



WARNING

The President
    of the panel hearing this appeal directs that the following should be attached
    to the file:

An order
    restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4)
    or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4     (1)
Subject to subsection (2), the presiding judge or
    justice may make an order directing that any information that could identify
    the complainant or a witness shall not be published in any document or
    broadcast or transmitted in any way, in proceedings in respect of

(a)     any of
    the following offences;

(i)   an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011,
    279.02, 279.03, 280, 281, 346 or 347,

(ii) an
    offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent
    assault on female), 156 (indecent assault on male) or 245 (common assault) or
    subsection 246(1) (assault with intent) of the
Criminal Code
, chapter
    C-34 of the Revised Statutes of Canada, 1970, as it read immediately before
    January 4, 1983, or

(iii) an
    offence under subsection 146(1) (sexual intercourse with a female under 14) or
    (2) (sexual intercourse with a female between 14 and 16) or section 151
    (seduction of a female between 16 and 18), 153 (sexual intercourse with
    step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent
    or guardian procuring defilement) or 167 (householder permitting defilement) of
    the
Criminal Code
, chapter C-34 of the Revised Statutes of Canada,
    1970, as it read immediately before January 1, 1988; or

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

(2)
In
    proceedings in respect of the offences referred to in paragraph (1)(a) or (b),
    the presiding judge or justice shall

(a)  at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the complainant of the right to make an application for the order; and

(b)  on application
    made by the complainant, the prosecutor or any such witness, make the order.

(3)
In
    proceedings in respect of an offence under section 163.1, a judge or justice
    shall make an order directing that any information that could identify a
    witness who is under the age of eighteen years, or any person who is the
    subject of a representation, written material or a recording that constitutes
    child pornography within the meaning of that section, shall not be published in
    any document or broadcast or transmitted in any way.

(4)
An
    order made under this section does not apply in respect of the disclosure of
    information in the course of the administration of justice when it is not the
    purpose of the disclosure to make the information known in the community. 2005,
    c. 32, s. 15, c. 43, s. 8;2010, c. 3, s. 5;2012, c. 1, s. 29.

486.6     (1)
Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)
For
    greater certainty, an order referred to in subsection (1) applies to prohibit,
    in relation to proceedings taken against any person who fails to comply with
    the order, the publication in any document or the broadcasting or transmission
    in any way of information that could identify a victim, witness or justice
    system participant whose identity is protected by the order. 2005, c. 32, s.
    15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Williamson, 2014 ONCA 598

DATE: 20140819

DOCKET: C55167

Rosenberg, MacPherson and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kenneth Gavin Williamson

Appellant

John H. Hale, for the appellant

Jamie C. Klukach, for the respondent

Heard:  May 28, 2014

On appeal from the decision of Justice Gary W. Tranmer,
    released October 7, 2011, dismissing an application for a stay of the
    proceedings pursuant to ss. 11(b) and 24(1) of the
Canadian Charter of
    Rights and Freedoms
, with reasons reported at 2011 ONSC 5930, and from the
    judgment of Justice Tranmer, sitting with a jury, dated December 20, 2011.

Lauwers J.A.:

[1]

The appellant was found guilty after a trial with a jury of buggery,
    indecent assault and gross indecency under ss. 155, 156 and 157 of the
Criminal
Code
, R.S.C. 1970, Chap. C-34, for numerous sexual acts he committed on a
    boy over 30 years ago. He was sentenced to a total of four years imprisonment.

[2]

The appellant advanced two grounds of appeal in oral argument: first,
    that the trial judge erred in refusing to grant a stay of the proceedings based
    on unreasonable delay in the case coming to trial, under ss. 11(b) and 24(1) of
    the
Canadian Charter of Rights and Freedoms
; and second, that the
    trial judge erred in not excising segments of the video recorded interview the
    appellant had with the police, or, alternatively, by not providing a caution to
    the jury on the use to which they might put those segments.

[3]

The appellant did not pursue in oral argument two other grounds of
    appeal raised in his factum: that the appellants statement to police was not
    voluntary and should have been excluded; and that the Crown Attorneys manner
    of cross-examining the appellant was prejudicial to his fair trial interests.

A.

Background Facts

[4]

In 1979, when the complainant was 12 years old, he met the appellant,
    who was then 26 years old, through a juvenile diversion program. The appellant
    was in a one-year program at Queens University, studying to become a teacher, and
    was assigned to be the complainants mentor/advocate, in what was described as a
    big brother type of relationship. The appellant and complainant would meet
    often for various activities, and the complainant would often visit the
    appellant at his university dormitory. On one such visit, the complainant
    missed his bus home and stayed overnight in the appellants room.

[5]

The complainant testified that when he went to bed, the appellant joined
    him in the bed, and began to rub up against him and then engaged in anal
    intercourse with him. The complainant did not want this to occur.

[6]

The complainant testified that after this incident he continued to visit
    the appellant a few times per week, and the appellant continued to engage him
    in similar sexual activity, usually involving anal sex. Occasionally, the
    appellant forced the complainant to perform oral sex on him, and there were occasions
    of genital touching. The following summer, the complainant began to visit the appellant
    at his family home in Ottawa. The complainant testified that on each visit at
    the family home, the appellant would engage in anal intercourse with him.

