



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. D.N.,









2018 BCCA 18




Date: 20180119

Docket: CA42614

Between:

Regina

Respondent

And

D.N.

Appellant

Restriction on Publication: A publication ban has been mandatorily
imposed under s. 486.4 of the
Criminal Code
restricting the
publication, broadcasting, or transmission in any way of evidence that could
identify a complainant or witness under the age of 18, referred to in this
judgment by the initials P.S. (also known as P.N.).
This publication ban
applies indefinitely unless otherwise ordered.

Section
16(4)
Sex Offender Information and Registration Act (SOIRA)
:
This section provides that no person shall disclose any information that is
collected pursuant to an order under
SOIRA
or the fact that information
relating to a person is collected under
SOIRA.




Before:



The Honourable Madam Justice D. Smith

The Honourable Mr. Justice Willcock

The Honourable Mr. Justice Goepel




On appeal from: An
order of the Supreme Court of British Columbia,
dated June 6, 2017 (
R. v. D.N.
, 2014 BCSC 1144,
New Westminster Docket No. X073863-3).




Counsel for the Appellant:



G. Botting





Counsel for the Respondent:



J. Caldwell





Place and Date of Hearing:



Vancouver, British
  Columbia

November 20, 2017





Place and Date of Judgment:



Vancouver, British
  Columbia

January 19, 2018









Written Reasons by:





The Honourable Madam Justice D. Smith





Concurred in by:





The Honourable Mr. Justice Willcock





The Honourable Mr. Justice Goepel








Summary:

The appellant challenges his
convictions for three historical sexual offences committed against his
step-daughter when she was under the age of 14. The appellant was originally
charged with the first count in 1986, but that charge was stayed after he absconded
the jurisdiction. It was re-laid in 2009, along with the other two counts,
after he returned to the jurisdiction. The appellant submits the judge erred by
refusing to stay the first count for unreasonable delay, which he had argued
based on pre-charge delay, contrary to s. 11(b) of the Charter
,
and
as a result of the new framework for s. 11(b) applications since R. v.
Jordan, erred in refusing to stay the other counts for unreasonable delay. The
appellant further submits the judge erred in (i) admitting two inculpatory
statements that he contends were involuntary and insufficiently recorded, (ii) misapprehending
certain evidence, and (iii) admitting what he characterized as highly
prejudicial evidence. Held: appeal dismissed. Jordan

was released after trial
judgment but before the appeal and so the proceeding was still in the system
and Jordan

applied. The judge did not err in dismissing the appellants
s. 11(b) application because the transitional circumstances exception, as set
out in Jordan, applied. The parties reasonably relied on the state of the law
at the time under R. v. Morin. Based on that jurisprudence, the appellant chose
not to advance an application for a stay of proceedings based on post-charge
delay because he could not establish that he had suffered prejudice by reason
of the delay. The trial judge also did not err in admitting the inculpatory
statements, did not misapprehend the evidence, and did not err in admitting
probative evidence that was relevant and not highly prejudicial given the
evidence that had been admitted.





Reasons for Judgment of the Honourable
Madam Justice D. Smith:

A.       Overview

[1]

D.N. appeals his June 6, 2014 convictions on two counts of sexual assault
and one count of sexual interference with his step-daughter, P.S., who was a
person under 14 at the time. The convictions followed an eight-day trial before
a judge sitting alone.

[2]

The charges were laid in an August 5, 2009 information; upon his
committal for trial they were preferred in an April 15, 2013 indictment. The
charges related to historical offences that covered two separate time periods
between 19831986, and 19901993, respectively.

[3]

At the conclusion of the evidence at trial, D.N. applied for a stay of
proceedings based on an alleged violation of his s. 11(b)
Charter
right
to be tried within a reasonable time. The judge dismissed his application and
registered the convictions.

[4]

On appeal, D.N. submits the judge erred in: (1) dismissing his application
for a stay of proceedings as a result of unreasonable delay; (2) admitting
into evidence two inculpatory statements he gave to the police that he submits were
involuntary and unreliable; (3) misapprehending evidence, which he says
resulted in a miscarriage of justice pursuant to s. 686(1)(a)(iii) of the
Criminal
Code
, R.S.C. 1985, c. C-46; and (4) admitting highly prejudicial
and irrelevant evidence. D.N. asks that the appeal be allowed, the convictions
set aside, and a stay of proceedings be granted for unreasonable delay. In the
alternative, he requests that an order of acquittal be substituted.

B.       Background

[5]

The indictment charged D.N. with the following offences:

1.

Sexual
assault of P.S., at or near Surrey, B.C., between May 1, 1983, and
March 31, 1986, contrary to s. 246.1 [now s. 271] of the
Criminal
Code
(Count 1);

2.

Sexual
assault of P.S., at or near Surrey, B.C., between January 1, 1990, and
October 31, 1993, contrary to s. 271 of the
Criminal Code
(Count
2); and

3.

Sexually
touching P.S., being a person under the age of 14 years, at or near Surrey.
B.C., between January 1, 1990, and September 1, 1991, contrary to
s. 151 of the
Criminal Code
(Count 3).

