R. v. K.G.W., (2016) 349 O.A.C. 60 (SCC)

• Judge: McLachlin, C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 07, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2016), 349 O.A.C. 60 (SCC);2016 SCC 28

R. v. K.G.W. (2016), 349 O.A.C. 60 (SCC)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2016] O.A.C. TBEd. JL.032

Her Majesty the Queen (appellant) v. K.G.W. (respondent) and Attorney General of Alberta, British Columbia Civil Liberties Association and Criminal Lawyers' Association (Ontario) (interveners)

(36112; 2016 SCC 28; 2016 CSC 28)

Indexed As: R. v. K.G.W.

Supreme Court of Canada

McLachlin, C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown, JJ.

July 8, 2016.

Summary:

The accused was charged with historical sexual assaults, namely buggery, indecent assault and gross indecency, under ss. 155, 156 and 157 of the Criminal Code, R.S.C. 1970, allegedly committed between 1978 and 1982, against a single complainant who was a young boy aged between 10 and 12 at the time. The accused applied for a stay of proceedings based on a violation of his s. 11(b) Charter right to be tried within reasonable time.

The Ontario Superior Court, in a decision reported at [2011] O.T.C. Uned. 5930, held that while this was a borderline case, the accused had not proven, on a balance of probabilities, that his right to a trial within a reasonable time had been breached. The Crown applied for admission of a video/audio statement by the accused to police.

The Ontario Superior Court, in a decision reported at [2011] O.T.C. Uned. 6584, allowed the application. The accused was found guilty after a jury trial and sentenced to four years' imprisonment. The accused appealed, submitting that the trial judge erred: (1) in refusing to grant a stay of the proceedings based on unreasonable delay; and (2) in not excising segments of the video recorded interview the accused had with the police, or, alternatively, by not providing a caution to the jury on the use to which they might put those segments.

The Ontario Court of Appeal, in a decision reported at (2014), 324 O.A.C. 231, allowed the appeal on the first ground, set aside the convictions and entered a stay of proceedings. The Crown appealed.

The Supreme Court of Canada, Cromwell, Wagner and Gascon, JJ., dissenting, dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Editor's Note: In a decision reported at [2011] O.T.C. Uned. 6859 (Sup. Ct.), the accused's application for production of the complainant's psychiatrist's records was granted on conditions.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - The accused was found guilty of historic sexual assaults (buggery, indecent assault and gross indecency) - On appeal, he submitted that the trial judge erred in refusing to grant a stay based on unreasonable delay (Charter, ss. 11(b) and 24(1)) - The Ontario Court of Appeal found that the 35 month, 16 day delay was unreasonable - The Crown appealed - The Supreme Court of Canada dismissed the appeal - In a companion case ("Jordan"), the court revised downwards the timelines for what constituted a reasonable time - Since the accused had been charged before Jordan's release, the court had to consider whether the transitional exceptional circumstance applied - This required the Crown to show that the time the case had taken was justified based on the previous legal framework, upon which the parties reasonably relied - Although this was a close case, the transitional exceptional circumstance did not apply; therefore, the delay was unreasonable - Looking at the big picture, the previous state of the law could not justify the nearly three years it took to bring the accused to trial on relatively straightforward charges - As the Court of Appeal had observed, while the crimes committed by the accused were very serious, "the balance weighs in favour of [his] interests in a trial within a reasonable time, over the societal interest in a trial on the merits" - Although the accused did not suffer significant prejudice, the case was simple, the Crown did little to combat the substantial institutional delay that plagued the prosecution, and the accused was reasonably proactive in attempting to move the matter along - See paragraphs 18 to 30.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - The Supreme Court of Canada held that the ultimate question of guilt or innocence was not relevant to whether the time taken to try an accused was reasonable - At the time of the accused's s. 11(b) Charter application, he was presumptively innocent - It was wrong to give after-the-fact effect to his convictions when the only question presented by the appeal was whether his right to be tried within a reasonable time was infringed at the time the application was brought - See paragraph 32.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - On appeal, the Ontario Court of Appeal held that the accused's right to trial within a reasonable time under s. 11(b) of the Charter had been violated and it entered a stay of proceedings - The Crown appealed - The Supreme Court of Canada referred to difficulties in considering the seriousness of the offence as an analytical factor in the s. 11(b) analysis - First, a person's right to a trial within a reasonable time could not be diminished based solely on the nature of the charges he or she faced - Section 11(b) did not admit of gradients of reasonableness where the charges were serious - Delay was either unreasonable, or it was not - Second, the Charter right was respected, and the public interest was best served, by trying serious charges on their merits in a timely fashion - These were precisely the cases that should be heard promptly, on the strongest possible evidence - Third, some grave charges required very little time to be tried, while some less serious charges required more time - See paragraphs 33 to 37.

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - [See first Civil Rights - Topic 3265 ].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See first Civil Rights - Topic 3265 ].

Courts - Topic 11

Stare decisis - Authority of judicial decisions - General principles - Application of judgments - Prospective or retrospective - [See first Civil Rights - Topic 3265 ].

Counsel:

Eric H. Siebenmorgen and Tracy Kozlowski, for the appellant;

John H. Hale, for the respondent;

Jolaine Antonio, for the intervener, the Attorney General of Alberta;

Tim A. Dickson and Martin Twigg, for the intervener, the British Columbia Civil Liberties Association;

Frank Addario and Erin Dann, for the intervener, the Criminal Lawyers' Association (Ontario).

Solicitors of Record:

Attorney General of Ontario, Toronto, Ontario, for the appellant;

Hale Criminal Law Office, Ottawa, Ontario, for the respondent;

Attorney General of Alberta, Calgary, Alberta, for the intervener, the Attorney General of Alberta;

Farris, Vaughan, Wills & Murphy, Vancouver, British Columbia, for the intervener, the British Columbia Civil Liberties Association;

Addario Law Group, Toronto, Ontario, for the intervener, the Criminal Lawyers' Association (Ontario).

This appeal was heard on October 7, 2015, by McLachlin, C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown, JJ., of the Supreme Court of Canada. The court delivered the following decision on July 8, 2016, which was comprised of the following opinions:

Moldaver, Karakatsanis, and Brown, JJ. (Abella and Côté, JJ., concurring) - see paragraphs 1 to 39;

McLachlin, C.J.C., concurring in the result - see paragraphs 40 to 42;

Cromwell, J., dissenting (Wagner and Gascon, JJ., concurring) - see paragraphs 43 to 86.