[7]

The complainant confirmed that the appellant never threatened, hit or
    struck him in any way. The complainant testified that he did not disclose these
    incidents to anyone during the course of his contact with the appellant because
    he was embarrassed. The complainant first disclosed the abuse to his first wife
    years later, and later to his current wife, his therapist and his doctor. In
    2008, he told his probation officer about the abuse, and then reported it to police.

[8]

On January 6, 2009, Detective Cahill of the Kingston Police arrested the
    appellant at the school where he worked as a teacher. On arrest, he told the
    appellant that he was being arrested for historical sexual assault. He advised
    the appellant of his right to counsel. The appellant chose not to exercise this
    right.

[9]

After being taken to the police station, the appellant was interviewed by
    Detective Cahill, which was video recorded. The appellant initially stated that
    he had no idea why he was arrested. He then repeatedly denied any sexual
    contact with the complainant. Detective Cahill advised the appellant that his
    friends and family would have to be contacted. The appellant eventually
    admitted to Detective Cahill that sexual activity had occurred with the complainant.
    He described an account of sexual activity which he claimed was initiated by
    the complainant, but denied that anal intercourse had ever occurred, and denied
    that the complainant had ever performed oral sex on him. The appellants
    account differed markedly from the complainants.

[10]

The
    trial judge found the appellants statements in the video recorded interview to
    be voluntary. The video was admitted into evidence and played for the jury at
    the trial.

[11]

At
    trial, the appellant denied any sexual activity with the complainant. He
    testified that the complainant stayed overnight in his dormitory on one
    occasion, when they realized that the complainant had missed the bus. The
    complainant went to bed first. When the appellant returned to his room, he
    found that the complainant was in his bed rather than on the air mattress he
    had set up for him. The appellant therefore slept on the air mattress himself. According
    to the appellant, the complainant visited him in Ottawa three times. There was
    no sexual activity and the two did not share a room.

[12]

At
    trial, the appellant attempted to explain his statement to police. The
    appellant testified that he thought Detective Cahill had already made up his
    mind about the allegations, and sensed that he was in a lose-lose situation. He
    felt that he needed to satisfy Detective Cahill to avoid remaining in jail for
    violent sexual offences and, out of desperation, fabricated an account of
    sexual activity that would support lesser charges.

[13]

The
    jurys verdicts show they did not accept the appellants exculpatory evidence,
    it did not raise a reasonable doubt, and they were persuaded beyond a
    reasonable doubt that the sexual acts did occur. In his reasons for sentence,
    in accordance with the jurys verdicts, the trial judge found that from the
    fall of 1979 until August of 1980 the appellant committed in excess of 50
    incidents of anal intercourse with the complainant, nine or ten incidents in which
    he forced the complainant to perform oral sex on him, a couple of occasions
    when the appellant touched the complainants penis and several occasions when
    the complainant touched the appellants penis.

B.

IssueS

(1)

Did the trial judge err by refusing a stay of proceedings under ss. 11(b)
    and 24(1) of the
Charter
?

(a)

Procedural History

[14]

The
    appellant was arrested and interviewed on January 6, 2009. The Information,
    charging the appellant, was sworn the following day. He was held in custody
    until January 12, 2009, when he was released on bail.

[15]

The
    appellant elected to have a preliminary inquiry and to be tried by a judge and
    jury in the Superior Court of Justice (SCJ). The preliminary inquiry was
    adjourned twice in the Ontario Court of Justice (OCJ), before it commenced and
    the appellant was committed for trial the same day. The undisputed events surrounding
    those adjournments can be summarized as follows:

·

On April 28, 2009, in the OCJ, the date of November 23, 2009, was
    set for the preliminary inquiry. The Crown later learned that another matter
    was scheduled to continue on that date which would proceed first. On November
    20, 2009, the Crown learned that the assigned judge would be unavailable on
    November 23. As such, the Crown cancelled their witnesses. Defence counsel was
    not informed of this and attended in court on November 23 expecting to proceed
    with the preliminary inquiry. The assigned judge was, in fact, present, but the
    witnesses had already been cancelled.

·

The preliminary inquiry was rescheduled for the full day of
    February 22, 2010. The appellant and his counsel attended in court on that day and
    were informed that the assigned judge and investigating police officer were not
    available. The record indicates, however, that the assigned judge was present
    and available to conduct the inquiry.

·

The preliminary inquiry was rescheduled a second time for May 7,
    2010, and proceeded on that date. The complainant testified for most of the
    day.  Although the Defence and Crown had agreed the police officers would be
    available for cross-examination at the preliminary inquiry, the Defence agreed
    to proceed by way of discovery with regard to these officers on a later date. The
    appellant was committed to trial. Earlier dates were offered, but the pre-trial
    in the SCJ was scheduled for August 4, 2010, to accommodate discovery and a
    family matter the appellant needed to attend.

[16]

Although
    he ultimately refused to grant a stay, the trial judge was troubled by the fact
    that the first two preliminary inquiry dates were lost, and noted in his
    Decision on the s.11(b) Application, reported at 2011 ONSC 5930:

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 11(b)
    application.