[6]

Both P.S. and D.N. testified at trial. The verdict turned largely on the
judges findings of credibility and reliability.

The Evidence on
Count 1

[7]

P.S. was born in 1978. In 1984, her mother, K.J., and D.N. were married.
At that time, the family lived in an apartment on Grosvenor Road in Surrey,
B.C.

[8]

P.S. testified that while at the Grosvenor Road apartment, D.N., on many
occasions, placed a blanket over her while they watched television alone at
night and touched her sexually under the blanket. She said D.N. told her not to
tell anyone or she would get in trouble. P.S. said she finally told a friend
who lived nearby about these episodes. She did not recall telling her mother. P.S.
also stated that someone came to her school in January 1986 to discuss sexual
touching with the students and that she told this person that D.N. had touched
her in the ways described.

[9]

The Ministry of Children and Family Development (the Ministry) eventually
became involved after receiving a report of the alleged abuse. The report
alleged that while P.S. was watching a television program on sexual abuse, she disclosed
to someone that she had been sexually abused by D.N. in the same manner as
depicted and that he had laid on top of her.

[10]

On January 13, 1986, a social worker with the Ministry interviewed
P.S. in the presence of Cst. Cousins. The evidence of this interview, which
was introduced in order to rebut allegations of recent fabrication, consisted
of a set of contemporaneous handwritten notes and the testimony of Cst. Cousins.
The officer recorded that P.S. recounted events that indicated she had been sexually
abused by D.N., including an instance in which P.S. said that she had laid
naked on top of a naked D.N., and that he had touched her genitals and asked
her to touch his penis.

[11]

On January 14, 1986, D.N. was arrested and given the requisite
Charter
warning. Thereafter, he gave two statements, one to Cst. Cousins and the
other to Cst. (now Inspector) Gosselin.

[12]

At trial, the two police officers testified that recording devices were
not used in their detachment at the time they took D.N.s statements. Instead, his
statements were recorded in the form of written notes made by each of them. The
statements included several inculpatory admissions.

[13]

On January 14, 1986, D.N. was charged in a provincial court

information
with a single count of sexual assault of P.S., alleged to have occurred between
January 1, 1985, and September 30, 1985, at Surrey, B.C. He was released
on an undertaking to attend court on February 4, 1986. Among other
prohibitions, the undertaking barred D.N. from having any contact with P.S. In
parallel proceedings, P.S. was declared a child in need of protection under
the then
Child and Family Service Act,
S.B.C. 1980, c. 11,

and
placed in foster care. These proceedings also resulted in an order that prohibited
D.N. from entering any premises where P.S. resided.

[14]

D.N. violated all of these prohibitions: he neither made the required court
appearance, nor did he respect the term prohibiting contact with P.S. In March
1986, he moved the whole family  including K.J., P.S., and P.S.s brother  to
Switzerland, where they stayed for several years. A bench warrant was issued
for his arrest when he failed to appear in court.

[15]

The Crown was unaware of D.Ns or P.S.s whereabouts until October 17,
1989, when D.N. suddenly reappeared and surrendered himself to the police on the
outstanding warrant. At that time, Crown counsel had a conversation with K.J.
As a result of that conversation, Crown counsel formed the understanding that
P.S. continued to live in Switzerland with her mother and that K.J. had no
intention of returning her daughter to Canada. Without P.S.s evidence, Crown
counsel was of the view that the matter could not proceed and on January 26,
1990, she stayed the information.

[16]

In fact, P.S. testified that she had returned to Canada in 1988 to live
with her aunt in Kimberley, B.C. and that in or about 1989 she returned to live
with her mother, her brother, and D.N., this time on 125
th
Street in
Surrey. P.S. further testified that D.N. continued to sexually abuse her at
that location. These allegations formed the basis for Counts 2 and 3 of the
indictment.

The Evidence on
Counts 2 and 3

[17]

P.S. testified that while living on 125
th
Street, D.N.
sexually abused her frequently, sometimes multiple times per week, by
performing oral sex on her and by putting his hands on or in her vagina,
particularly while she was sleeping. She said that she often wore jeans to bed
in an attempt to make it more difficult for these assaults to occur. She said
that when she was able to stop his advances, D.N. would berate her, call her
names, and complain that she was ungrateful. She also testified that D.N. would
frequently spy on her by peering up at her from the furnace room through holes
drilled in the bathroom floor, looking into her bedroom through a small space
created by pulling the door jamb away from the wall, and sneaking into her
bedroom closet to watch her undress.

[18]

D.N. and K.J. separated when P.S. was in Grade 9. P.S. said the sexual
assaults and sexual touching ceased at that point in time.

[19]

Years later, in September 2006, she reported these incidents to the police,
which led to D.N. being charged on August 5, 2009. The information sworn
at that time effectively resurrected the sexual assault count that was stayed
in 1990, and included the later allegations of sexual assault and sexual
interference at the 125
th
Street residence. After a preliminary
inquiry in November 2012, D.N. was ordered to stand trial on all three counts.
The committal order was followed by the April 15, 2013 indictment.

