



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Stilwell, 2014 ONCA 563

DATE: 20140724

DOCKET: C57562

Cronk, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent (Appellant)

and

Christopher Stilwell

Applicant (Respondent)

Karen Papadopoulos, for the appellant

Uma Kancharla, for the respondent

Heard: March 31, 2014

On appeal from the stay of proceedings ordered by Justice
    Judith C. Beaman of the Ontario Court of Justice, dated July 31, 2013.

Pepall J.A.:

Introduction

[1]

The respondent, Christopher Stilwell, was charged with one count each of
    distributing, possessing and accessing child pornography.  Just over twenty-six
    months elapsed between the date the charges were laid on March 31, 2011, and June
    7, 2013, the anticipated conclusion of the respondents trial.

[2]

The respondent applied for a stay of proceedings, arguing that his right
    to a trial within a reasonable time under s. 11(b) of the
Canadian Charter
    of Rights and Freedoms
had been infringed. The trial judge determined that
    12.5 months of the delay was attributable to the Crown and held that this delay
    considerably exceeded the guideline of eight to ten months set out in
R. v.
    Morin
, [1992] 1 S.C.R. 771. Finding that the delay resulted in actual
    prejudice to the respondent, the trial judge stayed the charges.

[3]

The Crown appeals from this order.  It claims that the delay was reasonable
    having regard to the volume of files on the respondents computer that the investigating
    officers needed to review and categorize.  The Crown also argues that the trial
    judge erred in her assessment of the prejudice the respondent experienced as a
    result of the delay, and in her balancing of the interests s. 11(b) is designed
    to protect in deciding whether a stay was warranted.

[4]

For the reasons that follow, I accept the Crowns second submission and I
    would allow the appeal.

The Trial judges Decision

[5]

Before the trial judge, the Crown conceded that the delay merited
    scrutiny under s. 11(b) of the
Charter.
The trial judge held that the
    accused did not expressly or impliedly waive any time periods, leaving the
    entire 26 month period to be assessed.

[6]

The trial judge considered the reasons for the delay as identified in
Morin
to determine whether the delay was unreasonable: inherent time
    requirements of the case; actions of the accused; actions of the Crown; limits
    on institutional resources; and other reasons for delay.

(a)

Neutral Intake Time: Nine Months

[7]

The trial judge addressed the inherent time requirements of the case.  This
    time is neutral and is not assigned to either party.  She observed that in
Morin
,
    Sopinka J. held that the complexity of the case was an important factor in
    determining the inherent time requirements, and that complexity was affected by,
    among other things, the nature and duration of the offences, the size and
    complexity of the investigation, the work involved in preparing and delivering
    disclosure, and the need for judicial pretrial conferences and pretrial motions. 
    She noted Sopinka J.s observation that certain activities common to all
    criminal matters such as retention of counsel, bail hearings, police and
    administrative paperwork and disclosure must be considered.  This intake time
    is also treated as neutral.

[8]

The Crown contended that the investigating officers had to analyze over
    244,000 image and video files, of which in excess of 9,000 were ultimately
    considered to constitute child pornography.  In addition, the Crown noted that D.C.
    Morgan, the sole officer in charge of the Child Pornography and Exploitation
    Unit of the Kingston Police Force, took an unanticipated, extended period of
    leave shortly after the respondent was charged.  Her replacement officer, D.C.
    Gobeil, continued to be responsible for his normal duties in addition to those he
    took over on her behalf.  The Crown argued that the associated delays should be
    considered in that context.

[9]

The trial judge acknowledged that by its nature, the task of viewing and
    classifying child pornography takes a huge toll on officers and necessitates
    frequent breaks.  Further, she recognized that unlike most criminal offences,
    the bulk of the investigation in child pornography cases occurs after the
    charges have been laid, which in turn delays disclosure. She referred to
R.
    v. Burnes
(24 April, 2013) Kingston (Ont.
    S.C.), a decision by Tausendfreund J.,
and
R. v. Stelpstra
(4 June, 2012) (Ont. C.J.), her own decision. Both were child pornography cases
    in which the court held that nine and eight months, respectively, were suitable
    intake periods.

[10]

The
    trial judge noted that three different lots of disclosure were released to
    defence counsel within six weeks of the laying of charges but a further package
    did not arrive until some 14 months later.  The final report was available in
    June 2012.