[17]

On
    August 4, 2010, the judicial pre-trial conference in the SCJ was adjourned
    because the assigned Crown counsel was not present. Although earlier dates were
    available, there was no evidence about whether Crown counsel was available
    earlier than September 29, 2010, when Crown counsel attended and the pre-trial
    conference took place. The matter was then adjourned to the assignment court on
    October 22, 2010, when the pre-trial applications and jury trial were scheduled.

[18]

A
    number of pre-trial applications were brought by both the Crown and defence. The
    jury trial began on December 12, 2011 and ended on December 20, 2011.

[19]

Prior
    to the trial, on July 21, 2011, the appellant filed his Notice of Application
    for a stay under ss. 11(b) and 24(1) of the
Charter
. The application was
    heard on September 7 and 15, 2011, and dismissed on October 7, 2011.

[20]

The
    appellants primary complaints in his s. 11(b) application were that: (1) the
    preliminary hearing was rescheduled twice and took place almost five months
    after it was originally scheduled; and (2) the trial took place over a year
    after it was scheduled.

(b)

The Decision under Appeal

[21]

The
    trial judges decision correctly set out the analytical framework to be applied
    in an application under s. 11(b) of the
Charter
,
taken from
R. v. Morin
, [1992]
    1 S.C.R. 771,
R. v. Godin
, 2009 SCC 26, [2009] 2 S.C.R. 3, and a
    number of other decisions, including the decision of this court in
R. v.
    Tran
, 2012 ONCA 18, 288 C.C.C. (3d) 177, which approved the approach Code
    J. took in
R. v. Lahiry
, 2011 ONSC 6780, 109 O.R. (3d) 187.

[22]

The
    factors to be assessed are: (1) the overall length of delay from the laying of
    charges until the trial concludes; (2) the waiver of any individual time
    periods; (3) the reasons for the various periods of delay; and (4) the prejudice
    to the particular interests of the accused that are protected by s. 11(b). The
    court is then obliged to consider whether the delay is unreasonable, and in
    doing so, to balance the interests of the accused and the societal interest in
    a trial on the merits: see
Lahiry,
at para. 9;
Tran,
at para. 24;
Morin
, at pp. 786-803.

[23]

On
    the first factor, the length of delay, the trial judge found that the relevant
    time frame to be assessed was between January 7, 2009, when the Information was
    sworn, and December 23, 2011, when the trial was set to end. This was a period
    of 35 months and 16 days. He found that [s]uch a time frame warrants judicial
    scrutiny. I agree.

[24]

It
    is common ground that the second factor did not apply in this case, as the
    appellant did not waive any periods of delay. The two factors in serious
    dispute were the third and fourth factors, the reasons for delay and the
    prejudice to the accused.

[25]

The
    trial judges characterization of the various periods of delay can be
    summarized as follows:

1.

From
    January 7, 2009, when the information was sworn, to April 28, 2009, when the
    preliminary inquiry was set, was 3 months, 21 days. The trial judge
    characterized this period as inherent intake, except for 1 month, 4 days, which
    he attributed to the Crown for delay in providing disclosure.

2.

From
    April 28, 2009, when the preliminary inquiry was set, to November 23, 2009,
    when the first preliminary inquiry was scheduled, but did not proceed, was 6
    months, 26 days. In accordance with counsels agreement, the trial judge
    characterized this period as institutional delay.

3.

From
    November 23, 2009, when the first preliminary inquiry did not proceed, to
    February 22, 2010, when the second preliminary inquiry was scheduled, but also
    did not proceed, was 3 months. The trial judge characterized this delay as
    institutional.

4.

From
    February 22, 2010,  when the second preliminary inquiry did not proceed, to May
    7, 2010, when the third preliminary inquiry proceeded and the appellant was
    committed for trial, was 2 months, 15 days. The trial judge characterized this
    delay as institutional.

5.

From
    May 7, 2010 when the appellant was committed for trial, to August 4, 2010, the
    first appearance in SCJ, was 3 months. In accordance with counsels agreement,
    the trial judge characterized this delay as inherent intake in the SCJ,
    although he commented that two months of this delay could well have been
    attributed to the defence, because earlier dates in the SCJ were offered but
    declined.

6.

From
    August 4, 2010, the first appearance in the SCJ, to October 22, 2010, when the
    pre-trial motions and trial were set, was 2 months, 18 days. The trial judge
    characterized this delay as inherent and noted that the original judicial
    pre-trial conference was adjourned from August 4 to September 29 because the
    assigned Crown was not available.

7.

From
    October 22, 2010, when the pre-trial motions and jury trial were scheduled, to
    December 12, 2011, when the trial began, was 13 months, 20 days. The trial
    judge characterized this delay as institutional, noting that the applications
    were serious and substantive, and scheduling of the pre-trial applications in
    advance of a jury trial is good practice.