C.       The Trial Judgment

[20]

The judge found that while P.S. was not a perfect witness, he accepted
her evidence as credible and reliable. He did not make the same findings with
respect to D.N. He found that D.N.s evidence lacked credibility and he rejected
his evidence wherever it conflicted with that of P.S. He also rejected D.N.s
submission that P.S.s allegations were motivated by an animus toward him that
arose in part from her and K.J.s allegations that he had physically assaulted
them. The judge explained his credibility findings in part as follows:

[61]      D.N. testified that his arrest was a big surprise
when it occurred in 1986. That statement is an odd response and in conflict
with what he said to the police in the statements which he made noted above. He
admitted he had done things that his daughter had forgotten for which he sought
and received help. He responded to a question about sexual assault by asking
for the definition of sexual assault. The logical response of an innocent
parent to a question would have been a strong No or a similar firm rejection
of that suggestion. D.N.s response was not logical. He testified he only said
what popped into his mind.

[62]      In response to the question:

Q.        You
know your daughter has no reason to lie, shes not gaining anything by making
up a story. Do you think at her age she even knows what sex is?

A.         I
know, I know. I dont think that its fair that someone should have to go to
jail for sexually assaulting his own child. The police shouldnt even get
involved. The family can work it out on their own.

[63]      Curiously, D.N.
challenged parts of the statement handwritten by Constable Cousins,
particularly where he agreed he was naked when alone with P.S. in the living
room lying under the striped blanket watching television. He testified that
statement was false and he suggested the police officer created it. It was
simply not something he said, according to him. Before that statement, D.N. had
repeatedly said he did not remember what he said to police. His response
demonstrated internal inconsistency in his evidence.

[21]

Following a
voir dire,
the judge ruled that D.N.s two statements
to police were voluntary:
R. v. D.N.,
2014 BCSC 2588 [
Voir Dire
Reasons
.] The Crown obtained that ruling for the purposes of
cross-examination in the event that D.N. elected to testify. D.N. testified in
the trial and the statements were put to him on cross-examination. The judge
found they amounted to admissions by D.N. of sexual activity with P.S. when she
was a child.

[22]

The judge also rejected D.N.s suggestion that his statements, as recorded
by Csts. Cousins and Gosselin, had been tampered with. The judge found that
there was no evidentiary foundation for what he characterized as an extremely
serious allegation. Furthermore, the allegation was not even put to either
police witness on cross-examination in accordance with the rule in
Browne v.
Dunn
(1893)
,
6 R. 67 (H.L.).

[23]

Ultimately, the judge rejected D.N.s declaration that he did not
sexually assault or sexually touch P.S.

[24]

Applying the test in
R. v. W.(D.),
[1991] 1 S.C.R. 742, the judge
concluded that based on the evidence as a whole, including the evidence of P.S.
which he accepted, the Crown had proved each of the elements of the offences in
all three counts beyond a reasonable doubt.

[25]

Before registering the verdicts, the judge ruled on D.Ns application
for a stay of proceedings on Court 1, which was brought after the close of
evidence. The judge noted that in general such an application should not be
brought at that stage of the proceeding, but he agreed to hear the application
at that time because of the very unusual circumstances of the case.

[26]

D.N. submitted that the
pre-charge delay
between the
staying of the original charge on January 26, 1990, and the laying of the
current charges in the August 5, 2009 information, violated his right to
be tried within a reasonable time with respect to Count 1. He contended that the
almost 20-year delay between the staying of the initial charge for the alleged
1983
‒
1986 offence and
the August 5, 2009 information, and the delay between September 2006, when
P.S. filed her complaint, and the laying of charges on August 5, 2009, were
unreasonable and solely attributable to the Crown. With respect to Counts 2 and
3, D.N.s trial counsel advised the judge that he was not applying for a stay
of proceedings on those counts. He explained that after reviewing the Crowns
argument, he had concluded that he wouldnt be likely to succeed at all based
on the state of the law as it then existed under
R. v. Morin,
[1992] 1
S.C.R. 771, which required D.N. to establish actual prejudice as a result of
the delay. In short, only pre-charge delay was raised as the basis for the stay
application and it was argued under the
Morin
framework. D.N. made no claim
of
post-charge delay
with respect to Count 1.

[27]

The judge determined the application under the
Morin
framework
by considering the factors of: the overall length of delay, the waiver of individual
time periods, the reasons for various periods of delay, and any prejudice to
the accused. While recognizing the almost 20-year delay was significant, he
noted that it was not the only factor to be considered. He also observed that
D.N. put his own case off the rails when he left and took the Crowns key
witness to Switzerland, in breach of his undertaking. The judge recognized that
there was no evidence of pre-trial custody or strict bail conditions and he was
not willing to infer prejudice to D.N. in those circumstances. Lastly, he was
of the view that the balance of societal interests favoured a trial on the
merits. He concluded that given the seriousness of the charges and the lack of
proven prejudice, D.Ns application should be dismissed.

