R V. Leduc, 2004 (Justice T. Platana grants Jacques Leduc a stay)

[  Note from Sylvia:  Please note that, contrary to various statements of judges and lawyers Perry Dunlop had no contact with the victim’s mother other than the benign contact whereby she, a distraught mother, called Perry and he told her to contact police, and some time later when Perry called to ask how she and her son were doing.  That was the extent of the contact.  As for Carson Chisholm.  Carson was not in contact with the mother or her son about Jacques Leduc and the abuse prior to trial.  I was at the trial.  Carson and I met and talked to the mother after the trial.  Carson did not know that mother personally prior to that.   I talked to the mother at length and on a number of occasions after the trial.  That is the truth. ]

R. v. Leduc, 2004 CanLII 66307 (ON SC)

Date: 2004-11-10
Docket: 99-719
Other citation: 191 CCC (3d) 245
Citation: R. v. Leduc, 2004 CanLII 66307 (ON SC), <https://canlii.ca/t/232fk> retrieved on 2015-01-27
  • Cited by 2 documents

Ontario Superior Court of Justice

  1. v. Leduc

Date: 2004-11-10

Marie Henein and Heather Pringle, for accused, applicant.

Lidia Narozniak and Christine Tier, for the Crown, respondent.

Court File No. 99-719

[1]               Platana J.:―On October 18, 2004, I delivered oral reasons and indicated to counsel that I would then release written reasons which follow.

[2]               The applicant Jacques Leduc seeks an order staying the proceedings against him on the basis that he has not been tried within a reasonable time constituting a breach of his rights pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms.

[3]               He faces eight counts of sexual abuse alleged to have been committed on three different male complainants.

Procedural History

[4]               He was charged with the first of these offences against two of the complainants on June 22, 1998. He proceeded through a preliminary, was committed for trial, and a first trial in Superior Court commenced January 15, 2001. After approximately two weeks of trial, as a result of disclosure problems and material which did not come to light until the time of that trial, the trial judge found himself in a position of conflict, and referred a defence motion for stay to another judge. That application, based on wilful non-disclosure by the Crown, was granted [84 C.R.R. (2d) 200].

[5]               The Crown appealed to the Court of Appeal, which heard the appeal on October 24th, and 25th, 2002. In July 2003, the Court of Appeal released its decision overturning the stay and ordering that a new trial be held and that such trial be expedited [2003 CanLII 52161 (ON CA), 176 C.C.C. (3d) 321].

[6]               The applicant applied for leave to appeal to the Supreme Court of Canada, which was dismissed in January 2004 [179 C.C.C. (3d) vi].

[7]               In February of 2004, this matter was fixed to commence by way of pretrial motions in June and a trial date of October 4th was fixed.

[8]               Prior to this application, I heard an application for disclosure relating to Perry Dunlop and Carson Chisholm, two Crown witnesses. Following approximately four days of evidence I made an order for further disclosure against both as it appeared from their evidence on that application that there may well be further materials, which had not yet been disclosed.

[9]               The materials before me in this application include the Application Record, an Agreed Statement of Facts filed as exhibit one, an Affidavit of Phillip Campbell filed as exhibit two, and the evidence of Dunlop and Chisholm taken before me on the earlier application for disclosure.

[10]           The respondent in its factum, and at the hearing of this application, agreed with the facts as set out by the Appellant in his factum.


[11]           The applicant submits that a delay of over six years in respect of allegations of sexual assault involving three complainants is inordinate, excessive, and contrary to the right to be tried within a reasonable time pursuant to s. 11(b) of the Charter. It is the applicant’s position that these are not complicated charges, and that throughout the proceedings the applicant has repeatedly asserted his right to be charged expeditiously and has proactively done everything in order to ensure that he is tried within a reasonable time.

[12]           The applicant’s position is that his efforts to be tried within a reasonable time have been repeatedly frustrated by non-disclosure, institutional delays, and the obstructive actions of a former police officer Perry Dunlop who, from 1998 to July of 2000 was an officer with the Cornwall police.

[13]           Counsel argues that from June 1998 when the charges were laid, and up to the present, disclosure continues on an ongoing basis, and still may be outstanding. Counsel’s position is that the applicant has suffered enormous prejudice by this delay and has been devastated both emotionally and financially.

[14]           It is agreed that the charges against this applicant have gained a great deal of community attention. Much of that attention is as a result of information generated through the media source to Perry Dunlop and others. The applicant’s position is that regardless of the community attention, the delay in this case can only be assessed and compared to the delay of any other individual who is charged with sexual offences in respect of three complainants. The delay, counsel argues, must be assessed solely in that context.

[15]           The respondent Crown agrees that the delay is such that an inquiry is warranted. The Crown’s position is that the applicant has waived any delay by not advancing the argument until now and is now precluded from doing so.

General Principles

[16]           In R. v. Morin1 Sopinka J. outlined the purpose of s. 11(b) as follows [p. 12]:

The primary purpose of s. 11(b) is the protection of the individual rights of accused. A secondary interest of society as a whole has, however, been recognized by this court …

The individual rights which the section seeks to protect are: (1) the right to security of the person; (2) the right to liberty, and (3) the right to a fair trial.

The right to security of a person is protected in s. 11(b) by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh.

The secondary societal interest is most obvious when it parallels that of the accused. Society as a whole has an interest in seeing that the least fortune of its citizens who are accused of crimes are treated humanely and fairly.

[17]           The Court in Morin further noticed that the general approach to a determination as to whether the right has been denied is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of the delay.

[18]           The proper approach to an application such as this is that set forth in R. v. Morin. Factors to be considered in dealing with pretrial delay are:

  1. Length of delay.
  2. The waiver of time periods.
  3. The reasons for the delay including,
  4. a) inherent time requirements of the case;
  5. b) actions of the accused;
  6. c) actions of the Crown;
  7. d) limits on institutional resources, and
  8. e) other reasons for delay and
  9. Prejudice to the accused.

[19]           The judicial process referred to as balancing requires an examination of the length of the delay and its evaluation in light of the other factors. A judicial determination is then made as to whether the period of delay is unreasonable.

Applicant’s Position

[20]           In summary, Ms. Henein argues that in both R. v. Askov2 and R. v. Morin the Supreme Court of Canada held that sixteen to twenty months is a reasonable time period of delay between the laying of a charge and the trial in Superior Court. In particular, the following guidelines were articulated:

  • 10 to 12 months from charge to preliminary hearing;
  • 6 to 8 months after committal to trial;
  • an accused should therefore be brought to trial 16 to 20 months after he or she is charged.

[21]           Counsel summarizes that due to persistent non-disclosure, a delay of 64 to 70 months in this case is directly attributable to the respondent. More particularly Ms. Henein argues the following time frame:

  • 17 months from charge to preliminary inquiry (first preliminary hearing adjourned due to Crown non-disclosure);
  • 17 months from committal to stay of proceedings (first trial agreed by parties to be inevitable mistrial due to respondent’s failure to disclose Dunlop will state and notes prior to trial commencing);
  • 16 months for the respondent to disclose nine additional boxes of Dunlop material:
  • the respondent conceded that it would take 8 to 12 months for the review of nine boxes, preparation and conduct of pretrial disclosure motions relating to Dunlop;
  • 8 months for Court of Appeal to release judgment;
  • it has therefore taken between 64 to 70 months, or between five years, four months and five years, eight months, to bring the applicant to trial.

[22]           Further in summary, Ms. Henein argues that over and above the length of delay, the accused has never waived any time periods. She attributes reasons for the delay virtually entirely to the actions of the Crown in either non-disclosure, or delay of disclosure. She argues that the actions of the accused throughout can only be characterized as seeking an earliest possible trial date.

[23]           Finally, she argues that in the overall balancing of factors which must be taken into account in determining any application pursuant to s. 11(b), there has been extreme prejudice to the accused as demonstrated by not only the inherent length of time, but also the personal prejudice he has suffered as noted in his affidavit filed.

Respondent’s Position

[24]           The respondent’s position may be summarized as follows:

  • It is agreed that the total period of six years between the laying of charges and the second trial date is beyond the administrative guidelines and warrants judicial scrutiny.
  • Much of the delay in reaching the first trial can be laid at the feet of the Crown.
  • The connection of Perry Dunlop to this case was disclosable and significant.
  • The mid-trial disclosure of the “Dunlop connection” would inevitably have caused further delay.

[25]           However, the respondent argues that all of that information was known to the defence at the first trial. Ms. Narozniak argues that the law imposes an obligation to advance an 11(b) argument at trial and that failure to do so amounts to waiver and forecloses the applicant from advancing this argument now.


[26]           Because any application of this nature is fact driven it is necessary for me to set out in significant detail the timeline of these proceedings. The respondent accepts the facts as set out in the applicant’s factum.

[27]           In addition to the application record, the applicant relied on the evidence of Perry Dunlop and Carson Chisholm given during the voir dire. The extensive factual record before me was not before the learned trial judge in the first trial or the Court of Appeal.

[28]           On June 22, 1998, the applicant was arrested and charged with sexual assault (2 counts), sexual exploitation (2 counts), sexual interference (1 count) and invitation to sexual touching (1 count) contrary to the Criminal Code. All of charges related to two complainants, C.M. and S.P. There were no allegations involving what was to become a third complainant, S.L. The first court appearance was scheduled for July 20, 1998.

[29]           The applicant was released from the station on June 22, 1998 on a Promise to Appear and an Undertaking to a Justice of the Peace.

[30]           The applicant’s arrest immediately became the subject of intense media and community attention. The unrelenting attention to the applicant’s case which was to include vandalism of his home and office was to continue for the next six years to the present day.