[26]

The
    trial judges total allocation can be summarized:




Category of Delay

Trial Judges Totals



Intake/Inherent

8 months

(2 months, 17 days in OCJ, and

5 months, 15 days in SCJ)



Defence Delay

None



Institutional

26 months

(12 months, 11 days in OCJ, and

13 months, 20 days in SCJ)



Crown Delay

1 month, 4 days



[27]

The
Morin
guidelines for the suggested
    periods of institutional delay are eight to ten months in the provincial
    courts, and six to eight months in the superior courts: see
Morin
, p. 799. The trial judge acknowledged that the
    institutional delay in this case was well beyond the guidelines.
However,
    he concluded that the appellant had not established the actual prejudice that he
    claimed to have suffered, and that although the court could infer prejudice,
    the inferred prejudice to the appellant was not significant. The trial judge
    also found a very high societal interest in trying the appellant on the merits,
    and dismissed the application.

(c)

Analysis

[28]

The
    appellant argues that the delay in this case beyond the
Morin
guidelines
    is excessive and that a stay was warranted under ss. 11(b) and 24(1) of the
Charter.
The Crown takes issue with certain aspects of the trial judges
    attribution of the delays in this case.


i.

Standard of Review

[29]

As
    this court noted in
R. v. Konstantakos
, 2014 ONCA 21, 298 C.R.R. (2d)
    310, at para. 5:

The characterization of periods of delay, and the ultimate
    decision concerning the reasonableness of a period of delay, is reviewable on a
    standard of correctness:
R. v. Tran
, 2012 ONCA 18, 288 C.C.C. (3d)
    177, at para. 19. The underlying findings of fact are reviewable on a standard
    of palpable and overriding error:
R. v. Schertzer
, 2009 ONCA 742, 248
    C.C.C. (3d) 270, at para. 71.


ii.

The Attribution of Delays

From committal to first appearance in the SCJ

[30]

The
    Crown urges this court to attribute two months of the delay between May 7,
    2010, the date of committal, and August 4, 2010, the date of the appellants
    first appearance in the SCJ, to the defence. The trial judge noted that the
    Crown and defence agreed that this timeframe was SCJ intake delay. However, because
    two earlier dates were available in the SCJ, but declined by the defence, the
    trial judge commented that: two months could well be attributed to the defence.
    As this court held in
Tran
, at para. 31: [T]he court is not bound by
    erroneous concessions by the Crown in allocating periods of delay [cit. omit.].
    In my view, the trial judges comment was correct and, despite counsels
    agreement in the application before the trial judge, I would attribute two
    months of this delay to the defence.

From the first appearance in the
    SCJ to setting dates for pre-trial applications and trial

[31]

On
    August 4, 2010, the first date set for pre-trial in the SCJ, the defence sought
    an adjournment of the pre-trial conference because Crown counsel assigned to
    the case was not available. The trial judge indicated:

I think the defences position of seeking the presence of
    assigned Crown was reasonable. In my view, to ensure a full and effective
    pre-trial hearing, it is necessary that counsel with carriage of the matter
    attend at pre-trial.

[32]

September
    29, 2010, was the second scheduled judicial pre-trial date and the assigned
    Crown appeared. The matter was then put over to assignment court on October 22,
    2010. The trial judge categorized this entire period of delay as inherent.

[33]

Before
    this court, the Crown argues that it is not the practice of the Kingston
    Crowns office to ensure that the assigned trial Crown is present at the pre-trial.
    Nevertheless, I agree with the trial judges concern about the importance and utility
    of judicial pre-trial conferences, and agree with him that in this case the
    delay in this timeframe is therefore inherent.

From setting dates to trial

[34]

At
    the assignment court on October 22, 2010, dates were set for pre-trial applications
    and the jury trial. December 12, 2011, was the first date scheduled for trial. The
    trial judge categorized this entire period as institutional delay.

[35]

The
    Crown argues that the trial judge made two errors in characterizing this entire
    period as institutional delay. First, the Crown submits that the significant pre-trial
    motions proposed by the defence required preparation time which should be
    classified as inherent delay, not institutional. The Crown proposed that three
    to five months be attributed to preparation.

[36]

The
    attribution of delay for preparation purposes was addressed by this court in
Tran
,
    at para. 32:

[P]arties should not be deemed automatically to be ready to
    conduct a hearing as of the date a hearing date is set. Counsel require time to
    clear their schedule so they can be available for the hearing as well as time
    to prepare for the hearing. These time frames are part of the inherent time
    requirements of the case. Institutional delay begins to run only when counsel
    are ready to proceed but the court is unable to accommodate them. [Internal
    citations omitted.]

[37]

Although
Tran
was released after the 11(b) decision in this case, in my view,
    given the scope of the motions, preparation time of one month would appear
    reasonable to be reclassified as inherent rather than institutional delay: see
R.
    v. Florence
2014 ONCA 443, at para. 63;
R. v. Ralph
2014 ONCA 3, 299
    C.R.R. (2d) 1, at para. 12.

[38]

Second,
    the Crown relies on the language in
Morin
, at pp. 799-800,
in which the Supreme Court indicated,
    with respect to the guidelines for institutional delay:

These suggested time periods are intended for the guidance of
    trial courts generally. These periods will no doubt require adjustment by trial
    courts in the various regions of the country to take into account local conditions
    and they will need to be adjusted from time to time to reflect changing
    circumstances. The court of appeal in each province will play a supervisory
    role in seeking to achieve uniformity subject to the necessity of taking into
    account the special conditions and problems of different regions in the
    province.