D.       Issues on Appeal

[28]

D.N. raises four grounds of appeal. He submits:

1.       The judge erred in dismissing the stay application based on
the new framework for s. 11(b) applications in
R. v. Jordan,
2016
SCC 27;

2.       The judge erred in finding D.N.s two statements to the police
were voluntary and sufficiently recorded;

3.       The judge erred in
misapprehending the evidence; and

4.       The
judge admitted highly prejudicial and irrelevant evidence from D.N. and P.S.s
time in Switzerland.

E.       Unreasonable Delay

[29]

The Crown contends this Court should not hear D.Ns submissions on post-charge
delay as D.N. chose not to raise this issue before the trial judge because he
could not prove actual prejudice. The Crown asserts that
Charter
applications
should not be argued as a matter of first instance on appeal because of the absence
of factual findings relevant to the application:
Bell ExpressVu Limited
Partnership v. Rex
, 2002 SCC 42

at para. 59;
Guindon v.
Canada
, 2015 SCC 41 at paras. 20
‒
23
and 35;
R. v. Winfield
, 2009 YKCA 9 at paras. 17
‒
18.

[30]

In the alternative, the Crown submits that if the Court decides to hear
this application under the new framework established in
Jordan
, as
requested by D.N., the net delay, after subtracting delay attributable to the
defence and discrete events, was in fact only 29 months and 23 days, a period
of time below the presumptive ceiling of 30 months for unreasonable delay. If the
Court finds that the delay does exceed the presumptive ceiling, the Crown
submits the application should still be dismissed pursuant to the transitional circumstances
exception in
Jordan
, given that: (1) the judge found there was no demonstrated
actual or inferred prejudice to D.N. as a result of the delay; (2) the
alleged offences are serious; and (3) the Crown and the judge were not
complacent and acted with a sense of urgency at various stages of the
proceedings after the August 5, 2009 information was sworn.

The
Jordan
framework

[31]

Jordan
established a new framework for determining s. 11(b)
Charter
applications. Delay will be presumptively unreasonable where total delay from
the date of the charge to the actual or anticipated date for the end of trial
(minus defence delay) exceeds 18 months in a provincial court and 30 months in a
superior court. A stay will follow unless the Crown can establish the presence
of exceptional circumstances.

[32]

Exceptional circumstances are those that are beyond the Crowns ability
to control. They include circumstances that are reasonably unforeseen or
reasonably unavoidable, and which the Crown cannot remedy once they arise. They
generally fall into two categories: discrete events and particularly complex
cases. The former will be subtracted from the total period of delay in
determining if the presumptive ceiling has been exceeded; delay in the latter,
if found to be justified, will not be considered unreasonable.

[33]

Significantly,
Jordan
provides that the Crown may no longer rely
on the seriousness or gravity of the offence, inherent time requirements and
chronic institutional delay, or the absence of prejudice to justify delay that
has exceeded the presumptive ceilings. Once the presumptive ceiling is
breached, prejudice is inferred and the delay is unreasonable absent
exceptional circumstances.

[34]

If the period of delay falls below the presumptive ceiling, the burden
is on the defence to establish that: (1) it took meaningful steps that
demonstrated a sustained effort to expedite the proceedings; and (2) the
case took markedly longer than it reasonably should have.
Jordan
also notes
that a stay application for delay that falls below the presumptive ceiling will
only be granted in the clearest of cases.

[35]

The new s. 11(b)
Charter
framework applies to cases in which
charges were brought before the release of
Jordan
and which remain currently
in the system. However, for such cases, the transitional circumstances exception
may arise where the Crown can establish that the delay was justified based on
the parties reasonable reliance on the law as it previously existed.

[36]

The application of the transitional circumstances exception requires a
contextual assessment. The Court described the nature of such an analysis as
follows:

[96]       This requires a
contextual assessment, sensitive to the manner in which the previous framework
was applied, and the fact that the parties behaviour cannot be judged
strictly, against a standard of which they had no notice. For example,
prejudice and the seriousness of the offence often played a decisive role in
whether delay was unreasonable under the previous framework. For cases
currently in the system, these considerations can therefore inform whether the
parties reliance on the previous state of the law was reasonable. Of course,
if the parties have had time following the release of this decision to correct
their behaviour, and the system has had some time to adapt, the trial judge
should take this into account.

[37]

The Court added:

[102]    Ultimately, for most cases that are already in the
system, the release of this decision should not automatically transform what
would previously have been considered a reasonable delay into an unreasonable
one. Change takes time.

[103]     The reasonableness of
a period of time to prosecute a case takes its colour from the surrounding
circumstances. Reliance on the law as it then stood is one such circumstance.

[38]

Subsequently, the Court confirmed the application of the
Jordan
framework
in
R. v. Cody,
2017 SCC 31. In
Cody, Jordan
had been released
while a Crown appeal from the trial judges order granting a stay of
proceedings was under reserve before the Newfoundland and Labrador Court of
Appeal. The net delay of 36.5 months in the case, after deducting defence delay
and discrete events, clearly exceeded the presumptive ceiling. The charges for
drug trafficking and weapons offences were serious, and the entire trial
proceedings pre-dated
Jordan.
However, the Court held those
circumstances were overcome by the trial judges findings of real and
substantial actual prejudice and that the accuseds conduct was not
inconsistent with the desire for a timely trial (at para. 73). Faced
with those findings, the Court held that the presumptively unreasonable delay
could not be justified based on the Crowns reliance on the previous state of the
law, observing:

[74]       Where a balancing of
the factors under the
Morin
analysis, such as seriousness of the offence
and prejudice, would have weighted in favour of a stay, we expect that the
Crown will rarely, if ever, be successful in justifying the delay as a
transitional exceptional circumstance under the
Jordan
framework.