[11]

The
    trial judge considered the vast quantity of images, the unanticipated leave of
    the investigating officer and the inaction of defence counsel in pursuing
    disclosure.  She assigned nine of the 26 months to the intake period, thereby
    treating that time as neutral.

(b)

Delay Attributable to the Defence: Five and a Half Months

[12]

The
    trial judge proceeded to attribute to the defence one-half of the
    responsibility for the 11 months of delay between the end of the intake period,
    January 1, 2012, and the date the parties set the matter down for trial, November
    20, 2012.  In her view, the defence could have been more assertive in obtaining
    disclosure and it was unnecessary for defence counsel to await the final report
    before setting a date for trial.

[13]

The
    trial judge noted that while the final report was available as of June 20,
    2012, defence counsel did not pick it up until sometime in August and did not
    set a trial date until November.

(c)

Delay Attributable to the Crown: Five and a Half Months

[14]

The
    trial judge attributed the remaining one-half, or five and a half months of the
    11 months of delay, to the Crown.  As such, the trial judge apportioned an
    equal amount of unreasonable delay to the Crown as to the defence.  She stated,
    at p. 21:

While I am sympathetic to the police and the difficult task
    they have to perform, it is clear that the resources assigned to the completion
    of this analysis were woefully inadequate, particularly when the main
    investigator became unavailable.  It is well settled that decisions on the part
    of the state concerning the allocation of its resources cannot be used to
    justify the abrogation of the rights of an accused person.

(d)

Institutional Delay: Seven Months

[15]

The
    trial judge then considered institutional delay, that is, the period of time
    after the parties are ready for trial but during which the system cannot
    accommodate them. She calculated the institutional delay in this case as being seven
    months.  It represented the time between the date both parties were in a
    position to set the matter down for trial, November 7, 2012, and the date of
    the hearing of the application, June 7, 2013.
[1]
She considered that the seven months of institutional delay was well within
    the period deemed acceptable for our court by the Supreme Court.
[2]


[16]

The
    total time attributed to the Crown was thus 12.5 months: seven months systemic
    delay plus the aforementioned five and a half months of unreasonably

delayed disclosure.
[3]

(e)

Prejudice

[17]

The
    trial judge reviewed the contents of the affidavit filed by the respondent and
    on which he was not cross-examined.  In this affidavit, the respondent asserted
    that his life had been on hold for over two years since his arrest and that
    he lived in a state of indescribable turmoil.  He said he suffered depression
    and anxiety attacks that required medication, which in turn affected his
    ability to work.  His thoughts had turned to suicide and he experienced
    sleeplessness and nightmares in which he relived the circumstances of his arrest.
    He had gained a considerable amount of weight and developed hypertension.  He
    attended counselling, which was expensive. He was forced to quit his job at
    Loblaws and move in with his parents, although he did find new employment.  He
    believed that the uncertainty of the court process kept him from seeking better
    employment.  He felt as if he could go nowhere without his mother for fear he
    might be accused of breaching his bail conditions.  His parents had to drive
    him everywhere and he had been unable to take driving lessons because his court
    dates were every two months and he was told that he would lose any money paid
    if he missed one lesson.

[18]

The
    respondent stated that the delay affected his ability to make friends and
    socialize with his co-workers.  He asserted that he was paranoid and jumpy and
    the delay had put a strain on his relationship with his parents, his brother
    and his brothers family, and had interfered with his and his parents ability
    to interact with his elderly, ill grandparents. His brother has a young child
    with whom he was not allowed to associate because his bail conditions prevented
    him from being near children.  The respondent also said that the delay and
    court appearances had resulted in significant legal fees.

[19]

The
    trial judge noted that the Crown contended that the court ought not to place
    much weight on these assertions. The Crown argued that the respondent had never
    applied to amend any of his more restrictive bail conditions, even though the
    Crown was open to such an application.  He obtained a new full-time job near
    his parents home within two weeks of leaving his job at Loblaws and, as he
    made no mention of his current salary, the court could assume that he was
    earning at least what he was making before.

