COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McDonald, 2014 ONCA 512

DATE: 20140702

DOCKET: C52747

C52758

Rosenberg, Epstein and Lauwers JJ.A.

BETWEEN

C52747

Her Majesty the Queen

Respondent

and

Dustin McDonald

Appellant

C52758

Her Majesty the Queen

Respondent

and

Brandon Green

Appellant

Gerald Chen, for the appellant, Dustin McDonald

Mark Halfyard, for the appellant, Brandon Green

David Lepofsky and Dan Guttman, for the respondent

Heard and released orally: October 31, 2013

On appeal from the sentence imposed on June 21, 2011 by
    Justice R.M. Thompson of the Superior Court of Justice, sitting with a jury.

APPEAL BOOK ENDORSEMENT

[1]

We agree with the appellants that in the unusual circumstances, this is
    not a case for deference given that the entire emphasis at trial was on the
    aggravated assault conviction which has now been set aside.

[2]

We see no benefit to returning these appellants to custody given the 5
    years that has elapsed since the offence, the time spent on bail pending appeal
    and the 9 days each has spent in custody.

[3]

We are also satisfied that notwithstanding the seriousness of this common
    assault, imposing a discharge would not be contrary to the public interest.
    There were no serious injuries to the victim who did not file a victim impact
    statement.  The appellants were young and at the time both were first
    offenders.

[4]

We are also satisfied that the public interest can be served and the
    seriousness of offence reflected in a lengthy term of probation with community
    service.

[5]

A discharge is in the appellants interest given their prior good
    character and the possible impact of a conviction on their prospective careers
    and in Mr. Greens ability to travel to be with his family.

[6]

Accordingly, leave to appeal is granted. The appeals are allowed, the
    sentence is set aside and each appellant is granted a conditional discharge
    with probation for 2 years on the terms imposed by the trial judge with the
    additional condition that the appellants each complete 200 hours of community
    service.


WARNING

The President of the panel hearing this appeal directs that the following
    should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1),
    (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.
    These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2),
    the presiding judge or justice may make an order directing that any information
    that could identify the complainant or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210,
    211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144
    (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156
    (indecent assault on male) or 245 (common assault) or subsection 246(1)
    (assault with intent) of the
Criminal Code
, chapter C-34 of the Revised
    Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection
    146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse
    with a female between 14 and 16) or section 151 (seduction of a female between
    16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or
    bestiality), 157 (gross indecency), 166 (parent or guardian procuring
    defilement) or 167 (householder permitting defilement) of the
Criminal Code
,
    chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately
    before January 1, 1988; or

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).

(2)     In proceedings in respect of the
    offences referred to in paragraph (1)(a) or (b), the presiding judge or justice
    shall

(a)     at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the
    complainant of the right to make an application for the order; and

(b)     on application made by the
    complainant, the prosecutor or any such witness, make the order.

(3)     In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)     An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b).

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings taken
    against any person who fails to comply with the order, the publication in any
    document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Milani, 2014 ONCA 536

DATE: 20140709

DOCKET: C56451

Goudge, van Rensburg and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Donald Milani

Respondent

Christopher Webb, for the appellant

Seth P. Weinstein and Jill Makepeace, for the respondent

Heard: January 22, 2014

On appeal from the order of Regional Senior Justice Helen
    M. Pierce of the Superior Court of Justice, dated December 4, 2012, with
    reasons reported at 2012 ONSC 6892.

van Rensburg J.A.:

OVERVIEW

[1]

This is a Crown appeal of an order staying proceedings against the
    respondent for breach of his rights under s. 11(b) of the
Canadian Charter
    of Rights and Freedoms
. The respondent, who was originally charged with
    certain offences and discharged following a preliminary inquiry, was charged with
    the same offences under a preferred indictment some 23 years later. The appeal
    raises the issue of whether the respondent was a person charged with an
    offence during the intervening period.

[2]

For the reasons that follow, I would allow the Crowns appeal, set aside
    the order staying the prosecution against the respondent, and remit the matter
    back to the trial judge.

BACKGROUND

(1)

Facts

[3]

In the mid-1980s, a series of home invasion sexual assaults were
    perpetrated against five complainants. The respondent Donald Milani was charged
    with offences arising out of those assaults in December 1987.

[4]

Evidence collected from the crime scenes included imprints of the
    assailants footprints and tire treads, as well as samples of bodily substances
    believed to have originated with the perpetrator. A beer bottle from which the
    assailant was believed to have drunk was also seized from one of the
    residences.

[5]

At the time, DNA technology was not advanced enough to connect the
    respondent to semen and saliva seized at the crime scenes. The Crowns case
    against the respondent relied entirely on circumstantial evidence.

[6]

An information was laid against the respondent on December 22, 1987. Following
    a preliminary inquiry, the respondent was discharged on November 27, 1989, in
    respect of all offences except one, for which he was committed to trial. He was
    acquitted at trial, and that charge is not at issue on this appeal.

