



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    that could identify the complainant or a witness shall not be published in any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, 172,
    172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 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;
    2005, c. 43, s. 8(3)(b).

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. K.E., 2013 ONCA 175

DATE: 20130322

DOCKET: C54296

Doherty, MacPherson and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

K. E.

Appellant

Bradley Pearson, for the appellant

Karen Shai, for the respondent

Heard: March 15, 2013

On appeal from the conviction entered by Justice P. Kane
    of the Superior Court of Justice, sitting with a jury, on March 3, 2011 and the
    sentence imposed by Justice Kane on September 9, 2011.

BY THE COURT:

[1]

The appellant seeks to set aside his conviction by a jury of sexual
    assault on the ground that he was not tried in a reasonable time as required by
    s. 11(b) of the
Charter
.  He also seeks leave to appeal from the trial
    judges order that he pay a victim surcharge of $4,000.

THE CONVICTION APPEAL

The Background

[2]

The offence of which the appellant was convicted is alleged to have
    taken place in the early morning of July 15, 2007 in the basement of the appellants
    home at CFB Petawawa. The appellant was then a member of the Canadian Forces.
    The complainant was a civilian, a long-time friend of the appellants partner
    and of the appellant.

[3]

The complainant reported her allegations to military authorities the
    next day and military police commenced an investigation. In accordance with the
    procedure followed in the military, the appellant was arrested, but not charged
    with an offence, on July 24, 2007. He was released on condition that he remain
    in Canada under military authority and not communicate with or be within 500
    meters of the complaint. He continued to perform his duties with the Canadian
    Forces.

[4]

On April 10, 2008, after the military investigation had been completed
    and reviewed by the military prosecution authorities, the appellant was served
    with a Record of Disciplinary Proceedings (RDP), the charging document in
    military prosecutions. About two weeks later, a decision of the Court Martial
    Appeal Court effectively shut down the then existing system of military
    prosecutions.

[5]

The Regional Military Prosecutor met with the local Crown Attorney about
    the appellants case and others. The Crown Attorney agreed to assume
    responsibility for the appellants prosecution in the civilian justice system.

[6]

On November 6, 2008 an information was laid against the appellant
    charging him with the sexual assault of which he was ultimately convicted.

The Committal for Trial

[7]

On July 9, 2009, about eight months after he was charged with the
    offence in proceedings instituted in the civilian justice system, the appellant
    was ordered to stand trial at the conclusion of the preliminary inquiry.

The Proceedings in the Superior Court

[8]

The appellant appeared in an Assignment Court in the Superior Court of
    Justice on September 14, 2009. A pre-trial conference was scheduled for October
    7, 2009. For reasons that are not material, the pre-trial conference was
    rescheduled for December 10, 2009.

[9]

On January 11, 2010, the appellant appeared in another Assignment Court
    in the Superior Court of Justice to set a date for trial. His [then] counsel
    advised the presiding judge that he had several pre-trial motions, including an
    application to stay proceedings under s. 11(b) of the
Charter
. Counsel
    told the presiding judge that he (counsel) was not available to argue the
    motions, which he estimated would take three days, until October, 2010. He
    sought a trial date of December 6, 2010, nearly 11 months after the  Assignment
    Court.

[10]

The
    judge presiding in the Assignment Court refused to schedule the pre-trial
    motions and trial as proposed by the appellants [then] counsel. The appellant
    was required to get new counsel, another lawyer in the same office, and August
    3, 2010 was fixed as the date for trial.

The New Trial Date

[11]

Towards
    the end of July 2010, the Crown Attorney learned that no jury panel had been
    summoned for the week of August 3, when the appellants trial was to take
    place. The Crown Attorney notified counsel for the appellant and offered his (the
    Crown Attorneys) consent to a re-election of trial before a judge sitting without
    a jury. The appellant declined the offer.