[20]

The
    Crown also argued that the hardship the respondent identified reflected the
    charges and the bail conditions, not the delay in bringing the case to trial.  For
    example, the respondents weight problem pre-dated his arrest, he made suicidal
    remarks immediately after being charged and his sleep problems stemmed from reliving
    the circumstances of his arrest, when he was awoken by police storming into his
    apartment. The Crown also observed that the respondent acknowledged that his
    mental health problems had improved through counselling. The Crown submitted
    that the respondents decision to withdraw from social settings was a result of
    the nature of the charges and the potential for social stigma associated with
    child pornography charges, not from delay.

[21]

The
    trial judge held, at p. 30: I agree that the points raised by the Crown have
    validity, and serve to undermine the Applicants argument that the delay itself
    has been the primary cause of his personal difficulties. She went on to add
    her own comments about the degree of prejudice arising from the delay, noting:

·

The respondents complaints that the delay prevented him from
    doing certain things (
e.g.
getting a drivers licence) because he had
    to attend court every two months were undercut by the fact that his lawyer
    filed a designation of counsel on her first appearance. This relieved the
    respondent of having to attend court until the actual hearing date.

·

There was no actual social stigma attached to the charges or to
    the delay because no one but his family knew about them.

·

The respondent attended counselling to seek guidance on an addictive
    personality. Any financial cost associated with this therapy did not relate to
    the fallout from the charges.

·

While the respondent might have chosen to be accompanied by his
    mother at all times, he was not required to do so.  He was simply required to reside
    with his parents, abstain from the use of electronic devices that connect to
    the internet, avoid places where young children attend and not possess
    weapons.  These conditions were not overly onerous and, in any event, the Crown
    was open to amendment of the terms.

[22]

The
    trial judge wrote, at p. 32: I find that many of the elements allegedly
    constituting prejudice stemming from the delay, arose simply by virtue of the
    fact of the charges themselves. They are not, as a consequence, relevant to the
    section 11(b) analysis.

[23]

Despite
    this, the trial judge went on to state, at pp. 32-33:

That said, I am satisfied that the Applicant has suffered some
    prejudice as a consequence of the delay in bringing his matter before the
    court. He has lived in a state of limbo for over two years, the stress of which
    has clearly created a kind of paralysis in his life. This has left him in a
    state of constant dread, making it impossible for him to move forward with his
    life in any meaningful way.

For over two years, he has eschewed intimate relationships and
    missed out on normal social activities for fear that young children might be
    included. This has interfered with his ability to bond with his co-workers and
    friends. In particular, he has been denied the opportunity to spend important
    family time with his little niece. With each passing day, it has been harder
    and harder for him to engage with the world. He has had to take medication to
    cope. I accept that this has caused him psychological harm.

Finally, the cost of having to retain a lawyer for over two
    years, for multiple court appearances and meetings, is significant and
    constitutes serious, additional financial prejudice to him.

Taken together, I am satisfied that the lengthy delay in
    bringing this matter before the court for determination has had the effect of undermining
    the Applicants security of the person, resulting in a state of prejudice to
    him.

[24]

The
    trial judge acknowledged, at p. 34, that most of the enumerated interests
    protected by s. 11(b) are not particularly applicable to the Applicants
    situation. He spent a single night in custody upon arrest and was released on
    conditions that were not particularly onerous.  His ability to make full
    answer and defence was unaffected by the delay, since the bulk of the evidence
    against him was digitally preserved. The trial judge concluded that the only
    protected interest of relevance was the personal prejudice the respondent
    suffered.

[25]

The
    trial judge continued, at pp. 34-35:

Societys interest in ensuring that a matter is tried on its
    merits must be given due consideration by the court. According to the Supreme
    Court of Canada in
R. v. Sharpe
, [2001] 1 S.C.R. 45, charges relating
    to child pornography are crimes of enormous gravity, affecting both the victims
    and society as a whole. At the same time, while the court held that society has
    a substantial and compelling interest in having such cases tried on their
    merits, the rights of the accused persons must be properly respected. The
    publics confidence cannot be allowed to be undermined by a justice system that
    permits its citizens, deemed innocent until proven guilty, to languish untried
    on an indefinite basis. In my view, it is not only in Mr. Stilwells interest,
    but also in the publics interest that he not have to wait over 26 months to
    have his charges finally concluded. This wait surpassed the bounds of
    tolerability.