[31]           Immediately subsequent to his arrest and throughout the proceedings, the applicant diligently and proactively sought to move the case forward and to obtain disclosure. On June 23, 1998, 1 day after the charges were laid, Mr. Edelson, counsel for the applicant, contacted the Office of Special Prosecutions by telephone in order to immediately obtain disclosure in respect of the applicant.

[32]           On June 24, 1998, 2 days after the arrest, counsel for the applicant wrote to the respondent to request disclosure be provided as expeditiously as possible. The letter was a detailed request for disclosure. At the outset of the letter, Mr. Edelson explicitly asserted the applicant’s right to a speedy trial as follows:

Please be advised that we are counsel in the matter as set out below. I would ask that you provide us with full and complete disclosure in advance of the next court date to ensure the matter proceeds without unreasonable delay and to enable my client to make full answer and defense to the said charges.

[33]           On June 25, 1998, counsel for the applicant wrote again to the Crown requesting disclosure. He placed the Crown on notice that a less than diligent approach to their disclosure obligations would aggravate the prejudice already being suffered by the applicant. The applicant immediately asserted his s. 11(b) right to be tried within a reasonable time as follows:

As you can imagine, my client wants this matter moved through the Courts with the greatest of haste so that the obvious prejudice he will suffer in the community in Cornwall will be minimized to the best degree possible.

[34]           On July 7, 1998, Mr. Edelson wrote to the assigned Crown yet again and requested disclosure as follows:

As I noted in my correspondence to Mr. Rupic dated June 25, 1998, I am anxious to receive disclosure immediately as my client wants this matter moved through the Courts with the greatest of haste so that the obvious prejudice he is suffering in the community in Cornwall will be minimized to the best degree possible.

[35]           On July 15, 1998, Mr. Edelson contacted the assigned Crown, Ms. Shelley Hallett, by telephone and once again requested disclosure.

[36]           On July 17, 1998, only partial disclosure was provided to the applicant. Significant disclosure remained outstanding including the complainants’ videotaped statements. The Crown refused to disclose either of the complainants’ videotaped statements because the Crown wanted an opportunity to review them before providing the disclosure to the defence. The Crown indicated that she anticipated completing this task by July 23, 1998. In fact, the videotaped statements were not disclosed until four months later after October 27, 1998.

[37]           On July 17, 1998, a different information was sworn which now alleged sexual assault (4 counts), sexual exploitation (4 counts), obtaining sexual services for consideration (2 counts), sexual interference (1 count), and invitation to sexual touching (1 count). The two complainants remained the same.

[38]           The applicant’s first court appearance on this new information was July 20, 1998, and he attended having arranged representation by counsel. The applicant’s matter was adjourned to August 10, 1998 “pending production of further disclosure in this matter”. In discussing whether there could be a ban on the applicant’s name, counsel for the applicant once again asserted the right to be tried expeditiously and stated as follows:

My client is not seeking a ban and is simply seeking to have this matter dealt with as quickly as possible.

[39]           Immediately after the applicant’s first court appearance the police began to gather new and significant disclosure. On July 28, 1998, the complainant CM. was re-interviewed on video by police. Disclosure of these videotaped interviews was not made until three months later on October 27, 1998.

[40]           On August 10, 1998, the applicant’s second court appearance, the two videotapes of CM., the one videotape of S.P., and one videotape of another individual all remained undisclosed. Transcripts had only been provided for two of the four videotaped interviews, leaving the applicant with no knowledge whatsoever as to the contents of the other two videotapes. Despite the outstanding disclosure, a judicial pretrial conference was scheduled for October 20, 1998.

[41]           Once again, the applicant proactively sought to move the disclosure process along. In order to ensure that the disclosure issues were resolved, an interim speak-to-date of September 14, 1998 was scheduled to monitor the status of disclosure. When the justice of the peace inquired as to why this unusual interim date was scheduled, the following interchange occurred between defence counsel and the justice of the peace:

The Court: Perhaps I could ask the question why �\ what is the need for the September 14th day?

The Defense: It’s a matter of whether or not full disclosure has been made and it will help move it along.

[42]           On September 14, 1998, the pretrial conference for October 20, 1998 was confirmed.

[43]           By the time of the judicial pretrial conference on October 20th 1998, over five months after the statements had been provided to the police, the outstanding videotaped interviews of the complainants had still not been disclosed to the defence. Although disclosure had been gathered by police during the summer of 1998, in October it remained undisclosed.

[44]           During the course of the October 20th judicial pretrial conference before the Honourable Mr. Justice Belanger, the Crown indicated that she still had not completed a review of the complainants’ videotapes although they had now been in the possession of the Crown for over three months. Pending the Crown’s completion of that task, which she had originally estimated to be completed by July 23, 1998, the Crown indicated that these items would be disclosed to the applicant.

[45]           Due to the defence’s ongoing concerns with disclosure, a continuing pretrial conference was scheduled for November 23, 1998 and an assignment court appearance was set for November 25, 1998.

[46]           In June and July of 1998, the police had repeatedly approached an individual named S.L. about his involvement with the complainant. On November 24, 1998, one day prior to the scheduling of the preliminary inquiry, the Crown personally attended at Mr. L.’s home with the police. Despite the fact that he had repeatedly denied that the applicant had engaged in any impropriety with him, on November 24, 1998, Mr. L. claimed for the first time that he had been sexually abused. He provided a videotaped statement to the police that very day. Up to the Crown’s attendance at Mr. L.’s home, no statement implicating the applicant in any crime had been made to the investigators.

[47]           On the next day, November 25, 1999, Crown counsel attended court and scheduled the applicant’s preliminary inquiry to begin on April 8, 1999. At no time prior to or during the November 25, 1998 court appearance did Crown counsel advise the applicant that new disclosure was forthcoming in relation to a new complainant, that additional charges would be laid, or that the Crown had further witnesses to call at the preliminary inquiry. This disclosure was not to be provided until some four months later just shortly before the scheduled preliminary inquiry.

[48]           On March 9, 1999, four months after this information came into the possession of the Crown and the police and approximately one month prior to the commencement of the applicant’s preliminary inquiry, the Crown advised the applicant for the first time that further charges would be laid and that a new volume of disclosure would later be disclosed. Further, the applicant was advised that the Crown intended to lay additional charges in relation to this new complainant.

[49]           Notwithstanding that disclosure relating to the new complainant S.L. had not yet been provided to the applicant, the Crown asserted in her letter of March 9, 1999 that she wished to proceed in respect of all three complainants at the preliminary hearing scheduled to proceed on April 8, 1999.

[50]           On March 9, 1999, shortly after receiving the Crown’s facsimile transmission disclosing the existence of Mr. L.’s statement, Mr. Edelson wrote Crown counsel to outline the detrimental impact of this untimely disclosure on the applicant’s ability to make full answer and defence. He stated:

I will not have an opportunity to speak to Mr. Leduc until March 10, 1999 at the earliest. I cannot tell you whether the proposed date for him to submit to processing is convenient for him at the present time, nor can I inform you whether it is even remotely conceivable that Mr. Leduc and I can prepare for the preliminary inquiry given the untimely nature of this disclosure.

[51]           On March 11, 1999, the applicant surrendered into custody on the new charges. A replacement Information was sworn to allege one additional count of sexual assault, two additional counts of sexual exploitation, and an additional count of obtaining sexual services for consideration. The four new charges all related to the third complainant, S.L.

[52]           On March 16, 1999, substantial and significant new disclosure was provided to the defence. At the time counsel for the applicant received this disclosure, the applicant’s preliminary inquiry was scheduled to begin in three weeks. The disclosure provided on March 16, 1999 included extensive material pertaining not only to the additional complainant but also to the other two complainants. Much of the material which was disclosed had been in the possession of the police and the Crown for a substantial period of time. To date, no reason has ever been provided to explain this delayed disclosure.

[53]           In particular, over the course of the following few months, several additional volumes of disclosure were provided to the defence. On March the 19th, 2000 legal-sized pages in one volume and 174 pages in a second. Included in that disclosure were 26 additional items pertaining to the complainant C.M. The disclosure materials provided on March the 16th of 1999 also included a number of items pertaining to the second complainant S.P. Six additional items pertaining to S.L. and another witness were disclosed on March the 16th of 1999. In addition on that date, the videotaped interview of Mr. L., which took place four months earlier, on November the 24th, 1998, was disclosed.

[54]           The Crown’s failure to disclose this highly relevant material in a timely fashion founded an adjournment of the applicant’s preliminary hearing. This adjournment application was brought because the defence preparation undertaken thus far was rendered effectively pointless by the significant change to the case. Additional time was required for both to review the vital new disclosure and respond to it properly.

[55]           The impact of having to seek an adjournment of his preliminary inquiry caused the applicant significant emotional prejudice. As he describes it:

As a lawyer, I understood Mr. Edelson’s perspective and why an adjournment of my preliminary inquiry was necessary to make full answer and defense. On a personal level, however, the necessity of adjourning my preliminary hearing absolutely devastated me. I had expected to go to trial in the fall of 1999 and to have that trial completed by the end of that same year. Instead, there was no end in sight for these allegations and the stigma and prejudice I have been experiencing in Cornwall.

[56]           On March 26, 1999, the applicant served Notice of Application for Adjournment, stating that “whether through inadvertence or by means of a deliberate tactical decision, this crucial delay in disclosure and the non-disclosure of significant additional material evidence, has rendered it impossible for the defense to properly assess its election of trial forum and completely prepared to meet the Crown’s case”. As of March 26, 1999, there remained a number of outstanding disclosure issues pertaining to the complainants and critical civilian witnesses.

[57]           On March 30, 1999, the Honourable Madam Justice Rastushny granted the adjournment application and remanded the applicant to April 13, 1999. During the course of the adjournment application, the applicant advised that yet another videotape and additional documentary disclosure had been provided to him on the very morning of the adjournment application.