[39]

In the course of its analysis, the Court clarified the assessment of the
transitional exception as being a qualitative exercise, which presum[es] that
the Crown and defence relied on the previous law until
Jordan
was
released (at para. 69). The Court reiterated that the exception should be
considered in those cases that were in the system before
Jordan
,
stating:

[69]       The determination of
whether delay in excess of the presumptive ceiling is justified on the basis of
reliance on the law as it previously existed must be undertaken contextually
and with due sensitiv[ity] to the manner in which the previous framework was
applied (
Jordan,
at paras. 96 and 98). Under the
Morin
framework,
prejudice and seriousness of the offence often played a decisive role in
whether delay was unreasonable (
Jordan,
at para. 96).

Application of
Jordan

[40]

Before the trial judge, counsel for D.N. limited his s. 11(b)
Charter
application to Count 1, accepting that under the
Morin
framework he was
unlikely to be successful on the other counts, given the seriousness of the
charges and D.N.s inability to prove actual prejudice. The focus of his
submissions, however, were on the almost 20-year pre-charge delay, which
included the three years between P.S. filing her complaint in September 2006,
and the swearing of the information on August 5, 2009. Post-charge delay
was never raised as an issue.

[41]

In calculating the length of the delay, the Court in
Morin
confirmed
(at 789) that the relevant period of time is from the date on which charges are
laid  being the date on which an information is sworn or an indictment is
preferred  to the end of the trial; pre-charge delay is not counted in the analysis
under s. 11(b). In this case, the judge dismissed the stay application in
the absence of evidence of prejudice to D.N. caused by the pre-charge delay and
after weighing the societal interests in having these serious charges
determined on their merits.

[42]

Jordan
was released before D.N.s appeal was heard. Therefore, this
case was still in the system and this Court should hear this ground of appeal. If
the delay is found to fall under the presumptive ceiling, then the burden is on
D.N. to establish that the delay is unreasonable by demonstrating that:
(1) he took meaningful steps that demonstrate a sustained effort to
expedite the proceedings; and (2) the case took markedly longer than it
reasonably should have (
Jordan
at para. 48). If the net delay is
found to exceed the 30-month presumptive ceiling, then under the
Jordan
framework,
this Court must consider application of the transitional exceptional
circumstance in determining if the Crown has rebutted the presumption of
unreasonable delay.

[43]

Counsel for the Crown made detailed submissions to demonstrate that the
actual net delay in this case amounted to only 29 months and 23 days, seven
days less than the presumptive ceiling of 30 months
.
The Crown
calculated that period based on excluding: (1) what it described as an
illegitimate and unsuccessful
Rowbotham
application for state-funded
counsel, that consumed a period of time from August 5, 2009 to
January 25, 2011 (about 18 months), involved D.N. failing to make timely
disclosure of his financial circumstances, and resulted in further delay in
setting the preliminary inquiry date; (2) the delay from December 13,
2012 to January 31, 2013, occasioned by D.N.s lack of readiness to fix a
trial date in the Supreme Court, when the Court and Crown counsel, were
available; and (3) the delay from September 6, 2013 to June 6,
2014, caused by the discrete event of the estimated four-day trial extending to
eight days due to the extensive cross-examination of P.S. and D.N. and bringing
his s. 11(b)
Charter
application at the conclusion of the evidence,
albeit with the consent of all parties and the judge.

[44]

In response, D.N. submits that the length of the delay began to run from
when the Crown entered a stay of proceedings on January 26, 1990, with
respect to the original Count 1 charge. In support of this position, D.N.
relies on
R. v. D.M.,
2012 ONSC 221, and
R. v. Milani,
2012 ONSC
6892, which held that the gap in time between a Crown stay and a later revived
charge should count in calculating the length of the delay.

[45]

However,
Milani
was overturned on appeal, which effectively
overruled
D.M.
as well:
R. v. Milani,
2014 ONCA 536 [
Milani
CA].
In
Milani CA,
the Ontario Court of Appeal held that an accuseds
s. 11(b)
Charter
right is not engaged during the gap between a
Crown stay and a new or revived charge, and therefore that period of time should
not be counted in calculating the length of the delay. In support of that position,
the Court, at paras. 4447, relied on
R. v. Potvin,
[1993] 2 S.C.R.
880, where the Supreme Court held that appellate delay does not apply to
s. 11(b), which requires that active charges be outstanding against the
person. In
Milani CA
, (at para. 50), the Court concluded that for
the purposes of s. 11(b), the delay clock begins to run when the initial charges
are laid, stops during the gap, and begins to run again when the charges are
re-laid. Parenthetically, I would observe that it is unclear whether the Court
is saying that the clock completely restarts, or picks up again from where it
left off. This issue was not raised in this appeal and therefore I find it
unnecessary to decide.