(f)

Conclusion

[26]

The
    trial judge concluded, at p. 35:

I am satisfied that the 12.5 months of institutional delay
    considerably exceeds the 8 to 10 month guidelines established by the Supreme
    Court in
Morin
. Since I have made a finding that the Applicant
    suffered actual prejudice by having to wait this long to have his charges
    determined, I am satisfied that his rights under s. 11(b) of the
Charter
have
    been infringed. As a consequence, for the reasons noted, these charges will be
    stayed pursuant to s. 24(1).

Grounds of Appeal

[27]

Before
    this court, the Crown argues that a proper allocation of delay would be as
    follows:



Intake
          period: neutral

nine months



Defence
          conduct

eight and
          a half months



Unexpected
          leave of officer in charge: neutral

two and a
          half months



Institutional
          delay

six and a
          half months



[28]

The
    Crown advances five grounds of appeal.

(a)     Defence Delay

[29]

First,
    it submits that the trial judge erred in failing to attribute more of the delay
    to the respondent despite correctly finding that the respondent should have set
    a trial date prior to receipt of the final report.

[30]

There
    is no question that the trial judge was critical of the defence, stating at p. 15:

I am convinced that the Defence could have used more diligence
    in obtaining the disclosure to a level that would have satisfied her and her
    client of the case they had to meet. Her oft-repeated mantra at virtually every
    court appearance that the Crown believed that the case should be adjourned in
    two month intervals demonstrated, in my view, a certain level of complacency. I
    remain unsatisfied that it was necessary for Defence counsel to wait for the
    absolute final report before setting her case down for trial.

[31]

The
    trial judge attributed five and a half months of the delay to the defence in
    part because she found that it was unnecessary for counsel to await the final
    report before setting a trial date. The trial judge explicitly recognized a
    practice in the Kingston area, albeit a regrettable one, for defence
    counsel to await receipt of the final report before setting a matter down for
    trial. On the other hand, the trial judge found that the record did not reveal
    any communications by the Crown that the case be set down for trial prior to
    completion of the final report, nor did the Crown make any effort to enlist the
    assistance of the court to encourage the setting of a trial date in the absence
    of a final report.

[32]

I
    would not give effect to this submission.

(b)     Intake Period for Child Pornography Charges

[33]

Secondly,
    the Crown submits that the trial judge erred in applying a standard period of
    inherent delay to a child pornography case; rather, the intake period should
    have been expanded to reflect the time required to produce the final report.  The
    Crown contends that in this case 14.5 months was required.

[34]

At
    first blush, this argument has some appeal.  The larger an accuseds database
    of child-related images, the longer it will take investigating officers to view
    and categorize those images.  Disclosure to the defence in the form of a final
    report will accordingly take more time. In this case, over 244,000 files had to
    be analyzed for evidence of child pornography. However, a close review of the
    record reveals that it took the investigating officers approximately 25 hours
    in aggregate to categorize the images found on the respondents computer.

[35]

In
    oral argument, the Crown did not dispute that 25 hours was the most she could
    prove on the record, but suggested that the officers time logs might not have
    recorded every minute they were categorizing images from the respondents computer
    because they often toggled back and forth between cases. The Crown urged the court
    to focus on the volume of images the officers had to review rather than the
    recorded hours it took them to do it.

[36]

Both
    the lead investigator, D.C. Morgan, and her replacement when she went on leave,
    D.C. Gobeil, testified on the amount of time they spent categorizing images for
    the respondents case.

[37]

D.C.
    Morgans notes reflect the hours that she worked on the respondents case.  She
    testified that she did not record every single time that she categorized
    images.  However, she agreed with defence counsels assertion that she could
    not say that the total time she worked on categorization for the respondents
    file was more than 9 hours, except to guess.

[38]

D.C.
    Gobeil had some familiarity with the case because he assisted in executing the
    search warrant on March 31, 2011, the day of the respondents arrest.  He
    testified that he did 75 to 80% of the categorization of the images for this
    case.  He did not assert that there were other times he worked on the
    categorization that were not recorded in his notes.

[39]

I
    accept that child pornography investigations are unique in that the storage
    capabilities of electronic devices may result in huge universes of information
    that can only be analyzed after charges have been laid. I also recognize that
    officers categorizing these types of images need frequent breaks due to the
    emotional toll associated with the work. But I reject the Crowns suggestion
    that the categorization inherently demanded the additional five and a half
    months of time treated as Crown delay by the trial judge.  It should not
    properly be described as neutral time.  I see no error in the trial judges treatment
    of the intake and inherent time allocations.