[58]           Due to the ongoing problems with disclosure being made in a timely fashion, counsel for the applicant wrote to the Crown on April 1, 1999 to strongly remind the Crown of their ongoing disclosure obligations. In particular, the letter stated as follows:

  1. Please confirm to us that once disclosure requests have been complied with that the defense is in possession of all material that form the fruits of the investigation into this matter, whether the Crown intends to lead such evidence or not. Only in this way can further unreasonable delays in the progress of this case be avoided.

[59]           On April 9, 1999, yet another volume of disclosure was provided (with the applicant receiving it on or April 12, 1999).

[60]           Due to the steady stream of further disclosure, the applicant’s preliminary hearing could not yet be rescheduled. Upon receiving disclosure on April 21, 1999, the applicant again placed the respondent on notice that approaching the task of disclosure in such a tardy and indifferent manner was hampering the applicant’s fair trial rights. In addition, the applicant reiterated his wish to complete these proceedings as quickly as possible:

We have also further reached the consensus that in light of the disclosure requests and the inadequacy of the responses thereto, it is our view that we reserve our election with respect to these proceedings. This does not mean, however, that a date cannot be set so that this matter can move forward as my client urgently wants these proceedings to be completed as soon as possible. Thus we will be proposing to the Court tomorrow that a “hearing” date be set �c

[61]           On April 22, 1999, the preliminary hearing was rescheduled for November 25, 26, 29, 30, December 1, 2, and 3, 1999. As the applicant’s correspondence from the day before indicates, the new dates were set, despite continued issues with outstanding disclosure, in order to avoid any additional delay.

[62]           Although the applicant and the respondent had earlier dates available for the preliminary inquiry, but court space was unavailable until September 1, 1999. The respondent was able to conduct the preliminary hearing beginning in September, however, counsel for the applicant was unavailable. Due to a Judge’s Education Seminar coinciding with the applicant’s available time in October, the preliminary hearing was rescheduled to begin on November 26, 1999. With respect to the issue of delay, the applicant advised the Court that there was:

… certainly no waiver of 11(b). Our position throughout has been that the adjournment was necessitated by non-disclosure and untimely disclosure.

[63]           The preliminary inquiry proceeded on November 26, 1999. The applicant elected trial by judge and jury. At the conclusion of the preliminary inquiry, the applicant was committed to trial on thirteen of sixteen counts and discharged on three counts. The matter was adjourned for a first appearance and pretrial conference on February 16, 2000. The Court and Crown were available on December 15, 1999 and the applicant was available as of early January of 2000.

[64]           On February 16, 2000, a judicial pretrial conference was held before the Honourable Mr. Justice Desmarais. Although counsel for the applicant was ill, he participated in the pretrial by means of a teleconference call. The matter was adjourned on February 16, 2000, for a further judicial pretrial conference and to set a date for trial.

[65]           On the same day, February 16, 2000, the applicant appeared in Assignment Court without counsel who was ill. The respondent indicated that at the defence request, the matter would be adjourned to the next assignment court date. The purpose of the adjournment was to allow counsel to discuss with his client issues that had arisen in the judicial pretrial conference and also to determine issues relating to his own schedule.

[66]           On March 31, 2000, a trial date in Superior Court was scheduled for January 15, 2001. The court and Crown had September dates available but defence counsel was unavailable. Defence counsel had dates available in December of 2000 however, Crown counsel indicated a preference for starting the trial in January of 2001.

[67]           There is contained in the record before me a history of how, at that point in time, Mr. Leduc’s former counsel developed what was a potential conflict in his own scheduling which necessitated the ultimate decision made by Mr. Leduc to retain new counsel in order that he could be assured that his trial would proceed in January of 2001 as originally scheduled. It is acknowledged in the material before me that that step came accompanied by significant financial ramifications for Mr. Leduc. In order to retain new counsel to start preparation and this only seven weeks before trial, he was required to retain both senior and junior counsel to ensure that the January 15th trial date could be met.

[68]           Outstanding disclosure however continued to be an issue throughout the months of November 2000, December 2000 and into the New Year. In late October to November 2000, a fifth volume of disclosure was provided to the applicant. It was 145 pages and contained six witness interviews as well as police officers notes.

[69]           In early January, 2001, a seventh volume of disclosure was provided to the applicant. It contained the police notices of interviews with several witnesses. The notes of both officers contained the contents of these interviews, all of which were substantive in nature and which were not disclosed until approximately one month after they were taken. No explanation was provided by the respondent as to the reason for the delay in disclosure.

[70]           On January 15, 2001, trial proceedings began, as scheduled, in the Superior Court of Justice before the Honourable Mr. Justice McKinnon. In the afternoon of that same day, the respondent disclosed two further witness interviews. Despite every effort to ensure that disclosure was complete, the trial from the outset was plagued by an ongoing pattern of non-disclosure. On January 18, 2001, the applicant sent the respondent a letter to express their continued concern with respect to missing disclosure.

[71]           On January 26, 2001, as the result of evidence heard during cross-examination, the applicant again wrote the respondent to convey their concern that full disclosure had been provided to them:

We would also draw to your attention again the general disclosure request in our letter of January 15, 2001. This is of particular importance in light of the unexpected testimony of S.P. about his reaction to the threatening letter received on July 11, 1998. Where witnesses provide fresh explanations for contradictions in their prior accounts, or where they deviate from their most recent sworn testimony and revert to earlier accounts, it is important that we be advised of these developments.

[72]           Later that same day, January 26, 2001, a further letter was sent as a result of evidence heard during cross-examination.

[73]           By February 7, 2001, the significant portion of the Crown’s case pertaining to CM. and S.P. had been adduced. Between January 15, 2001 to February 7, 2001, the matter had proceeded before the trial judge for fourteen days. Over the course of four and one-half those days, the complainant C.M. gave evidence and during three days, the complainant S.P. had testified.

[74]           On February 7, B.M., the mother of C.M., was in the course of giving her testimony. The evidence she gave on that day fundamentally changed the nature of the applicant’s case. It was in fact not until the motion before me that the extent of the contact by Dunlop and Chisholm was discovered. It was only through cross-examination based on the nine boxes of disclosure that it was revealed that Mr. Dunlop had a pattern of taking detailed witness statements, that the contact with the Leduc complainants extended well beyond an innocuous telephone call with Mrs. M. and attendances at the matrimonial home through Carson Chisholm, and that there was contact with Mrs. P. through Carson Chisholm. There further was evidence of contact between the M.’s and the P.’s.

[75]           None of this information was before the trial judge or the Court of Appeal.

[76]           During cross-examination on February the 7, Mrs. M. testified that she had been in contact with and sought advice about Mr. Leduc from Mr. Dunlop. Prior to her testimony, Cst. Dunlop’s connection and involvement with Mr. Leduc’s case and in particular with complainants in the case was unknown to the defence; at least it was unknown in its entirely.

[77]           Constable Dunlop’s investigation into Project Truth matters was well-known by the time the applicant was charged. He began speaking to potential complainants and witnesses with the aid of his wife Helen and Carson Chisholm in 1993 when he concluded that there was a conspiracy in Cornwall to cover up certain allegations of sexual abuse. It is conceded that Mr. Dunlop’s involvement was well-known to the Crown as someone speaking with witnesses from the beginning of and throughout the proceedings against Mr. Leduc.

[78]           As a result of Mrs. M.’s unexpected testimony relating to Cst. Dunlop’s connection to a witness in the Leduc case, counsel for Mr. Leduc again wrote to the Crown to request disclosure of all materials relating to Cst. Dunlop. Subsequent to that, approximately 250 pages of Mr. Dunlop’s handwritten notes were produced, a 110-page will-say document and the results of an investigation into Mr. Dunlop had suborned perjury from a Project Truth complainant in order to enhance that witness’ financial recovery in a civil suit. The ultimate result of the information which came through Mrs. M.’s cross-examination is that on approximately February the 14th, an application for a stay of proceedings on the basis of wilful non-disclosure was brought. By February the 14th, when the stay application began, a substantial portion of the applicant’s case has been completed and, indeed, 17 Crown witnesses had already testified.

[79]           At the outset of the stay application on February the 14th, Crown counsel acknowledged that she had been in the possession of Mr. Dunlop’s notes and will-says, both of which explicitly referred to Cst. Dunlop’s contact with Mrs. M., since no later than April of 2000. The delayed disclosure of Cst. Dunlop’s involvement in the case led to the original trial judge having to recuse himself due to a conflict which he had experienced while he was in private practice. It is important to note that at the original stay application in February of 2001, it was the Crown’s position that in the event that a stay of proceedings was not granted, the trial judge could still not continue to preside over the trial proper. The Crown was of the view, as was defence, that a mistrial would have to have been granted as a result of Mr. Dunlop’s credibility and it had now become a relevant determination in the trial.

[80]           The Crown asserted that the failure to disclose Cst. Dunlop’s notes and will-say was inadvertent. Throughout these proceedings, including at the first trial, crown counsel had conceded that the Dunlop material was relevant and should have been disclosed. It is an admitted fact that the Dunlop material, including the nine boxes detailing his involvement with complainants, was relevant and was properly the subject of a disclosure obligation by the Crown.

[81]           The nine boxes were not disclosed to the applicant until June 26, 2002, during the course of the Crown appeal against the stay of proceedings. It is agreed, between the applicant and the respondent, that the relevance of Cst. Dunlop to the applicant’s case similarly renders the contents of these boxes to be the proper subject of disclosure.

[82]           The applicant’s position on this motion is that the time period following the stay, during which the Crown appeal took place, is properly characterized as delay which would inevitably have resulted from the non-disclosure.