[7]

DNA analysis advanced in the years that followed. In 2008 and 2009, the
    police resubmitted samples of semen and saliva seized at the crime scenes to
    the Centre of Forensic Sciences (the CFS), which concluded that it was likely
    that the DNA on the exhibits matched the respondents DNA: The probability
    that a randomly selected [unrelated] individualcould coincidentally share the
    observed DNA profile [was] estimated to be one in 18.8 billion.

[8]

The Crown preferred an indictment against the respondent on July 23,
    2010, and on August 17, 2010, he was arrested and charged with 19 counts
    relating to four of the home invasion sexual assaults. He was released on bail,
    and his trial was scheduled for January 2013. In the intervening years, between
    his discharge and the new charges, the respondent had been unaware that there
    was any ongoing investigation into his involvement in the sexual assaults.

(2)

The Stay Application:  Positions of the Parties

[9]

The respondent brought an application seeking a stay of proceedings
    under section 24(1) of the
Charter
,

alleging the infringement of his rights
    under sections 7 and 11(b)
.
On a
    motion for directions the trial judge directed that the application proceed as
    a pre-trial motion. After hearing evidence in a
voir dire
and submissions
,
the trial judge concluded that the respondents rights under s.
    11(b) had been infringed and she stayed the charges. Having determined the
    application based on s. 11(b), she did not deal with the parties arguments
    respecting the alleged s. 7 breach.
[1]

[10]

It
    is important to understand the respondents position with respect to delay in
    this case. On the application, the respondent asserted that the total period of
    time to be assessed for s. 11(b) purposes began to run when he was first
    charged in 1987, and continued to run after his discharge in 1989. There was no
    assertion of unreasonable delay in the proceedings leading up to the
    respondents discharge in 1989. Likewise, no unreasonable delay was asserted
    for the period between the preferment of the new indictment in 2010 and the anticipated
    date of trial. Rather, the period in question was comprised of the gap years
    between his discharge in November 1989, and the preferring of the new
    indictment in July 2010.

[11]

The
    respondent did not contend that the entire gap period constituted an
    unreasonable delay, and did not claim institutional delay as a factor. He
    submitted that the period from 1987 (when he was originally arrested) to 1995
    was inherent time necessary to permit the advance of DNA science. The
    respondent argued that the period between 1995 to 2010 constituted unreasonable
    delay that was attributable to the Crown, arising from:

·

the failure of police to request
    further testing between 1995 and 1997 of the items they had seized;

·

the failure of police to submit
    the beer bottle for analysis as early as 1998;

·

the delay by police in submitting
    items for testing in October 2007 after a decision was made identifying these
    items 13 months earlier;

·

a further 13 month delay between the
    submission of certain items to CFS and its report;

·

an eight month delay in informing
    the officer in charge of the investigation that a new saliva sample was
    required from the applicant;

·

a three month delay in obtaining
    the saliva sample; and

·

a delay of 20 months in obtaining
    a preferred indictment.

[12]

It
    was acknowledged that there was no actual prejudice to the respondent during
    the gap period when he was unaware of the ongoing investigation or pending
    charges. Rather, the respondent argued that the delay in getting the case to
    trial far exceeded the guideline in
R. v.
    Morin,
[1992] 1 S.C.R. 771, and as such, that prejudice should be
    inferred.

[13]

The
    Crowns position on the application was that this case should be characterized
    as a cold case, and that the court should not, through the vehicle of a
Charter
application, micromanage the police investigation. The Crown asserted
    that the time before the indictment was preferred should be considered
    pre-charge delay and not counted against the Crown for the purposes of the s. 11(b)
    analysis. The Crown argued that the time counted as delay should run from when
    the indictment was preferred, as the respondent was not a person charged with
    an offence during the gap period running from his discharge in 1989 until the
    indictment was preferred in 2010.

(3)

Decision Below

[14]

In
    her detailed reasons for decision on the application, the trial judge reviewed
    the chronology of the case and legal principles applicable to s. 11(b). She
    then considered what period ought to be considered in the s. 11(b) analysis. The
    trial judge held that the time for assessing delay for the purposes of s. 11(b)
    ran from the date of the laying of the first information in 1987. She referred
    to
Re Garton and Whelan
(1984),
    47 O.R. (2d) 672 (H.C.) and
R. v. Antoine
(1983),
    41 O.R. (2d) 607 (C.A.), as authority for the proposition that, in cases where
    an accused has been discharged after a preliminary inquiry and a preferred
    indictment is subsequently sought, the time for assessing unreasonable delay
    for s. 11(b) purposes runs from the date of the initial information.

[15]

The
    trial judge noted that there were contradictory trial level authorities on the
    treatment of the gap period for the s. 11(b) purposes, but she concluded that
R. v. Antoine
remained the
    governing authority, that had not been affected by the Supreme Courts decision
    in
R. v. Potvin,
[1993] S.C.J.
    No. 63. In
Potvin
, the Supreme Court held that s. 11(b) did not apply
    to the period between a trial decision and the conclusion of an appeal.