[12]

On
    August 3, 2010, trial dates were offered to the appellant beginning in late
    September, 2010 and continuing throughout the fall and into the winter.  Except
    for one week in December when the Crown Attorney was not available, defence
    counsel was not available until February 28, 2011. The presiding judge fixed
    February 28, 2011 as the date for trial. The jury returned their verdict on
    March 3, 2011.

The Sentencing Proceedings

[13]

To
    permit preparation of a pre-sentence report in New Brunswick where the
    appellant was then living, sentencing proceedings were adjourned to June 29,
    2011.

[14]

The
    pre-sentence reported was received on June 29, 2011, but the sentencing did not
    proceed on that date because the trial judge was unavailable.  He was in
    another jurisdiction awaiting the verdict of a deliberating jury.

[15]

The
    trial judge imposed sentence, including a $4,000 victim surcharge on September
    9, 2011.

THE GROUNDS OF APPEAL

[16]

On
    his appeal from conviction, the appellant contends that the judge who heard the
    two s. 11(b) motions in advance of trial (the motion judge) erred by

i.        mischaracterizing
    the delay prior to April 10, 2008;

ii.       mischaracterizing
    the delay after August 3, 2010, the first trial   date; and

iii.      failing
    to enter a stay of proceedings even if he had properly      characterized the
    periods of and responsibility for the delay.

The appellant also contends that the additional delay
    caused by the time that elapsed in concluding sentencing proceedings breached
    ss. 7 and 11(b) of the
Charter
.

[17]

We
    would not give effect to any of the alleged errors in connection with
    s. 11(b) of the
Charter
.

DISCUSSION

The Delay Prior to April 10, 2008

[18]

The
    appellant submits that the motion judge erred in law in determining that the
    starting date for the purpose of the delay analysis under s. 11(b) was April
    10, 2008, the day he was served with the RDP, the charging document in the
    military prosecution. The appellant says that the starting date for s. 11(b)
    purposes should have been either

i.        the
    date of his arrest without charge and release subject to        conditions,
    July 24, 2007; or

ii.       at
    the latest, the date upon which DNA results were received     by the
    authorities, January 30, 2008.

[19]

We
    disagree.

[20]

It
    is well-settled that a person is charged with an offence within s. 11, thus
    s. 11(b) of the
Charter
, when an information is sworn alleging an
    offence against him or her:
R. v. Kalanj
, [1989] 1 S.C.R. 1594, at p.
    1607. Time reckoning for the purposes of claims of infringement of the right to
    be tried within a reasonable time commences with the laying of the information
    and continues until the completion of the trial.

[21]

The
    motion judges assessment of the appellants claim under s. 11(b) proceeds from
    the starting date of April 10, 2008, the day upon which the appellant was
    charged with an offence in the system of military justice then in force. It
    may well be open to question whether the commencement date should have been
    nearly seven months later, on November 6, 2008, when the appellant was charged
    with the offence in the civilian courts before which he was ultimately tried. 
    But that issue we leave for another day.

[22]

To
    the extent that the appellant invites us to consider pre-charge delay as
    relevant to the s. 11(b) analysis, we decline to do so.  Pre-charge delay is
    not counted in determining the length of the delay for the purposes of the
    analysis under s. 11(b).  The reason is simple: prior to charge, an accused has
    not been charged with an offence as required by the opening words of s. 11 of
    the
Charter
:
Kalanj
, at p. 1610. But in some circumstances,
    pre-charge delay may have an influence on the overall determination of whether
    post-charge delay is unreasonable:
R. v. Morin
, [1992] 1 S.C.R. 771,
    at p. 789.

[23]

We
    are not persuaded that this is one of those cases in which the period preceding
    the laying of the charge, whichever date is appropriate for the s. 11(b) analysis,
    has any influence on the overall determination of whether the post-charge delay
    was unreasonable. Pre-charge delay did not infringe the appellants right to
    security of the person, or his liberty interest, or compromise his right to
    make full answer and defence.