[83]           The post-stay proceedings will be outlined only in brief:

  • on March 28, 2001, the respondent filed a Notice of Appeal against the stay of proceedings;
  • on September 17, 2001, Justice Chadwick ordered costs against the respondent, which then became on consent part of the appeal against stay;
  • on November 30, 2001, transcripts were served upon the applicant and filed with the Court of Appeal for Ontario;
  • on February 28, 2002, the respondent’s appeal was perfected;
  • on October 24 and 25, 2002, the appeal was argued in the Court of Appeal;
  • on July 24, 2003, the Court of Appeal overturned both the costs order and the stay of proceedings, ordering that an expedited new trial be held;
  • on January 12, 2004, the Supreme Court of Canada denied leave to appeal;
  • and on February 19, 2004, the applicant appeared in the Superior Court of Justice and scheduled pretrial motions for the summer of 2004 and the new trial to begin on October 4, 2004.

Pretrial Motions

[84]           In proceedings by way of pretrial motion for disclosure before me, Cst. Dunlop testified. Approximately one week was spent on hearing evidence from Mr. Dunlop and his brother-in-law Carson Chisholm. I agree with the position of the Crown as respondent in this matter that while the Dunlop connection is an important issue for trial because it may impact on the credibility of Crown witnesses, its relevance on this application is limited to the fact that delay would inevitably have resulted from the full exploration of this issue if that, indeed, had been undertaken in 2001.

[85]           Mr. Dunlop’s evidence during the four days on the motion for production before me should not be given any more emphasis than it deserves. The purpose of exploring his connection to this case is to uncover any contamination of witnesses and that, indeed, is an issue for the trier of fact. It is, therefore, not necessary for me in this application to detail the full involvement of Mr. Dunlop and Mr. Chisholm as evidenced in the pretrial matters before me. I repeat, none of the evidence given by them was available to the Court of Appeal during the hearing of the appeal from the stay. Furthermore, the Court of Appeal was dealing with an appeal from a stay of proceedings based on a different ground, that being wilful nondisclosure. The Court of Appeal decision dealt with delay only as noting that the judge hearing the stay application dealt with the issue when it had not been raised. That the decision on delay was based on no factual underpinning and no consideration of the principles of when a stay on the basis of delay should be granted.

[86]           What is of import to the issue of delay before me is that from very early on in his involvement, Mr. Dunlop projected himself, his wife and Mr. Chisholm into circumstances where numerous individuals, potential witnesses, were interviewed and/or tape-recorded. Extensive records were kept and those notes were the subject of ongoing problems with disclosure in a timely fashion. They are, as I’ve said, acknowledged by the Crown to be relevant to these charges and non-disclosure is acknowledged to have contributed to the delay in having these charges proceed. I will review only some of the facts which the respondent accepts as correct and which relate to a disclosure obligation which is now acknowledged to be relevant to the delay issue.

[87]           Mr. Dunlop became a police officer in 1983 and from July of 1997 to July of 2000, a period of time relevant to this case, Cst. Dunlop was on active duty. He began his involvement in sexual abuse allegations in 1993 and enlisted the aid of both his wife and Carson Chisholm. As a police officer, he testified in the pretrial motion, that he was well trained in keeping notes of an investigation and, indeed, did so on a constant basis. It is apparent also that between June of 1997 and January of 2000, the police repeatedly attempted to obtain compliance from Cst. Dunlop to give them his notes, videotapes and interviews. Indeed, on at least four occasions, he was given orders to provide the information in his possession to the police. That was not done and in his testimony before me, he acknowledged that he had not complied with those orders. It was on March 6th of 2000 that Cst. Dunlop finally disclosed his notebooks and personal notes regarding his investigation.

[88]           It is acknowledged and the evidence is clear that between 1993 and 2000 when he resigned, he was a police officer and his material, therefore, was the subject of disclosure obligations. A memo from Staff Sgt. Derochie in January of 2000, which Cst. Dunlop acknowledged receiving, clearly specified the extent of the disclosure obligations which Mr. Dunlop had in relation to the material in his possession. In particular, the evidence now discloses that notebooks which are particularly relevant to the proceedings against Mr. Leduc have, in some cases, never been produced in their original form. The evidence before me indicates that some of the material appears to be missing; some of it, on the basis of the evidence which I have heard, appears to be out of order. What the evidence does clearly establish is that Mr. Dunlop’s contact with the complainants, while originally thought of in incomplete material before the Court of Appeal as being innocuous, is far from benign and far from innocuous.

[89]           In addition, the information before me, as a result of the defence application for production, establishes a far more extensive relationship between Dunlop, Chisholm and the complainants in Mr. Leduc’s case than has previously been disclosed. The evidence of Mr. Chisholm, in particular, discloses for the first time repeated contacts with Mrs. M., the fact that he attended her home and, indeed, that he had contact with Mrs. P. on more than one occasion. The evidence before me now satisfies me that Mr. Chisholm has acted in close concert with and under the direction of Mr. Dunlop. The entire course of conduct of Dunlop and Chisholm was, in fact, in my view, properly and appropriately the subject matter of disclosure which should have been made. It is clear that if the evidentiary record that was before me had been available to the defence at trial or, indeed, to the Court of Appeal, that that would have had a significant aspect in terms of the evidence before those courts on any stay of proceedings.

[90]           The respondent acknowledges facts as constituting prejudice suffered by the applicant in this case, consistently over the course of six years. His affidavit describes how he has suffered prejudice in his small community, prejudice to his financial situation, prejudice in his practice of law, and a deep level of emotional prejudice. This extends not only to the impact upon the applicant, but also upon family members.

[91]           It is trite to say that there has been media interest in the applicant’s case. The media has been covering the applicant’s case for over six years. As the applicant advises, almost each time there is a court appearance, the local newspaper repeats the allegations against him as part of their coverage. There have been many court appearances over six years and the allegations have been repeated numerous times in the local and national media.

[92]           Over six years, the applicant has noted a ripple effect between media reports about his case and his law practice. Frequently, a newspaper article has been followed by a telephone call from a client or clients, asking for the return of their file.

[93]           Other media outlets, less professional in nature, have disseminated much more poisonous misinformation on the Internet. Although the applicant is yet to have his trial, the World Wide Web has already pronounced his guilt and declared him a pedophile.

[94]           Prior to the charges being laid back in 1998, the applicant was active in Cornwall society and took pride in devoting time to his community. He has withdrawn from his community activities, be they with his church, the schools, or political organizations. Indeed, his family has changed the parish they attend, and for six years the applicant has been avoiding approaching people in social situations for fear of causing them discomfort.

[95]           Prejudice has been reflected in six years of vandalism and harassment suffered by the applicant, his wife, their daughter, and his co-workers. The applicant received in his office mail an envelope containing a mysterious white powder, the intent of the sender being, quite apparently, to cause the applicant to fear he had been sent anthrax. In addition, subscriptions to an Ontario college where the programs deal with sexual deviance have arrived in the mail at the applicant’s office.

[96]           The Leduc family home has also been repeatedly vandalized over the course of six years. Lamps at the end of their driveway at home have been vandalized with “some serious violence”, as the investigating O.P.P. officer phrased it. On another occasion the Leducs’ mailbox and newspaper holding were also destroyed, with the mailbox appearing as though it had been pierced with a sharp object. Crank calls are received, both in the daytime when the applicant’s wife Josette is home alone, and in the middle of the night.

[97]           The applicant has been practising law in Cornwall, a community of 45,000 people, since 1978. His evidence is that since 1998 and during the resulting six years of delay, he has lost numerous clients as a result of these outstanding allegations. Each eruption of publicity has had a ripple effect in his law practice in that subsequent to a news article, clients will contact him to ask for their file back.

[98]           The professional and financial impact of losing part of an existing client base (not to mention prospective clients) over a six-year time frame is extensive. This issue has been exacerbated by the illness of his wife Josette and her inability to return to work full-time.

[99]           There are additional aspects of irreparable damage directly as a result of the delay. There have been two scheduled preliminary inquiries and two scheduled lengthy trials. On four occasions, the applicant has set aside significant blocks of time in his professional schedule in order to attend court and defend himself. Whenever a new client contacts the applicant to ask that he represent them during a time which conflicts with the time set aside for his own appearances in court, he has had to advise the potential client that due to his own charges, he cannot appear on their behalf for a substantial period of time.

[100]      Difficulties arose in his law firm partnership. Business decisions that are essential to the ordinary operation of a law practice had to be held in abeyance because, simply put, the firm could not plan for the future until he knew what outcome the criminal courts held for him.

[101]      The applicant has also had to incur extraordinary legal expenses, in defending himself during two trials as well as during the appeal process initiated by the Crown. Because the applicant is a practising attorney in a small town, being tried in that same town, he has had to retain out-of-town counsel to represent him. Bringing in out-of-town counsel, in turn, leads to additional expenses necessarily being incurred.

[102]      The necessity of paying legal fees has meant his wife’s cottage, which was owned free and clear prior to 1998, is now mortgaged. The substantial equity the applicant and his wife once enjoyed in their family home is now gone. He has had to borrow considerable amounts of money from his father and his father-in-law.

[103]      The applicant indicates that for trial representation alone, his legal fees are not covered by the various loans and mortgages, and thus his plans for his and his wife’s future will never be the same.

[104]      He describes the overall effect of his life as follows:

Before I was charged, I was at a stage in my life where I foresaw a debt-free future and working at a lesser pace, gradually over the years. In other words, I thought that by now I would be enjoying my life and reaping the fruits of my years invested in the practise of law and my wife’s as a teacher. Instead, I understand that during the rest of my life, I will never be able to work long enough to pay back the debt I have incurred as the result of legal bills. This is a sad legacy to leave my wife and daughter.

[105]      The applicant has in fact incurred significant additional legal expenses solely in order to avoid an adjournment of his January 15, 2001 trial date. Upon being advised of a conflict in his first trial schedule, and being presented with the options of retaining new counsel very shortly before his trial or seeking an adjournment, the applicant chose to retain new counsel and avoid delay.