(c)     Eleven Months Between January and November 2012

[40]

Thirdly,
    the Crown submits that the approximately five month period between delivery of
    the final report in June 2012 and the setting of a trial date in November 2012 ought
    to have been attributed to the defence, together with a material portion of the
    period between January 2012 and June 2012.

[41]

The
    trial judge addressed the 11 month period between January and November 2012.
    She observed that the defence did not pick up the final report until sometime
    in August even though it was ready on June 20, 2012.  Moreover, a trial date
    was not selected until November 20, 2012.  That said, the trial judge found
    that there was nothing in the record that reflected any Crown efforts to hasten
    disclosure. The Crown did not make inquiries of the police to ascertain their
    progress with the report.  She therefore assigned five and a half months of the
    delay for the 11 month time period to the Crown and five and a half to the
    defence, essentially finding that both sides were equally responsible for this
    delay.  I am unable to conclude that this was in error.

(d)     Leave of Absence

[42]

Fourth,
    the Crown submits that the trial judge erred in failing to treat any of the
    delay resulting from D.C. Morgans unanticipated leave of absence as neutral.  In
    particular, the Crown argues that a delay of two and a half months arose when she
    went on leave because D.C. Gobeil could not immediately start work on the
    respondents case. The Crown asserts that this delay should be classified as
    neutral to reflect the time required to find a competent interim replacement.

[43]

In
R. v. MacDougall
, [1998] 3 S.C.R. 45, at para. 45, the Supreme Court held
    that the inherent time requirements of a case are not limited to commonplace
    delays which occur in every situation, but may include delay due to
    extraordinary and unforeseeable events. This statement was a recognition that
    each case will bring its own set of facts which must be evaluated:
MacDougall
,
    at para. 45, citing
Morin
, at p. 792.

[44]

In
    my view, the trial judge did not err in failing to allocate additional neutral
    time to D.C. Morgans leave of absence.  First, the trial judge did consider
    the unanticipated leave in assigning nine months to the intake period.

[45]

Secondly,
    while the trial judge did state that D.C. Morgans leave was unexpected, D.C.
    Morgan provided two to three weeks notice of her leave, she knew that D.C.
    Gobeil would be assuming her caseload and she briefed him before she left.  The
    Crown asserts that two and a half months were required to find a competent
    replacement for D.C. Morgan, but this is not borne out by the record.  D.C.
    Gobeil was always to be her replacement.  The reason for this delay was his
    inability to start on the categorization until late July 2011, due to his
    existing workload. The problem was not the leave-taking; it was insufficient
    resources.

(e)     Prejudice and
    Balancing of Interests

[46]

Finally, the Crown submits that a correct balancing of the interests protected
    by s. 11(b) provided no justification for a stay.  The Crown argues that the
    combination of defence conduct inconsistent with a desire for a timely trial,
    minimal prejudice suffered by the respondent, the seriousness of the charges and
    the total delay that nominally exceeded the
Morin
guidelines demands
    that the case be heard on its merits.

[47]

I agree with this submission.  I do so for the following reasons.

[48]

The
    reasonableness of delay under s. 11(b) of the
Charter
is assessed by
    looking at the length of the delay, less any periods that have been waived by
    the defence, and then by taking into account the reasons for the delay, the
    prejudice to the accused, and the interests that s. 11(b) seeks to protect:
Morin
,
    at pp. 786-89;
R. v. Godin
, 2009 SCC 26, [2009] 2 S.C.R. 3, at para.
    18.

[49]

In
R. v. Bennett
(1991), 3 O.R. (3d) 193 (C.A.), affd [1992] 2 S.C.R.
    168, Arbour J.A. (as she then was) stated, at p. 211: Ultimately, it is the
    reasonableness
of the total period of time
that has to be assessed in
    the light of the reasons that explain its constituent parts (emphasis added).

[50]

In
    the case under appeal, the trial judge determined that the entire 26 month and seven
    day period of delay surpassed the bounds of tolerability, but in reaching
    this conclusion, she did not revisit her analysis of the time periods that
    comprised that final tally.

