promptly removed; advertisers eschewed any contact with him; people in circles of influence whom Mr. S. had counted as friends avoided him. Further, existing homeowner customers would not speak with him or allow him to attend their residence for service related work, thus creating costly issues with Tarion, the Ontario New Home Warranty Program.
¶ 50 Mr. Quek found that, notwithstanding these challenges, the Applicant was generally able to function. However, as the case dragged along, the constant delays began to have an impact on him. Further down on the same page, Mr. Quek states:Mr. S. indicated that his family physician had prescribed him with the antidepressant Welbutrin, but he had considered it only a precaution and was not consistent in taking it. Further, when the disclosure was not forthcoming with every court appearance, Mr. S. described himself as losing hope.
¶ 51 Mr. Quek described two subsequent turning points in the Applicant's life. Having maintained his innocence all along, he was completely devastated by the contents of the disclosure that arrived at the end of the first year. This prompted a change in legal counsel resulting in a significant escalation in his legal bills. However, his hopes were again raised with this change in counsel.
¶ 52 The second definitive turning point in his emotional health came with the news that the November 2011 trial date had to be adjourned to August 2012. According to the doctor's sources, in addition to his growing self-neglect:He began selling off most of his properties, escaping to prolonged sleep, running away out east in an old styled van and talking about ending his life. He ceased communication with those who meant a great deal to him, and has generally become reclusive to the world.
¶ 53 In Mr. Quek's opinion, the deterioration of Mr. S.'s emotional health was the direct result of the delay he suffered in the hearing of this case.
¶ 54 The Applicant testified that he is now in counseling with Dr. Gojer, who has prescribed a different anti depressant. He is having difficulty adjusting to it because of the unpleasant side effects.
¶ 55 There is evidence that, with the passage of time and the need for a change of counsel, Mr. S.'s legal fees have grown exponentially, at a time when his business is in a state of collapse.
¶ 56 The primary purpose of Section 11(b) is to protect the right of the accused to fair trial, liberty and security of his person. In determining whether or not an accused has been prejudiced by a delay in having his case tried on its merits, the court should direct its mind to these protected rights.
¶ 57 In many cases an accused person's fair trial rights are adversely affected by the passage of time because witnesses' memories become poorer as time elapses. In this case, the bulk of the evidence will be in the form of data extracted from the Internet and analyzed by the police. This evidence is unlikely to be negatively affected by the passage of time. Thus I find that the Applicant's right to a fair trial has not been seriously impacted.
¶ 58 Prejudice can also be inferred from pre trial detention or from very strict bail conditions which restrict an accused person's liberty. In this case, the Applicant was released on bail after one night in custody. While initially his release conditions were relatively strict, these were relaxed considerably as time went by. He has been unable to travel outside the country without his passport. While living for a prolonged period with any restriction upon one's movements or associations does have an impact upon one's absolute freedom, in this case the conditions were not so onerous, on their own, to justify a finding of prejudice.
¶ 59 Lastly, the Court must consider whether this delay deprived the Applicant of his security of person. In assessing this factor, the Court is mindful of the need to distinguish between the impact of the laying of the charge on the Applicant, and that of the delay in reaching its conclusion.
¶ 60 I have had the benefit of Mr. Quek's report, which went unchallenged by the Crown. The prosecution opted not to cross-examine him on his report. I found it to be well written and thorough, displaying a reasonable grasp of the challenges encountered by the Applicant over this time frame. I also found the Applicant's testimony to be credible. He demonstrated a heart felt desire to get the matter over with. I had no sense that he or his counsel engaged in any conduct that was inconsistent with bringing this matter to a close. There is no doubt that Mr. S. has a long journey ahead in reconstructing his life, business and reputation in the community, after over two years of living in limbo.
¶ 61 Based on this evidence, I am satisfied that the constant delays seriously undermined the Applicant's sense of security of person, resulting in a state of prejudice to him.
¶ 62 The Morin case provides a framework for balancing rights bestowed on an individual accused against the factors leading to the delay. There is no doubt that the remedy of judicial stay that flows from Section 11(b) is the ultimate extraordinary remedy. It is to be reserved only for the most deserving cases. As the Supreme Court of Canada noted in R. v. Sharpe,  1 S.C.R. 45, any charge related to child pornography is a crime of enormous gravity, affecting both the victims and society, as a whole. The community has a clear interest in having such a case tried on its merits. At the same time however, the public's confidence cannot be allowed to be undermined by a justice system that permits its citizens, deemed innocent until proven guilty, to languish on an indefinite basis untried. I find that the 16 months attributable to the Crown and to the lack of institutional resources clearly falls outside of the 8 to 10 month guidelines established by the Supreme Court of Canada in Morin. Coupled with that is the significant prejudice suffered by the Applicant in awaiting his trial.
¶ 63 For these reasons I find that a violation of his Section 11(b) rights has been established to the Court's satisfaction. A stay of the charge is hereby granted under Section 24(1) of the Charter.