[106]      The applicant states that since June 22, 1998, six years and three months ago, he has been suppressing incessant feelings of anger, fear, worry, resentment, and jealousy of individuals who lead normal lives. He has deliberately refrained from expressing any of these emotions, even to his wife of twenty-seven years, because he is afraid of the extent of these emotions and has had thoughts of suicide. He bears immense guilt in relation to his father, who passed away in October 2003 without knowing of any conclusion to the allegations.

[107]      That is a summary of the facts as contained in the application record and the affidavit of Mr. Leduc. In addition to that, without reviewing it in complete detail, also as part of the evidence relied upon is an agreed statement of facts, as I noted, filed as Exhibit Number One. I do not propose to review the facts as stated in that particular exhibit inasmuch as they are in essence virtually entirely canvassed by me to this point in time.

[108]      Secondly, the facts, the evidence in this matter consists of Exhibit Number Two which is an affidavit of Philip Campbell. That affidavit is relied upon to indicate that at the time the first trial proceeded, replacement counsel did not have a detailed appreciation of the procedural history of the prosecution and had no awareness of the pattern of non-disclosure. They indicate that if, indeed, the application for a stay of proceedings had failed, it would have necessarily meant a protracted delay in the case and there is no doubt that at that time they would have reviewed the record with a view to applying for a stay of proceedings under a s. 11(b) at the commencement of any new trial or the resumption of an adjourned trial.


[109]      In the light of the above facts, I turn to a consideration of the analysis as set out in Morin. McLachlin J. stated [p. 30]:

In my opinion, the task of a trial judge considering an application for a stay of charges may usefully be regarded as falling into two segments. The first step is to determine whether a prima facie or threshold case for unreasonable delay has been made out …

If this threshold or prima facie case is made out, the court must proceed to a closer consideration of the right of the accused to a trial within a reasonable time, and the question of whether it outweighs the conflicting interest of society in bringing a person charged with a criminal offence to trial.

Length of the Delay

[110]      I deal firstly with the length of the delay. The overall lapse of time for this case to reach the point of this trial is now in excess of six years. In Morin the Supreme Court established a guideline of 8-10 months for committal following preliminary and 6-8 months for trial in Superior Court. Although that is not a fixed period, it is clear in this case, and acknowledged by the respondent to be a delay such that it warrants judicial scrutiny.


[111]      The second factor is waiver. Ms. Henein submits that in this case the applicant at no time waived his right to be tried within a reasonable time. Her position is to the contrary that he actively sought disclosure at each state of the proceedings, including the appeal, and proactively attempted to be tried within a reasonable period of time.

[112]      It is the respondent’s position that Mr. Leduc has waived his rights to raise 11(b) and is effectively now precluded from advancing that argument at this stage. The Crown clearly acknowledges in both her factum and submission that the principle argument made by the Crown relies on the decision in R. v. Rabba3 where the Ontario Court of Appeal stated [p. 447]:

[F]ailure to move for a stay of proceedings, either before or at trial, would, in most cases, be fatal. The failure to move for a stay of proceedings would normally amount to a waiver of any claim which may arise under s. 11(b) of the Charter.

[113]      Ms. Narozniak recognizes that there may be exceptions to that general principle but argues that there is no reason for an exception to be made in this case. Her argument proceeds that the defence was aware of all the pretrial delay at the first trial, that they were aware of the “Dunlop connection”, and were aware of its significance and potential impact on the trial. The Crown submits that the 11(b) issue had crystallized.

[114]      The essential point argued by the Crown is that the defence made a choice at the first trial. They brought an application to stay based on wilful non-disclosure and misconduct of the Crown and chose not to bring an application for stay based on unreasonable delay. Crown submits that by the time the stay application was brought on February 21, 2001, the defence was aware of the pretrial delays caused by delayed disclosure on the part of the Crown, and with mid-trial disclosure of the “Dunlop connection”. By failing to raise the issue of delay over the course of the first trial and two appeals the applicant has now waived his 11(b) rights and it is in no position to advance this application now.

[115]      In order for the concept of waiver of the right to be tried within a reasonable time to be applied, an analysis must be conducted of whether the right has been expressly waived by the accused, or whether indeed the facts are so clear and unequivocal as to lead to a conclusion that the accused has implicitly waived the right. There is no suggestion by the Crown of any explicit waiver. The Crown relies on his actions as constituting an implicit waiver.

[116]      Any waiver must be clear and unequivocal with full knowledge of the rights the provision was enacted to protect and of the effect that the waiver will have on those rights. In R. v. Conway,4 Sopinka J. stated that he fully agreed with the comments of Lamer J. in Mills where he stated [p. 333]:

“The court, therefore, has a duty to ensure to its satisfaction that the waiver of time is clear, unequivocal, and informed as regards the right and the effect waiver will have on the right.

“Waiver cannot, therefore, be inferred from silence, whether the accused be represented or not, except in cases where delay is caused by an accused. It must be expressed and informed. Furthermore such waiver does not affect the right but merely excludes such time as is waived from the calculation of the reasonable time.”

[117]      Further in Conway, Sopinka J. noted [p. 333]:

Frequently, and this case is no exception, the Crown relies on waiver. An accused may have caused or consented to a period of delay such that he or she will be precluded from including that period of time in the alleged delay. This court held in Korponey v. A.-G. Can. (1982), 1982 CanLII 12 (SCC), 65 C.C.C. (2d) 65 at p. 14, 132 D.L.R. (3d) 354, [1982] 1 S.C.R. 41 sub nom. Korponey v. A.-G. Can. (S.C.C.), that the validity of any waiver “… is dependent upon it being clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver will have on those rights in the process. [Emphasis in original.]

[118]      Waiver only occurs if there is something in the conduct of the accused that is sufficient to give rise to an inference that the accused has understood that he had an 11(b) guarantee, understood its nature, and has waived the right by that guarantee. The onus to demonstrate waiver rests upon the Crown.

[119]      In R. v. Rabba, the grounds of appeal did not include any alleged violation of s. 11(b). The Court determined that failure to move for a stay would “in most cases” be fatal. Failure to move would “normally amount” to a waiver of any claim which may arise under s. 11(b).

[120]      The respondent also relies on R v. Bosley,5 where there was no argument at the first trial with respect to delay up to the completion of the trial. All of the delay complained of was post-conviction while awaiting sentence. Doherty J.A. noted that the Crown in that case relied upon R. v. Rabba where the Court earlier had noted that the failure to move for a stay of proceedings would normally amount to a waiver of any claim which arises under s. 11(b) of the Charter. After referring to Rabba Justice Doherty noted [para. 19]:

The soundness of the principle announced in Rabba is beyond dispute. Rabba was, however, a case (like most delay cases) where there was no impediment to the raising of the delay issue at trial. The delay related to the passage of time prior to trial. The delay was for a finite period and the relevant factors could be balanced by the trial judge …

In this case, the length of delay never fully crystallized until the proceedings were completed.

[121]      Justice Doherty then noted that Bosley was not a case where the Appellant sought to take a different position on appeal then was advanced at trial, or where he sought to create an issue where none existed at trial. It was evidence very early on in the proceedings that the Appellant took the position that his right to trial within a reasonable time had been infringed. He then determined that Bosley was “one of those unusual cases where this court should entertain a s. 11(b) argument even though a stay was not sought prior to the completion of the proceedings below” [para. 23].

[122]      In R. v. R.L.R.,6 all evidence with respect to the delay had been crystallized. The Court determined that there were no new factors which may have affected the delay. In the Leduc case, the respondent acknowledges that evidence produced subsequent to the trial was in fact relevant and was not produced prior to the first trial. In fact, it was produced only in the course of the stay application. The Crown further acknowledges that the time required to consider that new evidence was not known and appreciated at the time and is ultimately agreed to be a period of eight to ten months.

[123]      Ms. Narozniak acknowledges that the principle in Rabba is not absolute and in fact opens the door for exceptions to be made. Her position, however, is that exceptions have only been permitted by courts in the event that the facts giving rise to an 11(b) application have not crystallized as at the time of the first trial, thereby permitting the issue to be raised on appeal on the basis of differing facts. The Crown argues in this case that all of the matters necessary to be known for an 11(b) application were known to counsel as of February 1, 2001 at the first trial: any pretrial delay leading up to the first trial was known; the fact that the accused changed counsel shows that he was keenly aware of the issue; the correspondence from defence counsel from the beginning focused on potential delay; the issue of potential delay and mistrial as a result of disclosure problems were known; the issue of the Dunlop connection was known, and the Crown argues that defence counsel should have been aware of the significance of its disclosure. Further the Crown points to the statement of defence counsel at the time the application for stay was brought that if the stay were not granted, other lesser remedies may be sought. No mention was made of seeking an 11(b) remedy.

[124]      The respondent’s position can be summarized as that at the first trial the applicant chose to seek one remedy, and not to pursue a remedy based on delay, and is now bound by that choice.

[125]      Ms. Henein accepts the general principle, however, differs in regard to the application of the principle in this case. She argues that this is a case where an exception to the principle should be considered. Her argument is that although the principle may be clear, courts have not to date enunciated under what circumstances the exceptions might apply. She urges me to find that, contrary to the Crown’s position, the circumstances to be considered for an 11(b) application were not in fact crystallized at the time of the first trial. In particular, she highlights that although it was known by counsel that a mistrial would be inevitable based on non-disclosure, neither the Crown nor the defence was aware as to what that non-disclosure specifically consisted of. In other words, although the Dunlop connection was referred to, the defence had no way of knowing at that time what that connection would be in its totality, and what the effect of the disclosure of that information would be on the timing of the trial. Ms. Henein points out that it is subsequently acknowledged by the Crown in the application before me that the nine boxes of disclosure were relevant, and that the time necessary in order to review and assimilate the information contained therein would be in the area of eight to ten months.