[51]

While
    over 26 months elapsed between the respondents arrest and the s. 11(b)
    hearing, 14.5 of those months did not count against the Crown for s. 11(b)
    purposes (nine months of neutral intake plus five and a half months of defence
    delay).  The trial judge further found that the seven months of institutional
    delay was well within the period deemed acceptable by the Supreme Court. 
    Indeed, this institutional delay was actually shorter than the eight to ten
    months guideline set out in
Morin
. The trial judge concluded that only
    five and a half months of the 26 month total was
unreasonable
delay
    attributed to the Crown.

[52]

Furthermore,
    the trial judge characterized the 12.5 months (the total of Crown and
    institutional delay) as considerably exceeding the
Morin
guideline
    of eight to ten months. With respect, I disagree.  When regard is had to the
    minimal prejudice suffered by the respondent, discussed below, this
    characterization is misplaced.   As held by this court in
R. v. Tran
,
    2012 ONCA 18, 287 O.A.C. 94, at para. 63:

The
Morin
guideline for delay in the Ontario Court of
    Justice is eight to ten months.  However, the guideline is just that: a
    guideline, not a limitation period.  Deviations of several months in either
    direction can be justified by the presence or absence of prejudice:
Morin
,
    at p. 807.

[53]

Additionally,
    while earlier in her analysis the trial judge found that the respondent could
    have, and should have, been more diligent in moving the case forward, she did
    not factor the respondents own contribution to the delay into her prejudice
    analysis.  In
Morin
, Sopinka J. held, at p. 802, that inaction by an
    accused may be relevant in assessing the degree of prejudice:

Action or non-action by the accused which is inconsistent with
    a desire for a timely trial is something that the court must consider. [T]he
    court must be careful not to subvert the principle that there is no legal
    obligation on the accused to assert the right [to a speedy trial].  Inaction
    may, however, be relevant in assessing the degree of prejudice, if any, that an
    accused has suffered as a result of delay.
Conduct of the accused falling
    short of waiver may be relied on to negative prejudice.
[Emphasis added.]

[54]

There
    were nine status court hearings between June 2011 and November 2012. In my
    view, if the trial judge thought that the defence should have moved more
    quickly in setting a date and that not all these appearances were necessary,
    that should have been reflected in her prejudice analysis. Instead, the trial
    judge held that the cost of multiple court appearances and meetings over two
    years constituted serious, additional financial prejudice to the respondent.
    On the trial judges own findings, some of this cost was unnecessary and was
    the result of the respondents (or his counsels) considered choices.

[55]

The
    period of unreasonable Crown delay must also be balanced against the minimal
    prejudice the respondent experienced
as a result of the delay
as
    opposed to the fact of the charges. In my view, the trial judge did not
    adequately make this distinction.

[56]

The
    trial judge found that the respondent suffered "personal prejudice"
    because he could not socialize with friends, family and co-workers for fear
    there may be children present. The bail conditions imposed the restriction on
    being near children. Contrary to the trial judge's finding, the outstanding
    criminal charges did not prevent the respondent from engaging in
    age-appropriate social activities such as dating or meeting friends after work.

[57]

On
    the trial judges own findings, the delay did not adversely affect the
    respondents liberty interests (he spent one night in custody, and thereafter
    was released under liberal bail conditions).  He also secured full-time
    employment within weeks of being charged.

[58]

Nor
    did the delay impair the respondents fair trial rights, because the evidence
    against him was digitally preserved and did not rely on witnesses memories.   This
    factor, while not dispositive, distinguishes this case from those where delay
    undermines an accuseds ability to make full answer and defence.

[59]

In
Godin
, for example, the accused was charged with sexual assault in
    circumstances where the complainants rape kit included a DNA profile of semen
    that did not match the accuseds DNA.  The Crowns delay in disclosing the DNA
    analysis had the potential to undermine the accuseds ability to cross-examine
    relevant witnesses on when the complainant last had sex.  This led to a risk of
    prejudice to the accuseds ability to make full answer and defence.
[4]




[60]

I
    also note that in the case under appeal, the respondent never applied to vary
    bail even though the Crown expressed a willingness to amend his release terms. 
    While his bail conditions are relevant in assessing the degree of prejudice he suffered,
    the respondents failure to seek a variation of those conditions undercuts the trial
    judges conclusion that the respondent suffered personal prejudice serious
    enough to warrant a stay of proceedings.