[39]

The
    Crown submits that this court ought to take into account the fact that the
    defence decided to elect trial by jury in Kingston, where there are only two
    courtrooms able to accommodate jury trials, one of which was already dedicated
    to a murder trial involving multiple murders and accused, which demanded
    significant institutional resources. The trial judge considered this issue at
    para. 47 of his reasons. However, the Crown did not have any explanation for
    why no one approached the Regional Senior Justice to see what other
    arrangements could be made to accommodate this trial under those circumstances,
    such as utilizing other venues in the Eastern Region of the Superior Court of
    Justice.

[40]

Further,
    the Crown argues that this court should account for the fact that the accused chose
    to bring complex
Charter
motions. I reject this argument. As Rosenberg
    J.A. noted in
Ralph,
at para. 14: [T]he appellant was not required to
    give up his
Charter
right to a jury trial to vindicate his
Charter
right to a trial within a reasonable time. Likewise, this appellant was not
    required to give up his pre-trial
Charter
applications, which the trial
    judge characterized as serious and substantive, to vindicate his
Charter
right to a trial within a reasonable time.

[41]

The
    appellant argues that the trial judge ought to have taken the Supreme Courts
    approach in
Godin.
There, the court restored the trial judges stay of
    charges for sexual assault, unlawful confinement and threatening death. As
    Cromwell J. noted, at para. 39:

This was not a complex case. A delay of 30 months in bringing
    it to trial is striking, given that the delay was virtually entirely
    attributable to the Crown or institutional delay and was largely unexplained.

[42]

The
    Crown submits that the Supreme Courts reasoning in
Godin
is not
    applicable. The Crown submits that in
Godin
the Crown failed to explain
    the multiple delays, but in this case the Crown has provided explanations. That,
    in my view, is an insufficient basis on which to distinguish
Godin
. It
    is the substance of the explanations that counts. In the present case, the trial
    Crown and the court were both well aware when the trial date was set that the
    defence intended to bring a stay application based on delay and that the trial
    of the case was in jeopardy. In these circumstances, I do not find the Crowns
    explanations to be sufficient. The Eastern Region of the Superior Court has
    plenty of locations and judges; the trial could have been accommodated earlier.

[43]

Lastly,
    the trial judge treated this entire period as institutional. This is arguably not
    consistent with this courts approach in
Tran,
at para. 32, to account
    for preparation time. As noted,
Tran
was released after the 11(b)
    decision in this case. The further difficulty in this case is that there is no
    evidence as to any earlier availability of defence counsel during that long
    delay. There was no fresh evidence tendered to this court on these issues. It
    is therefore difficult to establish the date on which counsel were ready to
    proceed, but the court was unable to accommodate them.

[44]

That
    said, in this relatively simple case in which counsel had prepared three times
    for the preliminary inquiry, I would attribute virtually no time to trial
    preparation. As the real driving force behind this period of delay was the
    other more complex murder trial the trial judge noted, which was limiting the institutional
    resources in the jurisdiction, I am not persuaded to attribute notional credit
    for preparation time to counsel. I would not reduce the trial judges attribution
    of the delay as institutional any further.

[45]

Based
    on the foregoing, I would adjust the trial judges allocation of delays to the
    following:




Category of Delay

Totals



Intake/Inherent

7 months

(2 months, 17 days in OCJ and

4 months, 15 days in SCJ)



Defence Delay

2 months



Institutional

25 months

(12 months, 11 days in OCJ and

12 months, 20 days in SCJ)



Crown Delay

1 month, 4 days



[46]

The
    institutional delays as I would attribute them in this case exceed the
Morin
guidelines by more than two months in the OCJ, and by more than four months in the
    SCJ. The added Crown delay, of one month and four days, results in an overall
    excess of about eight months. The total institutional and Crown delay is about
    26 months.

[47]

In
Ralph,
Rosenberg J.A. made the following comments, at para. 16:

On the trial judge's findings a substantial amount of that
    time, some 26 months, was either Crown or institutional delay. If that finding
    held and given the failure to give the case priority when it was adjourned in
    October, I might well have found a violation of s. 11(b) requiring a stay of
    proceedings.

[48]

In
Ralph
, the delay was ultimately found to be not 26 months of
    institutional and Crown delay, but 19 months. Rosenberg J.A. noted, at para 17:
    While this is still a significant delay, it is a delay that only slightly
    exceeds the upper range of the
Morin
guidelines, of 14 to 18 months of
    institutional delay. The excess delay in this case is considerably more, at
    more than eight months. As Sopinka J. stated in
Morin
, at p. 807,
    deviations of several months in either direction can be justified by the
    presence or absence of prejudice.


iii.

Prejudice

[49]

In
Godin
, Cromwell J. considered three forms of prejudice, at para. 30:

Prejudice in this context is concerned with the three interests
    of the accused that s. 11(b) protects: liberty, as regards to pre-trial custody
    or bail conditions; security of the person, in the sense of being free from the
    stress and cloud of suspicion that accompanies a criminal charge; and the right
    to make full answer and defence, insofar as delay can prejudice the ability of
    the defendant to lead evidence, cross-examine witnesses, or otherwise to raise
    a defence.