[126]      In this regard, I specifically refer to the decision by the Court of Appeal in this case in reference to that evidence. On the facts available to the Court of Appeal at the time of hearing the appeal on the stay application, the information they determined was that the innocuous telephone calls between Dunlop and one of the complainant’s mother were at best marginally relevant to the defence. In this application, it is agreed by the respondent that the impact Dunlop has had on the applicant’s case was unknown to both the judge who heard the stay and to the Court of Appeal during the Crown appeal. In particular, the respondent agrees that the contact with Leduc witnesses extended well beyond an “innocuous” telephone call with one of the complainant’s mothers.

[127]      In addition, the respondent acknowledges that on February 14, 2001, the discovery of the Dunlop connection completely changed the nature of the case. The respondent relies upon that as part of their argument that the applicant should now be foreclosed from raising the 11(b) argument on the basis of Rabba. The applicant however takes the position that in light of the extent of the evidence now known, and the time now known to have been necessary to review same and prepare for trial, cannot be considered that the 11(b) argument would have “crystallized” at that time. Furthermore, Ms. Henein argues that regardless of the fact that a stay was instituted and subsequently overturned, it is common ground between the applicant and the respondent that at minimum a mistrial would have been required.

[128]      Furthermore, the applicant argues that the 11(b) position had not yet crystallized inasmuch as if the application for a stay had not been successful, the defence would still have been left with the opportunity to argue s. 11(b) based upon a mistrial having to be declared as a result of actions of the Crown and thereafter certain delay in order to have a new trial proceed. Counsel does not specifically put a timing on that, however, as noted it is agreed that the time to review that disclosure was 8 to 10 months. Thereafter, although I have no evidence before me on this basis, it is a fair assumption for me to make that a new trial could not have been scheduled immediately. As to how long it might have taken to schedule a new trial the only basis upon which I have to make a determination is recognizing that leave to appeal to the Supreme Court of Canada was in January, 2004. Acting then on the order of the Court of Appeal that this trial be expedited, the matter was originally dealt with in February and due to the necessity of coordinating schedules of new counsel, court availability, and the necessity to coordinate schedules with an out of region judge, this matter was scheduled in May 2004 to proceed to trial in October, following pretrial motions. I have therefore assumed that a reasonable amount of time to have proceeded to trial following a declaration of a mistrial would have been at minimum 13-15 months, which represents 8 to 10 months for review and assimilation of the disclosure, and 5 months from January to May when the pretrial motions commenced. Defence further explicitly waived any delay after May 2004.

[129]      It cannot be the case that an appellant is precluded from arguing the delay in this particular case when the delay from the first trial was inevitable, was necessitated by actions attributable to the Crown, and the full extent of such delay was not known to defence counsel at the time it arose.

[130]      This issue of crystallization is really at the crux of this case. The respondent acknowledges that if any delay is determined as of the date charges were laid, the respondent has a very uphill battle.

[131]      All cases involving delay are fact driven. Counter to the respondent’s argument of implied waiver is the evidence which clearly shows the applicant’s desire for a trial as soon as possible. I interpret the numerous requests of defence counsel as demonstrating efforts to ensure that all disclosure be assured in a timely fashion. I accept Ms. Henein’s position that the statement of counsel at trial that if no stay were granted as a result of wilful non-disclosure, other lesser remedies would be sought, could only be interpreted in relation for other remedies based on wilful non-disclosure, and did not constitute an implicit waiver of remedies which might be sought based on delay.

[132]      As I apply the principle in Rabba, I note Justice Arbour’s comment that at no time was there any concern raised regarding the delay prior to trial. Similarly in R.L.R. the court noted that the accused did not raise any suggestion of unreasonable delay or seek a stay of proceedings on the ground of violation of his 11(b) right between the laying of the information and the date of his trial. The Crown in this case was constantly being pressed by defence for disclosure, and constantly advised of the accused’s desire for an early trial. There should in my view be an even greater sense of urgency on the part of the Crown to meet such requests when specified so clearly.

[133]      Secondly, it should not apply in cases where the evidence of what delay might be incurred is not then known by the accused to make a fully informed decision. In Collins, referred to by the Crown as a unique case, the Crown conceded that the issue could be raised for the first time on appeal because certain information was unknown by the defence until the lead up to the first trial. I agree with the respondent that the time the boxes were ultimately disclosed in this case has no relevance beyond determining the effect of delay on this trial proceeding. Ms. Narozniak acknowledges that at the first trial the Crown did not know the extent which would be required to review and disclose the information for the Dunlop connection.

[134]      The respondent further relies on Bosley where there was no impediment to raising the issue at trial. I have already determined that I find there was such an impediment since the defence had not been made aware of the time required for full disclosure. Until full disclosure the delay could have been very minimal. As in Bosley, where the appellant was permitted to raise the 11(b) on appeal, this is not a case where the applicant seeks to take different position than was advanced at trial or where he seeks to create an issue where none existed at trial.

[135]      It cannot be, in my view, the case that an applicant is precluded from arguing delay in this particular case when the preliminary hearing was originally delayed as a result of a disclosure issue and that the full extent of such delay in the trial itself was ultimately not known by defence counsel at the time that it arose. Based on the unique facts as I find in this case, I find that there was no implied waiver by the defence of s. 11(b) and that, therefore, they are not precluded from raising this issue before me now.

Reasons for the Delay

[136]      The third factor, reasons for the delay, can be subdivided into five areas. The first of these is inherent time requirements. a) Inherent

Time Requirements

[137]      Courts have consistently recognized that there are certain inherent time requirements which inevitably lead to delay. Some matters are common to all cases including time for retention of counsel, giving of disclosure, holding of pretrial conferences, and adjournments from time to time to fix dates.

[138]      Similarly, the complexity of the case will have a bearing on the inherent time requirements. In Morin the Court noted that all other factors being equal, the more complicated a case the longer it will take counsel to be prepared for trial and for the trial to be conducted once it begins.

[139]      It has been recognized that complex cases require more institutional resources and time for preparation and accordingly where a case is particularly complex in nature involving a number of witnesses, a complex charge or numerous charges, complicated legal issues among others, the institutional delay may well have to be extended to be considered reasonable to reflect the practicalities of the matter. Counsel for the applicant submits that this case is neither factually nor legally complex and that the nature of the charges themselves and the issues engaged in trying them are straight forward involving credibility and reliability.

[140]      The respondent argues that the “Dunlop connection” must now be considered in relation to the inherent time requirements of the case.

[141]      While the respondent agrees that this case does not involve the intricacies of a large commercial fraud, neither does it reflect what the Crown describes as the “simplicity of a two hour mischief trial”. The Crown notes that this case has its share of evidentiary and procedural complexities.

[142]      As I review this factor, although this case has become somewhat complicated, the complications have arisen not as a result of complexities in the case itself but rather in issues surrounding disclosure, and the subsequent delay in pursuing same. This case was originally proceeding and indeed had been carried on for a period of some two and a half weeks before the problems arose. From the information available on this application, it appears to me that this case, but for that factor, is indeed a relatively non-complicated case of sexual assault based on issues of credibility and reliability.

  1. b) Actions of the Accused

[143]      The second factor under reasons for the delay is actions of the accused. The applicant has relied significantly on the evidence which suggests that everything in this application record shows consistency with the applicant’s intention to maintain and affirm the right to trial within a reasonable time. Counsel has relied on numerous letters from defence counsel seeking disclosure and expressing an intention to move forward as quickly as possible. In particular, Ms. Henein refers to the action of Mr. Leduc in choosing to change counsel just prior to trial in order to ensure that his trial could be held in a timely fashion.

[144]      The respondent’s position with respect to this issue is that aside from the overall waiver of not being able to deal with this matter at this stage, they admit there is a relatively insignificant three-month period of delay caused by defence counsel’s scheduling. Beyond that, the respondent does not rely on any conduct of the applicant as having cause delay in this case. It is clear that in the Court of Appeal decision, they noted a delay from March the 23rd of 2000 to January 2001 trial date. In reviewing the application record, I am satisfied that there was an explicit waiver for that particular time period.

[145]      Aside from the waiver discussed above, and an admitted insignificant three-month period caused by the accused’s counsel from September to December 2000, the respondent does not rely on conduct of the applicant as having caused delay in this case.

  1. c) Actions of the Crown

[146]      I next consider the actions of the Crown. Ms. Henein submits that this record is illustrative of the fact that it is actions which are attributable to the Crown which have resulted in a substantial delay incurred in the case at Bar. This is not an issue of attributing fault but an issue of applying the law that states in certain circumstances delays which have been caused are attributable to the Crown whether very specifically caused by the Crown or not. The preliminary inquiry was adjourned due to non-disclosure and the trial was stayed as a result of non-disclosure, which is acknowledged would have led to a mistrial.

[147]      The respondent acknowledges that most of the pretrial delay resulted from delayed disclosure and that responsibility for this delay must rest at the feet of the Crown. Similarly, Ms. Narozniak accepts that the Crown must also accept responsibility for the delay that would have resulted from the mid-trial discovery of the Dunlop connection.

[148]      In view of the position taken by the Crown and in view of the determination that I have made earlier that any delay in this case begins from the date of the laying of charges I am certainly satisfied that any delay in this matter must be attributable to the Crown.

[149]      The applicant’s counsel raises the issue that this is a unique case by virtue of the fact that both the respondent and the applicant agree that regardless of the stay application, a mistrial necessarily would have been ordered on March 1, 2001. The applicant therefore submits that the situation in this case is properly understood under the rubric of case law where a mistrial results and a new trial is ordered.