The Post August 3, 2010 Delay

[24]

The
    appellant also contends that the motion judge erred in his characterization of
    the period following the first trial date of August 3, 2010 in his s. 11(b)
    analysis.

[25]

Again,
    we disagree.

[26]

When
    the Crown Attorney learned in late July, 2010 that no jury panel had been
    summoned for the appellants trial to begin on August 3, 2010, he immediately notified
    counsel for the appellant. The Crown Attorney offered to consent to a
    re-election to trial by a judge sitting without a jury but the appellant, as
    was his undoubted right, declined to re-elect his mode of trial.

[27]

The
    appellant was offered trial dates beginning in late September, 2010, a matter
    of weeks after the first scheduled trial date. Apart from one week in December
    when the Crown Attorney was not available, counsel for the appellant was not
    available until late February, 2011. The motion judge did not consider that the
    entire seven-month period between the trial dates should be characterized as
    institutional or Crown delay, but he did not assign specific periods to the
    various participants.

[28]

In
    our view, the motion judges approach to this time period did not cause any
    prejudice to the appellant. While defence counsel is not expected to hold him
    or herself in a state of perpetual readiness after a trial does not proceed on
    a scheduled date, on any reasonable view, a significant period of time between
    trial dates was rightly assigned to neutral delay.

The Delay in Sentencing

[29]

The
    appellant also argues that the delay in completing sentencing proceedings, in
    particular, the delay between the original and actual sentencing dates, should
    be counted in the total period of delay and result in a stay of proceedings.

[30]

We
    do not agree.

[31]

On
    the date fixed for sentencing, the trial judge was unavailable because, as a
    member of an itinerant court, he was sitting in another jurisdiction awaiting
    the verdict of a jury. As this court noted in another context in
R. v.
    Meisner
, [2004] O.J. No. 3802, at para. 3, things happen from time to time
    in the criminal justice system for which no one can be faulted and which
    inevitably require an adjournment. Inherent in the process is that time is
    required to reschedule the adjourned proceedings. That happened here. The accommodation
    was reasonable, the delay neutral for the purposes of the s. 11(b) assessment.

[32]

In
    the result, the appeal from conviction is dismissed.

THE SENTENCE APPEAL

[33]

The
    appellant also alleges error in the imposition of a victim surcharge of $4,000
    as part of the sentence imposed upon him. The respondent takes the position
    that a reduction in the amount of the victim surcharge would not be contrary to
    the interests of justice.

[34]

The
    obligation to impose a victim surcharge on a convicted offender, except where the
    offender establishes undue hardship to him or her or his or her dependants, is
    created by s. 737(1) of the
Criminal Code
. The general rule about
    quantum, in circumstances such as these, is that the amount of the victim
    surcharge is to be $100. This amount may be increased where an increase is
    appropriate in the circumstances and the offender is able to pay a higher
    amount.

[35]

After
    the trial judge had imposed sentence, including ancillary DNA collection and
    SOIRA orders, the court clerk asked whether a victim fine surcharge was being
    imposed. During the brief discussion that followed, the trial Crown (not Ms.
    Shai) suggested that the surcharge should be fixed in an amount towards the
    upper end of a range of $1,000 to $5,000.

[36]

On
    appeal, Crown counsel takes the position that a reduction in the amount of the
    victim surcharge would not be contrary to the interests of justice.  We agree.
    The trial record reveals no basis upon which the trial judge could conclude
    that such a departure from the statutory minimum victim surcharge was
    appropriate in the circumstances of this case. Nor was any meaningful inquiry
    conducted about the ability of the appellant to pay the amount of victim
    surcharge that was imposed.

[37]

In
    the result, we grant leave to appeal sentence and allow the appeal from
    sentence to the extent of reducing the victim surcharge from $4,000 to $100 in
    accordance with the provisions of s. 737(2)(b)(ii) of the
Criminal Code
.

Released: March 22, 2013 DD

Doherty
    J.A.

J.
    C. MacPherson J.A.

David
    Watt J.A.