[50]

He
    went on to say that both actual prejudice and prejudice inferred from the length
    of the delay were relevant, noting, at para. 31:

As Sopinka J. wrote in
Morin
, at p. 801, even in the
    absence of specific evidence of prejudice, prejudice may be inferred from the length
    of the delay.  The longer the delay the more likely that such an inference will
    be drawn.  Here, the delay exceeded the ordinary guidelines by a year or more,
    even though the case was straightforward.  Furthermore, there was some evidence
    of actual prejudice and a reasonable inference of a risk of prejudice.

Actual Prejudice

[51]

The
    trial judge found, on the evidence, that the appellant had not established
    actual prejudice.  He based this conclusion on factual findings set out in his
    reasons. The terms of the appellants release were not onerous, and his concept
    of house arrest was self-imposed. His inability to associate with persons of
    a certain age could have been overcome on a motion. The appellants move from
    Kingston to Ottawa was not related to the charges, but was based on his desire
    to help his elderly parents. The media scrutiny that he experienced was the
    result of the fact that he was charged and did not flow from any delay. The
    same would be true of the professional scrutiny that he was under and the fact
    that he was unable to work as a teacher, although he continued to be paid.
    Further, the trial judge found that the appellants professional colleagues
    continued to support him. The appellant submitted no medical evidence of
    prejudice. There was no difficulty preserving evidence. None of these findings
    were challenged on appeal, let alone proven to suffer from any palpable and
    overriding error.

[52]

The
    Crown relied on the same points as mitigating any prejudice to the appellant.

[53]

Given
    these facts, I agree with the trial judge that the appellant did not make out
    actual prejudice on the evidence.

Inferred Prejudice

[54]

As
    the trial judge noted, [P]roof of actual prejudice is not invariably required
    to establish a s. 11(b) violation. He referred to
Godin,
and noted
    that a 35-month delay from the date of the charge to the commencement of the
    trial is a basis from which to infer prejudice. Ultimately, however, he
    found, that the inferred prejudice to the appellant was not significant.

[55]

The
    appellant argues that the trial judge gave insufficient weight to inferred
    prejudice. A similar issue arose in
Ralph,
where

Rosenberg J.A.
    made the following comments, at para. 16:

The appellant adduced no evidence of actual prejudice. The
    trial judge accepted that inferred prejudice had to be taken into account but
    he described the inferred prejudice as a "modest amount of inferred
    prejudice". When an accused has had to wait almost three years for trial,
    even a trial as relatively complex as the appellant's, it is proper to infer
    significant prejudice: see
Godin
, [cit.omit.].

[56]

In
R. v. Steele,
2012 ONCA 383, 288
    C.C.C. (3d) 255, this court substituted a stay of proceedings, largely because
    the trial judge failed to appropriately weigh the inferred prejudice that the
    accused suffered as a result of the 35 month delay in bringing him to trial. Of
    that delay, 26 months were attributable to institutional and Crown delay.
    Rosenberg J.A. held that, despite the seriousness of the offences and societys
    interest in a trial on the merits, the length of the delay and the
    unsatisfactory explanation for it were simply inexcusable. The delay in
Steele
was nearly identical to that in the present case.
    Also see:
R. v. H.(B.),
2009
    ONCA 731, 200 C.R.R. (2d) 262.

[57]

Based
    on such cases having very similar delays, in my view, it must be inferred that the
    appellant has experienced significant prejudice. The trial judge erred in
    deeming it to be not significant. As Cory J. observed in
R. v. Askov
[1990]
    2 S.C.R. 1199, at p. 1219, the time awaiting trial can be exquisite agony.
    The stigma of being under a public cloud should not be lightly dismissed.


iv.

Balancing the Interests

[58]

The
    next step in the analysis is to balance the interests of the appellant and the
    societal interest in a trial on the merits. The appellant argues that the
    balance in this case is in favour of granting a stay because the cumulative delay
    is just too long.

[59]

The
    trial judge held:

There is a very high societal interest in having Mr. Williamson
    tried on the merits for these very serious charges. Society's interest in
    protecting vulnerable children is very high.

He relied on the decision in
R. v. G.A.G.,
(2006)
    206 O.A.C. 131, in which this court, in an endorsement, upheld the trial judges
    decision to refuse a stay, and the accused was found guilty; and
R. v. S.H.,
[2008] O.J. No. 5736, at para. 74. In
S.H.,
Boswell J. refused a stay,
finding that
    there were several mitigating factors, similar to those in this case, that
    reduced the actual prejudice experienced by the accused.

[60]

The
    Crown argues that the trial judge did not err, citing
R. v. Seegmiller
,
    (2004) 191 C.C.C. (3d) 347 (Ont. C.A.), and
R. v. Hussey
, 2008 ONCA
    86, 168 C.R.R. (2d) 252, both involving sexual assaults.  In both cases, the trial
    judges decision to impose a stay was reversed by this court.