[150]      I fully recognize as Ms. Narozniak points out that we are not at this stage because of a mistrial but because of a stay of proceedings. Notwithstanding, I agree with Ms. Henein that in the very unique circumstances of this case delay resulting can be considered in the same light as cases involving mistrials.

[151]      In R. v. R.M.7 Quinn J. of the Superior Court of Justice noted [para. 37]:

The Crown submits that mistrials are considered part of the inherent time requirements of a case. Reliance is placed on R. v. Batte, (2000), 2000 CanLII 5750 (ON CA), 145 C.C.C. (3d) 498 at 520-21 (Ont. C.A.). I do not think that R. v. Batte stands for such a general proposition. In the view I take of the matter, where a mistrial is caused by the actions of the Crown it is open for the court to include any resultant delay in the paragraph 11(b) calculations and count the delay against the Crown.

[152]      In R. v. East8 Lack J. of the Superior Court stated [para. 82]:

Conduct on the part of the Crown which occasions delay must be assessed to the Crown, and is not available to excuse delay. Delays in making disclosure by the Crown have been the basis for finding delays which infringe accused’s s. 11(b) rights: R. v. Collins (1999), 1995 CanLII 114 (SCC), 99 C.C.C. (3d) 385 (S.C.C.). It should also be observed that generally the remedy provided when the Crown fails to make disclosure is the granting of an adjournment to the accused so that the disclosure can be obtained. The result is that the Crown must be taken to know that the consequence of its failure to make timely disclosure may very well be delays which can compromise an accused’s s. 11(b) right to trial within a reasonable time.

[153]      The Ontario Court of Appeal in R. v. Satkunananthan9 and R. v. Batte10 have held that the entire time frame, pre- and post-mistrial is properly considered one chain of events for a s. 11(b) analysis.

[154]      I agree with Ms. Henein’s position on this issue. Clearly in this case, regardless of a determination on the stay of proceedings application, there would have been further delay occasioned as a result of the mistrial which would have had to have been declared. That mistrial is properly attributable to the Crown. Accordingly, I consider that the total time frame to be considered in this circumstance begins when the charges were laid in June of 1998.

  1. d) Limits on Institutional Resources

[155]      Limits on institutional resources must also be considered. This subcomponent of s. 11(b) considers systemic or institutional delay. Institutional delay was defined in Askov as being the period where the parties are ready for trial and yet the system cannot accommodate them. Systemic or institutional delays are to be attributable to the Crown in the sense that such delay cannot be relied upon by the Crown to excuse delay.

[156]      In Morin the Supreme Court of Canada suggested an administrative guideline of 6 to 8 months for cases as at the provincial court level, and an additional 6 to 8 months of acceptable institutional delay after committal. That was clearly defined as an “administrative guideline” which was flexible and was not to be utilized as a “limitation period” or a “fixed ceiling on delay”. Ms. Henein takes the position that the delay resulting from the adjournment of the first preliminary hearing is as previously submitted properly accorded to actions of the Crown. The relevance of institutional delay in this case she submits is only with respect to the assessment of the overall period of delay.

[157]      Ms. Narozniak submits that there is no indication anywhere in the record that institutional resources were denied to the applicant.

[158]      I agree with the position of Ms. Henein that this is not a complicated case. Institutional delay in this case is only relevant insofar as it relates to the overall period of delay.

  1. e) Other Reasons for Delay

[159]      Lastly there is a category of factors that relates to all other reasons for delay that do not concisely fit into one or the other categories. The applicant submits that the eight months of delay incurred between the hearing at the Court of Appeal on October 24th and 25th, 2002, and the release of the judgment on July 24, 2003 is properly attributable to the Crown pursuant to s. 7 of the Charter. Although s. 11(b) of the Charter does not apply to appellate delay because an appellate is no longer “a person charged”, in R. v. Potvin11 the Supreme Court of Canada held that the security of person interest, protected by s. 7 of the Charter, can apply in such circumstances.

[160]      The applicant argues that in waiting eight months for judgment the applicant is in a similar situation to the facts of R. v. Rahey.12 In that case the Defendant made a motion for a directed verdict and awaited the trial judge’s ruling for eleven months. That eleven-month delay in receiving judgment was deemed unreasonable within the meaning of s. 11(b) requiring a stay of proceedings.

[161]      [161] In Conway, Sopinka J. noted [p. 330]:

The time elapsed as a result of resort to appeal procedures by either the accused or the Crown can be considered under s. 11(b). However, these delays are to be assessed in recognition of the inherent time requirements at the relevant appellate court. Resort to appellate proceedings will understandably add to the over-all time in resolving the matter. A determination of the reasonableness of the actual delay must be sensitive to the number and nature of proceedings.


[162]      The fourth factor to be considered under the Morin analysis is prejudice. In Conway at p. 319 Justice L’Heureux-Dubé in dealing with the issue of prejudice noted:

Understandably, these tragic events have caused much grief and sorrow to be felt by a number of friends, family relations and other persons. However, it would most certainly strain the integrity of the judicial process if, as part of a determination under s. 11(b) of the Charter, courts were to engage in a balancing of the financial and emotional loss incurred by the respective families of the person charged and the victim. The right to a trial within a reasonable time seeks to prevent the over-long subjection of the person charged to the pressures inherent to a pending criminal accusation. The prejudice suffered by that person alone is relevant to the inquiry.

[163]      In R. v. White13 the Newfoundland Court of Appeal noted that prejudice to the accused may be inferred from the length of the delay. In addition, the accused may rely on evidence demonstrating prejudice or the Crown may submit that the evidence dispels any finding of prejudice. In referring to R. v. Morin and R. v. Pusic,14 Justice Molloy in R. v. Selby15 indeed noted that prejudice is presumed from a delay of 41 months.

[164]      As noted in Morin, the prejudice factor incorporates not only a concern for prejudice to the liberty of an individual, but also prejudice to security of the person. In Mills, Lamer J. noted that security of the person encompasses protection against overlong subjection to the vexations and vicissitudes of appending criminal accusation. These may include stigmatization of the accused, loss of privacy, stress and anxiety resulting from a multitude of factors, including possible disruption of family, social life and work, legal costs, and uncertainty as to the outcome and sanction. These forms of prejudice cannot be disregarded nor minimized when assessing the reasonableness of the delay. Indeed, in Mills, although he was in dissent in the result, Justice Lamer stated that in his view such forms of prejudice leading to impairment of the security of the person may, in and of themselves, constitute a violation of s. 11(b) if allowed to foster over long.

[165]      In R. v. Morin, the Supreme Court held that apart from inferred prejudice, an accused may rely on actual evidence to show prejudice. I have before me in this application evidence of Mr. Leduc himself, by way of affidavit, and also the evidence of Mr. Dunlop and Mr. Chisholm. I am satisfied that the evidence demonstrates that this matter has been in the public eye in Cornwall for a very lengthy period of time, indeed extending virtually back to the date of the charges, if not previous.

[166]      Mr. Leduc’s affidavit details the prejudice he has suffered in his community, to his personal financial situation, to his law practice, and to his personal relationships. There has been intense media coverage in the Project Truth investigation in general, and in Mr. Leduc’s alleged involvement in particular. Material has been disseminated over the Internet describing him as a devil and a pedophile.

[167]      Although he was active in community activities prior to these charges he has withdrawn from such activities be they with his church, schools, or political organizations.

[168]      In addition he has been subjected to vandalism and harassment including graffiti sprayed on his office windows and repeated acts of vandalism over the course of six years. He received in his office mail a mysterious white powder. Both he and his wife have received what he described as prank calls both in the middle of the night and also during the daytime.

[169]      On a professional basis, since he was charged in June of 1998 he has maintained the practice of law. However, since the charges and during the six years, he has lost numerous clients as a result of these outstanding allegations. Each time he has a court appearance which is reported in the media, clients have contacted him to ask for their file back.

[170]      He states that he has suffered a financial impact as a result of losing part of his client base which has been exacerbated by the illness of his wife and her inability to return to full-time work.

[171]      His affidavit details on four occasions he has had to set aside significant blocks of time in his own schedule in order to attend court on either preliminary inquiries or scheduled trial. He has had to inform clients that he could not appear for them during those occasions due to his own charges.

[172]      He further details that in 1998 he was part of a partnership. From 1998 to 2001 he and his partners refrained from making important business decisions natural to the normal operation of a law practice because of the uncertainty surrounding his own future. After the charges were stayed but before he was aware of the Crown appeal his partners informed him that decisions had to be made about the future of the partnership. He details that he knew the partnership was going to dissolve, which resulted in large part because of the strain his charges and the community attention had placed on his business. Accordingly, in April of 2001 he resumed practice as a sole practitioner.

[173]      He had detailed in his affidavit significant financial prejudice which he has incurred. To begin with, because he is a practising lawyer in the Cornwall area he has consistently had to retain out-of-town counsel to represent him which has necessitated additional expenses for travel.

[174]      [174] He originally retained an Ottawa counsel and after preparing significantly with that counsel for a preliminary hearing which was originally scheduled in April of 1999, new charges were laid which ultimately necessitated an adjournment of the preliminary.

[175]      Subsequent to the completion of the preliminary in December of 1999 a trial date was scheduled for January of 2001. However, as a result of a conflict his counsel had with a continuing murder trial and because of his desire to have his matter dealt with as expeditiously as possible he was required to retain new counsel with the attendant costs.

[176]      In order to retain counsel, he states that he was required to mortgage a cottage which was originally acquired by his wife by way of inheritance. Although previously they had enjoyed substantial equity in the family home, it is now fully mortgaged. In addition, he has had to borrow in excess of $100,000 from family members.

[177]      His affidavit describes how prior to being charged he was at a stage in his life where he foresaw a debt free future and working at a lesser pace over the years. He was anticipating reaping the fruits of his years invested in the practice of law and his wife’s as a teacher. He now states that during the rest of his life he will never be able to work long enough to pay back the debt that he has incurred as a result of legal bills.