[46]

Similarly, in
R. v. Hunt,
2017 SCC 25, revg 2016 NLCA 61, the Court
allowed the appeal, substantially for the dissenting reasons of Madam Justice
Hoegg, who confirmed that pre-charge delay should be considered under s. 7,
not s. 11(b).

[47]

As discussed further below, it is my view that this issue should be
decided on the basis of the transitional exception under
Jordan
and
therefore it is unnecessary to determine here whether the delay occasioned by the
Crown stay of proceedings should be included in calculating whether the presumptive
ceiling has been exceeded.

[48]

On appeal, D.N. also takes issue with the Crowns exclusion of the
approximate 18-month delay caused by his unsuccessful
Rowbotham
application
and the approximate one-and-a-half-month delay for the assignment of
court-appointed counsel to cross-examine P.S. He also submits the Crown has
overstated the delay attributable to the defence by including a number of court
appearances going back to August 5, 2009. D.N. argues that under the
Morin
framework these appearances would have been characterized as inherent time
requirements (i.e., intake delay) and would not have been attributable to either
party. Under the
Jordan
framework, this aspect of delay is now part of
the 30-month presumptive ceiling.

[49]

During oral submissions, counsel for the Crown acknowledged that even if
the Court accepted that D.N.s conduct in pursuing the trial process was dilatory,
a number of the court appearances following August 5, 2009 could be
characterized as part of the former inherent time requirements, which are now
counted towards the 30-month ceiling under
Jordan
. Therefore, as the
period at issue in this case is a matter of only seven days, the Crown agreed that
it might be better for this Court to conduct its analysis under the
transitional exception. I agree. Therefore, for the purposes of this appeal, I
am assuming, without deciding, that the delay in this case, from the laying of
the charges on August 5, 2009 to the end of trial on June 6, 2014,
does exceed the 30-month presumptive ceiling set out in
Jordan
. As a
result, the Crown bears the burden of establishing that the delay is
nevertheless reasonable due to the transitional circumstances exception.

[50]

It is clear that the parties relied on the state of the law as it
existed before
Jordan
to inform their respective positions before the
judge. This was evident in D.N.s decision to make no s. 11(b)
Charter
application
with respect to post-charge delay, and in limiting his submissions on Count 1 to
pre-charge delay only. However, as alluded to above, the s. 11(b)
Morin
framework does not apply to pre-charge delay although the judge, in
dismissing D.N.s application, relied on that framework. In doing so, he expressly
found no evidence of prejudice and concluded that the seriousness of the
alleged offence weighed in favour of determining its merits at trial,
particularly as much of the pre-charge delay was caused by D.N.s actions in absconding
from the jurisdiction.

[51]

By deciding not to pursue the issue of post-charge delay at trial, D.N.
accepted that the post-charge delay was not unreasonable under the
Morin
framework.
Due to the manner in which D.N. raised the s. 11(b) issue at trial, the
judge never expressly considered whether D.N. suffered any prejudice with
respect to the time period after August 2009. On appeal, D.N. presented no new
evidence, nor pointed to any existing evidence in the record, to demonstrate that
prejudice should have been found or inferred by the trial judge under the
Morin
framework. As a result, it cannot be said the judge erred in dismissing
D.N.s application for a stay of proceedings for unreasonable post-charge delay
as that claim was never advanced because the appellant admittedly could not
establish that he had suffered prejudice, a key aspect of the
Morin
framework
(
Cody
at para. 69).

[52]

The transitional exception has been applied in several pre-
Jordan
cases
that remained in the system on appeal, where the net delay exceeded the
presumptive ceiling of 30 months:
R. v. Gordon
, 2017 ONCA 436 at paras. 2028
(53-month net delay);
R. v. Dieckmann,
2017 ONCA 575 at paras. 1730
(50-month net delay); and
R. v. Baron,
2017 ONCA 772 at paras. 4481
(35-month net delay). In each instance, an application of the transitional
exception resulted in a finding that the delay was not unreasonable. The
circumstances in this appeal are similar and accordingly I would dismiss this
ground of appeal.

[53]

The Crowns submissions also rely on what it describes as its culture
of urgency surrounding the trial of this case. In my view, this claim does not
form a distinct part of any of the s. 11(b) frameworks, whether under
Morin
,
Jordan
, or
Cody
. Rather, the Crown appears to be raising this issue
to dispel any notion that it fell into the culture of complacency or culture
of delay that the Court generally admonished in
Jordan
.

[54]

A sense of urgency on the part of the Crown may come into play in certain
aspects of the
Jordan
framework. If the delay falls below the
presumptive ceiling, the urgency with which the Crown prosecuted the case may
demonstrate that the case did not take longer than it reasonably should have.
If the delay falls above the presumptive ceiling, it may demonstrate that the
Crown has met its burden of establishing exceptional circumstances by showing
that it could not reasonably remedy any delays that arose and took reasonable
available steps to avoid and address the problem before the delay exceeded the
ceiling (
Jordan
at para. 70). The first scenario does not arise on
the facts of this case and I have concluded that the Crown has succeeded under
the transitional exception. Consequently, I do not find it necessary to address
this issue raised by the Crown.