[61]

Lastly,
    in my view, while the trial judge did not err in finding some prejudice, she significantly
    under-emphasized the seriousness of the charges against the respondent and
    societys interest in having them tried on their merits.  At p. 787 of
Morin
,
    Sopinka J. stated that as the seriousness of the offence increases, so does the
    societal demand that the accused be brought to trial.   Further, as McLachlin
    J. (as she then was) stated in her concurring reasons in
Morin
, at p.
    812: 
Where the accused suffers little or no prejudice, it
    is clear that the consistently important interest of bringing those charged
    with criminal offences to trial outweighs the accused's and society's interest
    in obtaining a stay of proceedings on account of delay, because the consequences
    of the delay are not great.

[62]

The
    police found over 9000 images and 60 videos of child pornography on the
    respondents computer.  D.C. Gobeil testified that he was struck by the volume
    of pictures, noting:

[S]ometimes when you categorize images on a computer you will
    get long streaks of sort of normal, run of the mill everyday surfing habits. 
    People read news.  People read internet sites.  Just about every picture [on
    the respondents computer] was pictures of children, whether they were clothed
    or unclothed or partially clothed.

[63]

Most
    recently, the Supreme Court commented on the gravity of child pornography
    offences, albeit in the context of a s. 8
Charter
infringement, in
R.
    v. Spencer
, 2014 SCC 43. In that case, the accused was charged with
    possession and distribution of child pornography.  The Supreme Court held that
    the accuseds s. 8 rights had been infringed because the police had obtained
    his IP address without prior judicial authorization.  At para. 78, the Supreme
    Court described the impact on the accuseds
Charter
-protected rights
    as serious but nonetheless determined that the evidence should not be
    excluded.  Cromwell J. explained, at para. 80:

Society has both a strong interest in the adjudication of the
    case and also in ensuring that the justice system remains above reproach in its
    treatment of those charged with serious offences.  If the evidence is excluded,
    the Crown will effectively have no case.  The impugned evidence (the electronic
    files containing child pornography) is reliable and was admitted by the defence
    to constitute child pornography.
Society undoubtedly has an interest in
    seeing a full and fair trial based on reliable evidence, and all the more so
    for a crime which implicates the safety of children
. [Emphasis added.]

[64]

I
    recognize that the judicial balancing task under s. 8 of the
Charter
is different

than it is under s.
    11(b) of the
Charter
.  Nonetheless, the public interest in having
    crimes against children prosecuted on their merits remains the same.  The
    public interest in trying these charges is obvious and compelling.

Conclusion

[65]

I
    agree with the trial judge that the Crown delay in disclosing the final report
    was clearly disproportionate to the time spent preparing it.  In my view,
    however, this fact should not overwhelm the analysis.  On the trial judges own
    findings, the delay in disclosing the final report accounted for only five and
    a half months of the total 26 month period.  The bulk of the time was taken up
    by neutral intake time (nine months), defence delay (five and a half months)
    and reasonable institutional delay (seven months).  When the five and a half
    months of unreasonable Crown delay is added to the institutional delay, the
    total is 12.5 months  beyond the
Morin
guideline, but not egregiously
    so.  When this delay is balanced against the minimal prejudice the respondent
    experienced and the grave seriousness of the charges against him, the delay,
    while not ideal, was not unreasonable.

[66]

For
    these reasons, I would allow the appeal, set aside the stay, and order that the
    matter proceed to trial.

Released: SEP July 24, 2014

S.E. Pepall J.A.

I agree. E.A. Cronk
    J.A.

I agree. M. Tulloch
    J.A.





[1]
When the parties finally set the matter down for trial on November 20, 2012,
    the first available trial date when all witnesses were available was June 7,
    2013. The respondent filed the underlying
Charter
application prior to
    trial, and it was heard on June 7, 2013.



[2]
The Crown conceded that the time from the set date to the s. 11(b) hearing
    should be considered institutional delay.



[3]
The trial judges calculations actually add up to 27 months although the delay
    was 26 months and 7 days.  The discrepancy arises from a rounding up of the
    time between the end of the intake period (January 1, 2012) and the date the
    matter was set down for trial (November 20, 2012) and in commencing the
    institutional delay from November 7, 2012, the status court date, rather than
    November 20, 2012 when the trial date was selected.



[4]

Godin
also differed in other material respects from this case; for
    example, virtually all of the delay was attributable to the Crown, and the
    defence tried in vain to move the case forward more quickly.