[61]

The
    role of the societal interest in the balancing effort was set out by Cronk J.A.
    in
Seegmiller
, at para. 25:

Where the nature of the allegation establishes a heightened
    societal interest in a trial on the merits, the absence of prejudice
    (particularly to the accused's fair trial interests) takes on added
    significance in the s. 11(b) calculus. The applications judge found that the
    suggested prejudice to Seegmiller was deserving of little weight, but failed to
    appreciate the significance of that assessment in a case like this one, where
    the societal interest in a trial on the merits is high. The applications judge
    also observed that the degree of prejudice to the accused is not such as to
    require that the period of acceptable delay be shortened. This observation
    correctly recognizes that real prejudice can shorten the period of acceptable
    delay in a proper case; however, it fails to also recognize that the absence of
    meaningful prejudice can lengthen the period of delay that is constitutionally
    tolerable.

[62]

On
    the other hand, society's interests should not permit the accused's constitutional
    rights to be eviscerated: see
S.H.
,
    at para. 74.

[63]

This
    point was discussed in
R. v. Harrison
, 2009 SCC 34, [2009] 2 S.C.R. 494,
    in a different context, where the Supreme Court was dealing with the possible exclusion
    of illegally obtained evidence, under section 24(2) of the
Charter
. At
    para. 40, the Court endorsed the reasoning of Cronk J. A., who was in dissent
    in this court:

As Cronk J.A. put it, allowing the seriousness of the offence
    and the reliability of the evidence to overwhelm the s. 24(2) analysis would
    deprive those charged with serious crimes of the protection of the individual
    freedoms afforded to all Canadians under the
Charter
and, in effect,
    declare that in the administration of the criminal law the ends justify the
    means (para. 150).
Charter
protections must be construed so as to
    apply to everyone, even those alleged to have committed the most serious
    criminal offences.

[64]

This
    is a very difficult case.

[65]

As the Supreme Court
    said in
Morin
and
Godin,
the approach to assessing the
    reasonableness of delay is not mathematical, but requires balancing of the
    appellants
Charter
protected
    interests with societys interest in prosecution of the offences on the merits.
The difficulty in appeals of cases where no stay was granted by the
    trial judge is that, while the motion is heard and determined before the trial,
    when the presumption of innocence applies, the appeal is heard and determined
    after a fair trial on the merits in which the appellant was found guilty, often
    by a jury of peers. Would the judicial imposition of a stay be more publicly
    disreputable for the administration of justice by letting a plainly guilty
    person like the appellant go free, than tolerating an inordinate trial delay?


[66]

The
    crimes committed by the appellant are serious; indeed, they are especially
    despicable.
Certain factors militate
    against the appropriateness of a stay.
There is no actual prejudice.
    There are mitigating factors. The appellant was out on bail and was not subject
    to particularly onerous restrictions. He was being paid his salary. The digital
    evidence was preserved and, given that the abuse took place over 30 years ago,
    an additional eight months did not materially impact the appellants ability to
    cross-examine the complainant.

[67]

Despite
    these factors, in my view, the trial judge erred in refusing a stay. While
    there is no actual prejudice, the inferred prejudice is significant.
There is no doubt that
26 months of
    institutional and Crown delay is significant and exceeds the
Morin
guidelines by eight months.
The excessive
    delay is explained but not justified. In anticipation of an application under
    s. 11(b) of the
Charter,
neither the Crown nor the Superior Court took
    seriously the obligation to bring this relatively straightforward case to trial
    in a reasonable time. By contrast, the defence was diligent in attempting to
    move the matter along, and attended prepared for preliminary hearing dates not
    once, but twice, only to be turned away because of scheduling errors, even
    though the Crown was apparently aware of these issues in advance and failed to
    inform defence counsel.

[68]

Applying
    the Supreme Courts words in
Harrison
, 
Charter
protections
    must be construed so as to apply to everyone, even those alleged to have
    committed the most serious criminal offences, I conclude, with great
    reluctance, that the balance weighs in favour of the appellants interests in a
    trial within a reasonable time, over the societal interest in a trial on the
    merits. A stay should have been ordered in this case.

(2)

Did the trial judge err by not excising segments of the appellants
    recorded police interview, or by not providing a caution to the jury on the use
    to which they might put those segments?

[69]

Although
    it is not necessary given my conclusion on the 11(b) issue, I address the
    second issue the appellant advanced in oral argument. The appellant makes three
    complaints about questions asked by the police in the video recorded interview
    with the appellant. First, he objects to questions the investigating officer asked,
    inquiring why the complainant would have fabricated his allegations. Second,
    the appellant challenges the propriety of questions by the investigating
    officer that refer to previous occasions the complainant had disclosed the
    abuse to other parties. Third, the appellant challenges the officers
    questioning referring to an incident when the complainant indicated that, while
    staying at the appellants family home, the appellants mother had noticed
    blood in the complainants underpants.

[70]

The
    appellant argues the trial judge erred in law by not excising these
    inadmissible portions of the appellants video recorded interview by the
    police, or in the alternative the trial judge erred by not providing a caution
    to the jury about those portions. In my view, for the following reasons, there
    is no merit to these arguments.

(a)

Questions about the complainants motive to fabricate

[71]

It
    is common ground that an accused has no burden to prove that the complainant
    had a motive to fabricate.  Consequently, at trial the Crown is not permitted
    to ask an accused person to give a reason why the complainant would fabricate
    allegations. The defence asserts, and I agree, that asking that form of
    question risks reversing the burden of proof, by suggesting that it is the accuseds
    responsibility to explain why the complainant would lie: see
R. v. R.
    (A.J.)
, (1995) 20 O.R. (3d) 405 (C.A.), at p. 414;
R. v. F.(A.)
, (1997)
    30 O.R. (3d) 470 (C.A.), at p. 471:

More importantly, these questions suggested that there was some
    onus on the appellant and his witness to provide a motive for the complainants
    testimony. This kind of examination undermines a fundamental principal of the
    presumption of innocence. This court has repeatedly held that this type of
    cross-examination is improper.