F.       The Admissibility and Completeness of D.N.s Statements

[55]

The judge found that D.N.s statements to Csts. Cousins and Gosselin in
1986 were voluntary and recorded as completely as possible by their handwritten
notes. The judge accepted their evidence that recording devices were not
available in the detachment at the time.

[56]

D.N. contends that the contents of the handwritten statements are
unreliable for a number of reasons, including: the manner in which they were
recorded; the current preferable practice of electronic recording; and the inadequacy
of handwritten statements in general and in this case in particular. He also
seeks to advance new allegations regarding the voluntariness of the statements,
which were not raised at trial, and for which no evidence has been elicited in
a fresh evidence application.

[57]

In the
voir dire,
the police officers testified that, at the
time, the Cloverdale Detachment had no capacity for recording any statement by
an accused electronically. The handwritten statement recorded by Cst. Cousins
included some minor scratch outs that she had D.N. initial in each instance,
in addition to securing D.N.s signature or initials at the bottom of each page
indicating that he had read the document. The judge found that the statement
accurately reflected what D.N. had said to her (
Voir Dire Reasons
at para. 5).
He also found that the second statement taken by Cst. Gosselin, which
contained a detailed handwritten account that was transcribed into typewritten
form after which the handwritten notes were destroyed, was also complete. The
judge noted that the statement even recorded an interest expressed by D.N. at
one point in the interview in calling a lawyer, but when Cst. Cousins took
steps to make that arrangement, D.N. had changed his mind (
Voir Dire Reasons
at para. 7).

[58]

D.N. did not testify in the
voir dire
or tender any evidence to
the contrary
.

[59]

The judge concluded that based on the legal test from
R. v. Oickle
,
2000 SCC 38,

and the evidentiary record on the
voir dire,
the two
warned statements were voluntary and therefore admissible. As to their
completeness, he held that the contents of the statements would go to their
weight in the trial proper (
Voir Dire Reasons
at para. 9), while
noting:

[3]         At that time in Cloverdale there was no capacity
for recording electronically any statements given by an accused person. But it
is important to note that the document that was produced contains the following
statement made by D.N.:

I have been cautioned by Constable Cousins that it is her
duty to warn me. I am not obliged to say anything but that anything I say may
be given in evidence. I understand the meaning of the foregoing and state as
follows

[60]

Moreover, while the practice of recording an interview by audiotape or
videotape is the preferable procedure where that is available, the absence of
such a recording does not, by itself, render any statement made by the accused
inadmissible. As was noted in
Oickle
:

[46]       This is not to suggest
that non-recorded interrogations are inherently suspect; it is simply to make
the obvious point that when a recording is made, it can greatly assist the
trier of fact in assessing the confession.

[61]

Similarly, this Court has stated that while it is recommended, if not highly
desirable, for an interview or interrogation of a suspect to be
contemporaneously recorded, it is not a legal requirement or a condition
precedent to a finding of voluntariness. In short, the failure or inability to
record a statement will go to its weight, not its admissibility. See
R. v.
Quinn,
2009 BCCA 267 at para. 96;
R. v. Narwal,
2009 BCCA 410
at para. 37; and
R. v. Tan,
2014 BCCA 9 at para. 104.

[62]

On appeal, D.N. also raises new allegations, including that of police
impropriety in the manner in which the police conducted themselves during their
interview of him, and police trickery in the manner in which they interviewed
him. He alleges that Cst. Gosselin did in fact have a tape recorder in his
possession that he chose not to use. There is no evidentiary foundation to
support these allegations. D.N
.
did not testify in the
voir dire,
he
did not cross-examine the police witnesses on these allegations, and the judge accepted
their evidence. In short, D.N. simply seeks to re-litigate the submissions he
made before the judge while inviting us to make different findings of fact. Absent
a material error, which D.N. has not demonstrated, the judges findings of fact
must be accorded deference on appeal:
Oickle
at para. 71;
R. v.
Spencer,
2007 SCC 11 at para. 17. Accordingly, I find no merit in this
ground of appeal.

[63]

In the trial proper, D.N. did testify. He alleged that both Csts. Cousins
and Gosselin tampered with the statements each had recorded. However, he
tendered no evidence in support of these allegations and did not cross-examine either
of the officers on them. In accordance with the rule in
Browne v. Dunn
, the
judge gave no weight to his allegations and, in any event, rejected D.N.s
evidence overall as lacking any credibility. I find no merit to this ground of
appeal.

G.      Misapprehension of Evidence

[64]

D.N. submits the judge misapprehended the evidence in two critical
areas. First, he says the judge erred in finding that P.S., on
cross-examination, recalled mutual genital fondling between her and D.N. D.N.
contends that the record does not support that finding. He says the judge took that
information from Crown materials tendered to explain the 1990 stay decision,
which were not admitted for the truth of their content. Second, he submits the
judge erred in accepting P.S.s evidence that D.N. frequently spied on her in
various ways. He argues that the judge accepted her evidence uncritically
while rejecting his evidence.