[178]      In addition to the community, personal, and financial prejudice, he states that he has also suffered significant emotional prejudice. Since the day of the charges he has been suppressing feelings of anger, fear, worry, resentment, and jealousy of individuals who lead normal lives. He has held back expressing any of those feelings to his wife. He describes in his affidavit the guilt he has felt while watching his daughter carry the burden of these very public allegations throughout high school and into her university years.

[179]      He describes the guilt he feels in that his father passed away in October, 2003, without knowing of any conclusion to the allegations against him. He further describes that his relationship with his wife has changed. It has remained a strong relationship and she has remained committed to him however, he has suffered significant guilt for having to mortgage her assets and for the financial compromises that have been made to their future and their retirement years.

[180]      He further notes that at times he has contemplated suicide in order to give his family an ending to this matter.

[181]      Overall he states that there is no significant area of his life that has gone undamaged as a result of having no resolution to these charges over a passage of six years. His relationships with his family, his emotional well-being, the family’s financial situation, his professional life, and his community involvement, are now damaged in his view beyond measure.


[182]      In R. v. Morin, McLachlin J. noted [p. 30]:

The task of a judge in deciding whether proceedings against the accused should be stayed is to balance the societal interest in seeing that persons charged with offences are brought to trial against the accused’s interest in prompt adjudication. In the final analysis the judge, before staying charges, must be satisfied that the interest of the accused and society in a prompt trial outweighs the interest of society in bringing the accused to trial.

[183]      In R. v. Batte the Court noted that the purpose of the analysis of the delay under the various Morin headings is to provide a framework for the balancing exercise in Morin in these terms [para. 86]:

The judicial process referred to as “balancing” requires an examination of the length of the delay and its evaluation in light of the other factors. A judicial determination is then made as to whether the period of delay is unreasonable. In coming to this conclusion, account must be taken of the interests which s. 11(b) is designed to protect.

[184]      The interest of s. 11(b) is designed to protect not only the interest of the accused but the societal interest in seeing that accused are tried promptly. Further, the more serious the charge the greater the societal demand that the accused be brought to trial.

Summary of Delay Positions

[185]      The clear dispute between the applicant and respondent in this case is that the applicant takes the position that delay should be calculated as of the date charges were laid, and the respondent calculates delay as of the date of the first trial. The two specific areas of delay arise from the pretrial delay and secondly, from the Dunlop connection that arises in the middle of the trial in January 2001.

[186]      I have earlier determined that I do not accept the respondent’s position that the delay issue crystallized as of mid-trial in February 2001.

[187]      That leaves us with the situation where these charges have taken over six years to come to this point where we are about to begin calling evidence at trial. It took seventeen months to reach preliminary as a result of problems with disclosure and the introduction of a third complainant just prior to the date initially scheduled for the preliminary.

[188]      It then took seventeen months to reach the first scheduled trial date. On March 31, 2000, the accused waived 11(b) in connection with the trial date of January 2001. One and one-half months after the first trial commenced, the matter was then stayed. It is acknowledged by the respondent that the first trial would had to have been delayed in any event at minimum for a period of 8-10 months as a result of the Dunlop factor. Looking at the time frame to have this case come to trial after January of 2004, I accept that at minimum there would have been an additional 2-3 months in order to schedule a new trial following consideration of the Dunlop boxes.

[189]      On any basis, notwithstanding the stay of proceedings originally, the unique facts of this case show that it could not have proceeded to trial any sooner than 43 and a half months following the laying of charges. The respondent acknowledges that through that time, three months of delay could be attributed to the applicant leaving us with a delay of forty and one-half months. If I then take into account the nine-month period waived by the applicant on March 31, we are still left well beyond the 18- to 20-month guidelines established by the Court of Appeal. If, indeed, time runs from throughout the appeal period and to this date and since I have found that that delay must be attributed to the respondent, the period of time considered as overall delay now has become in excess of five years and three years of that delay must be attributable in law to the respondent.

Final Conclusion

[190]      In considering the conclusion I have reached, I find that I can do no better than to use the words of Chilcott J. in R. v. MacDonald16 [para. 54]:

In assessing the reasonableness of the delay under Section 11(b), I must balance the interest of society, the citizens of this community and elsewhere, in having the matter brought to trial as against the interest of the accused person’s right to be brought to trial in a reasonable time. McLachlin J., as she then was, in Morin, supra, page 29 and 30 states as follows:

It is easy, in considering the factors which can bear on that determination, to lose sight of the true issue at stake ― the determination of where the line should be drawn between conflicting interests. On the one hand stands the interest of society in bringing those accused of crimes to trial, of calling them to account before the law for their conduct. It is an understatement to say that this is a fundamental and important interest. Even the earliest and most primitive of societies insisted that the law bring to justice those accused of crimes. When those charged with criminal conduct are not called to account before the law, the administration of justice suffers. Victims conclude that justice has not been done and the public feels apprehension that the law may not be adequately discharging the most fundamental of its tasks. On the other side of the balance stands the right of a person charged with an offence to be tried within a reasonable time. When trials are delayed, justice may be denied. Witnesses forget, witnesses disappear. The quality of evidence may deteriorate. Accused persons may find their liberty and security limited much longer than necessary or justifiable. Such delays are of consequence not only to the accused, but may affect the public interest in the prompt and fair administration of justice.

The task of a judge in deciding whether proceedings against the accused should be stayed is to balance the societal interest in seeing that persons charged with offenses are brought to trial against the accused’s interest in prompt adjudication. In the final analysis the judge, before staying charges, must be satisfied that the interest of the accused and society in a prompt trial outweighs the interest of society in bringing the accused to trial.

The factors to be considered include the length of the delay, any waiver by the accused of the delay, the reasons for the delay and prejudice to the accused. But simply listing factors does not resolve the dilemma of a trial judge faced with an application for a stay on grounds of delay. What is important is how those factors interact and what weight is to be accorded to each. In this connection, we must remind ourselves that the best test will be relatively easy to apply; otherwise, stay applications themselves will contribute to the already heavy load on trial judges and compound the problem of delay.

[191]      As was Justice Chilcott, I too am fully aware how some members of this community are emotionally charged over this matter.

[192]      I further rely on the decision of Justice Low in R. v. Paryniuk17 [paras. 88-89]:

If the requested remedy is granted under s. 24 of the Charter, the prosecution will terminate. There will not be a determination of whether or not the Crown has proved the defendants’ guilt beyond a reasonable doubt. I draw a distinction between the above, which is the result of a stay, and the possibility that one or the other or both of the accused have done that which is alleged and that they will go unpunished for it. While there is a public interest in bringing accused persons to trial, the accused persons are presumed innocent until prove [n] guilty beyond a reasonable doubt …

If a remedy is denied to the defendants, prejudice will be extended for the duration of the trial. There are those in the community who will read an implicit message (although the function of the court is not to send messages but to decide cases) that dilatory and inefficient discharge by the Crown of its disclosure obligations and unreasonably slow processing by the court, though unjustifiable, may be excused or disregard[ed] and, more importantly, that an accused’s s. 11(b) rights are worth less where the allegation is serious than where the allegation is less serious. In my view that would be a regrettable result. If anything, where the allegation is of a very serious offence with potential for weighty penalty, and where the public has a high degree of interest in achieving a determination of guilt or no guilt, the degree of diligence and attention paid to the prosecution of the case should be heightened and the matter should be brought to trial more expeditiously, and not less.


[193]      In all of the very unique circumstances of this case, I am of the view that the protection of the defendant’s rights under s. 11(b) of the Charter and society’s interest in enforcement of those rights must predominate over the public interest in having the prosecution continue.

[194]      Accordingly the application is granted, and these charges are stayed.

Application allowed; proceedings stayed.


1 (1992), 1992 CanLII 89 (SCC), 71 C.C.C. (3d) 1 (S.C.C.).

2 (1990), 1990 CanLII 45 (SCC), 59 C.C.C. (3d) 449 (S.C.C.).

3 (1991), 1991 CanLII 7073 (ON CA), 64 C.C.C. (3d) 445 (Ont. C.A.).

4 (1989), 1989 CanLII 66 (SCC), 49 C.C.C. (3d) 289 (S.C.C.).

5 1992 CanLII 2838 (ON CA), [1992] O.J. No. 2656 (QL), 18 C.R. (4th) 347 (C.A.).

6 [1992] O.J. No. 1980 (QL), 17 W.C.B. (2d) 221 (C.A.).

7 [2003] O.J. No. 2055 (QL), 57 W.C.B. (2d) 532 (S.C.J.).

8 [2000] O.J. No. 418 (QL), 45 W.C.B. (2d) 258 (S.C.J.).

9 (2001), 2001 CanLII 24061 (ON CA), 152 C.C.C. (3d) 321 (Ont. C.A.).

10 (2000), 2000 CanLII 5750 (ON CA), 145 C.C.C. (3d) 498 (Ont. C.A.).

11 (1993), 1993 CanLII 113 (SCC), 83 C.C.C. (3d) 97 (S.C.C.).

12 (1987), 1987 CanLII 52 (SCC), 33 C.C.C. (3d) 289 (S.C.C.).

13 (1998), 1998 CanLII 13319 (NL CA), 131 C.C.C. (3d) 33 (Nfld. C.A.).

14 1996 CanLII 8215 (ON SC), [1996] O.J. No. 3329 (QL), 30 O.R. 692 (Gen. Div.).

15 [1999] O.J. No. 5622 (QL) (S.C.J.).

16 [2002] O.J. No. 2258 (QL) (S.C.J.).

17 [2003] O.J. No. 1051 (QL), 104 C.R.R. (2d) 202 (S.C.J.).