See also
R. v. W.J.M.
, (1995) 82 O.A.C. 130
    (C.A.), at para. 9.

[72]

The
    appellant argues that if the Crown cannot ask such questions in
    cross-examination, then it ought not to be permitted to adduce the same kind of
    questions and answers as evidence, by proxy, in a video statement in which the investigating
    officers questions take the same objectionable form. The appellant further asserts
    that it is no answer that, at trial, the Crown did not cross-examine the
    appellant on the complainants motive to fabricate the allegations. Alternatively,
    the appellant argues that if these questions and answers were left to be seen or
    read by the jury, then it was incumbent on the trial judge to provide a limiting
    instruction on the use to which they may be put.

[73]

The
    Crown argues that the appellant was represented by competent and experienced
    trial counsel who would have been alert to the principles involved. He did not
    object to the introduction of the entire video recorded statement, nor did he
    seek a limiting instruction around the questions and answers to which appeal counsel
    now objects. The issue is raised for the first time on appeal.

[74]

I
    note that, in his charge, the trial judge instructed the jury on the issue of
    the complainants possible motive to fabricate, stating:

There is no requirement for Mr. Williamson to prove that [the
    complainant] had a motive to fabricate evidence.  There is no requirement on
    Mr. Williamson to prove anything.  The presence or absence of a motive to
    fabricate is only one factor to be considered in assessing how much of or how
    little of a witnesss evidence that you find to have been proven.

[75]

And
    in any event, during his closing address to the jury, defence counsel focussed,
    albeit briefly, on the complainants motive to fabricate.

[76]

In
    my view, defence counsel at trial made a deliberate strategic choice not to
    pursue either an edit of the video statement or a limiting instruction to the
    jury. The defence strategy was plain in counsels cross-examination of the
    investigating officer and in his closing address to the jury. The defence
    theory was that the investigating officers interrogation forced a false admission
    out of the appellant. The defence wanted the jury to see the investigating
    officers minute-by-minute interrogation strategy, to demonstrate how he
    cornered the appellant into a false confession.

[77]

No
    limiting instruction was sought, in my view, largely because that would have
    defeated the defence strategy. Further, there was full cross-examination of the
    complainant, the appellant and the investigating officer. There were also a
    number of related instructions to the jury in the charge which served to ensure
    that it was fair.

(b)

Questions about disclosure of abuse to other people

[78]

The
    appellant complains about questions put to the appellant in the police interview
    about the complainant disclosing the abuse to other people, who did not testify.
    The appellant argues that this creates the risk of smuggling in hearsay evidence
    that would otherwise be inadmissible.

[79]

There
    is no merit to this argument. None of the facts put to the appellant in the interview
    about the complainants disclosures to others were ever disputed. Those facts
    were also elicited from the complainant in his testimony in the trial. There is
    no hearsay mischief associated with the jurys review of those facts in the
    statement.

[80]

In
    any event, the trial judge dealt with hearsay dangers in his instructions,  and
    specifically warned the jury not to treat the investigating officers questions
    or comments as evidence, but only the responses and the statements of the
    appellant:

In watching and listening to this tape, be careful to
    distinguish between what Mr. Williamson says and what Detective Cahill is
    saying.

What Detective Cahill says may help you figure out what Mr.
    Williamson says and what his words mean.  But Mr. Williamson can be held
    responsible only for what he actually says, not for what Detective Cahill says.

What Detective Cahill says may provide a context for
    understanding what Mr. Williamson says; but only Mr. Williamsons words,
    as understood in that context, are evidence of what Mr. Williamson has done,
    said or intended to do.

(c)

Questions about the appellants mother noticing blood

[81]

Finally,
    the appellant complains about the investigating officers suggestion, during the
    video recorded interview of the appellant that was left with the jury, that during
    one of the complainants visits to the appellants family home in Ottawa the
    appellants mother noticed blood on the complainants underpants.

[82]

In
    the trial, the complainant testified about a conversation with the appellants
    mother in which she said that she noticed blood on the complainants underwear.
    While the complainant testified about the conversation, he was unable to be
    specific. His testimony dispelled the risk that there would be hearsay misuse
    of the investigating officers assertion.

[83]

But
    for my conclusion on the first issue, I would dismiss the appeal on the second
    issue advanced in oral argument. In light of my conclusion on the first issue,
    it is not necessary for me to address the other issues raised in the
    appellants factum, but not pursued in oral argument.

C.

Disposition

[84]

Accordingly,
    I would allow the appeal, set aside the convictions, and enter a stay of the
    proceedings, pursuant to ss. 11(b) and 24(1) of the
Charter
.

Released: August 19, 2014 (PL)

P.
    Lauwers J.A.

I
    agree M. Rosenberg J.A.

I
    agree J.C. MacPherson J.A.