[65]

The classic statement of the test for misapprehension of evidence may be
found in
R. v. Lohrer,
2004 SCC 80 at para. 2: the misapprehension
must go to the substance rather than the detail; it must be material rather
than peripheral to the judges reasoning; and it must play an essential part in
the reasoning process for a conviction. See also
R. v. Swales,
2014 BCCA
350, where this Court stated:

[49]      It is not enough for
the appellant to merely suggest a different interpretation of the evidence, or
merely point to some evidence which arguable weighs against the trial judges
finding. Mere differences in interpretation on factual matters are not
misapprehensions of evidence but simple disagreements with the judges
differing view of the evidence.

[66]

In sum, the test for overturning a verdict based on a misapprehension of
the evidence is a stringent one. The scope of appellate review of factual
findings and factual inferences is limited to demonstrating that such findings were
clearly wrong, unsupported by the evidence, or otherwise unreasonable:
R. v.
Clark,
2005 SCC 2 at para. 9. I find no merit in this submission.

Evidence on P.S.s cross-examination

[67]

There was a clear evidentiary basis for the judges finding that D.N.
had sexually assaulted P.S. through mutual fondling at his demand. P.S. had not
recalled this evidence in direct examination. However, a question on cross-examination
triggered a strong emotional response with her recollection of this allegation,
which she had not previously remembered. This is evident in the following extract
from her cross-examination:

Q         Okay.
Do you recall telling them that he would then have you lie on top of him,
fondle his penis as he fondled your genital area.

A          That
happened. That really did happen, and I totally forgot about that. I dont
remember what I told those people. But I did not lie to them; I was telling the
truth. Im not a liar. Im not here for my own personal gain. I just want the
truth to be out. This is so terrible.

Q         Do you
need a moment?

A          No.

MR. SHORE:  My
Lord, obviously if she needs a moment, Im --

A          I
dont want a moment. I just want to get this over with.

THE COURT:  Lets press ahead.

[68]

The judge accepted P.S.s evidence in its entirety, finding her a
credible and reliable witness. He accepted this evidence, which provided a clear
evidentiary basis for finding that D.N. had engaged in this activity with P.S.

Spying on P.S.

[69]

The judge further found that D.N. had spied on P.S. when she was in her
bedroom and in the bathroom. P.S. testified that she caught D.N. red-handed on
several occasions, peering through the crack in her bedroom door jam, lying on
the far side of her bed in her bedroom, hiding in her closet, looking through
the bathroom window at her from the roof of the house, and inside the bathroom
when she got out of the shower. She testified to discovering peepholes in the
bathroom floor, since patched up, from which the occupant could be seen from
the furnace room below, and of catching him in the act of spying through those
holes when a friend of hers was using the bathroom. She also testified about finding
holes in her bedroom floor through which she said D.N. spied on her from the
garage below.

[70]

Photographic evidence of the patched-up holes in the furnace room was
admitted into evidence. In addition, the current owner of the house testified
to patching the holes and to the condition of the bedroom door frame when she moved
in. Both pieces of evidence provided some corroboration of P.S.s evidence.

[71]

D.N. submits the judge misapprehended the evidence on this issue because:
(1) he considered P.S.s evidence uncritically; (2) there was no
expert evidence to establish that she could have been observed in the
bathroom through the holes in the floor; and (3) there was no corroborative
evidence of holes in her bedroom floor.

[72]

Again, D.N. simply re-litigates his submissions before the judge. He
takes issue with details in P.S.s evidence about the size of the holes, their
sight lines, where she saw D.N. standing, the content of the excuses he made
when she caught him in the act, and other details of this nature. However, these
engage challenges to the factual findings of the trial judge, which in
accepting P.S.s evidence, were open to him to make.

[73]

In sum, D.N. is unable to identify any material error in the judges
treatment of the evidence that could be said to have played an essential role
in his reasoning process for conviction. D.N.s submissions amount to little
more than a disagreement with the judges assessment of the evidence and the
weight that he gave to it. This was a trial in which the central issue was the
credibility of P.S. and D.N. The judge found P.S. was credible and accepted her
evidence; he found that D.N. was not credible and rejected his evidence.

H.       The Evidence of Sexual Abuse in Switzerland

[74]

D.N. submits the judge erred in admitting highly prejudicial evidence
from P.S. that D.N. continued to sexually assault her when they lived in
Switzerland. He contends that this evidence was not material to the charges in
the indictment, that it coloured the entirety of the evidence upon which the
judge convicted him, and therefore this Court should order a new trial. I cannot
agree.

[75]

No objection was taken to this evidence at trial, which was admitted to
provide context of D.N. and P.S.s relationship, and to further the Crowns
case regarding D.N. viewing P.S. in a sexual way as a child. The evidence was also
relevant to demonstrate D.N.s ongoing sexual interest in P.S., from before
leaving for Switzerland to after their return to Canada. In my opinion, this
evidence was admissible on the basis that its probative value, in that it
related to the same misconduct, with the same victim, during the same
relationship as alleged in all three counts of the indictment, clearly
outweighed any prejudicial effect. I find no error in the admission of this
evidence.

I.        Disposition

[76]

In the result, I would dismiss the appeal.

The
Honourable Madam Justice D. Smith

I AGREE:

The Honourable Mr. Justice Willcock

I AGREE:

The Honourable Mr. Justice
Goepel