[16]

The
    trial judge then reviewed the delay from the time when the charges were first
    laid against the respondent. She concluded that the length of the delay (some
    24 years) warranted inquiry into the reasons for the delay. She observed that the
    respondent had not waived any time periods, that there was an inherent delay in
    the period between the accuseds initial arrest and 2005, when DNA analysis was
    developing, and that there were no actions of the respondent that increased the
    time to proceed to trial.

[17]

The
    trial judge rejected the Crowns position that the period of police
    investigation prior to the preferred indictment should be considered as
    pre-charge investigation delay and not accounted for in the s. 11(b) analysis.
    With respect to Crown delay, the trial judge found that there was an
    unexplained Crown delay in submitting exhibits to the CFS, in sending the
    saliva samples to complete the CFS analysis, and in the CFSs reporting time. There
    was also some unreasonable delay in the preparation by police of a disclosure
    package to be submitted to Crown counsel for consideration in preferring an
    indictment. The trial judge found that there was a total of 32 months of delay
    attributable to the Crown. (On the appeal, the parties agreed that there was a
    calculation error and that the period of unreasonable delay on the facts found
    by the trial judge was in fact 26 months.)

[18]

The
    trial judge then addressed the question of prejudice. While there was no
    evidence of actual prejudice, she concluded that there was inferred prejudice
    to the respondent as a result of the Crown delay. She referred to the decision
    of the Supreme Court of Canada in
R. v.
    Godin,
[2009] 2 S.C.R. 3 as authority that prejudice to an
    accuseds right to make full answer and defence may be inferred from the length
    of the delay alone. The trial judge concluded that the length of unreasonable
    delay for which the Crown was responsible led to an inference of prejudice.

[19]

The
    trial judge noted that it is a principle of law that cases should be tried on their
    merits. However, she also noted that the
Charter
guarantee of a trial within a reasonable time was designed to protect citizens
    from protracted proceedings, where their liberty is at risk for an extended
    period of time. She observed that in this case, there was an extraordinary 301
    month delay from the laying of the initial information in 1987 until trial. The
    trial judge concluded that the limits prescribed by
R. v. Morin
were greatly exceeded in this unusual case, and
    that the respondents s. 11(b) rights were breached. The charges against him
    were therefore stayed.

ISSUES

[20]

The
    following issues arise in this appeal:

1.

Did the trial judge err in
    concluding that the respondent was a person charged with an offence under s.
    11(b) of the
Charter
during the
    gap period?

2.

If the time for s. 11(b) runs during
    the gap period, did the trial judge err in
concluding that the
    respondent suffered prejudice
?

3.

Did the trial judge err in ordering
    a stay of the proceedings?

ANALYSIS

[21]

Section
    11(b) of the
Charter
states that
    Any person charged with an offence has the rightto be tried within a
    reasonable time.

[22]

The
    first step in a s. 11(b) analysis is a determination of whether the delay at
    issue is of sufficient length to raise a question as to its reasonableness. The
    period to be scrutinized is the time elapsed from the date of the charge to the
    end of the trial. In this context, charge means the date on which an
    information is sworn or an indictment is preferred. In the current case, it is
    this analysis that is determinative of the outcome. Assessing when the accused
    is actually charged is the first step in measuring the length of any
    potential delay. If the length of the delay is unexceptional, no inquiry is
    warranted and no explanation for the delay is called for, unless the applicant
    is able to raise the issue of reasonableness of the period by reference to
    other factors, such as prejudice:
R. v. Morin
, [1992] S.C.J. No. 25,
    at paras. 32-36.

[23]

If
    the length of the delay raises an issue as to its reasonableness, it must then
    be determined whether this period is unreasonable having regard to the
    interests s. 11(b) seeks to protect, the explanation for the delay, and the
    prejudice to the accused:
R. v. Morin
, at para. 32.

[24]

The standard of review for the application of the
Morin
factors and the characterization and allocation of various periods of time in a
    s. 11(b) analysis is correctness:
R. v. Khan
,
2011 ONCA 173,
277 O.A.C. 165, at para. 18,
    leave to appeal refd [2011] S.C.C.A. No. 195;
R. v. Schertzer
,
2009 ONCA 742
, 255 O.A.C. 45, at para. 71,
    leave to appeal refd [2010] S.C.C.A. No. 3.

[25]

The trial judge held that s. 11(b) refers to any person
charged
with an offence, and therefore concluded that the time for assessing delay for
    the purposes of a s. 11(b) analysis runs from the date of the laying of the
    first information. As a result, the trial judge found that the constitutional
    clock in this case ran from the date of the laying of the first information in
    1987 until trial on the indictment that was preferred in 2010.

[26]

The time frame to be considered in computing trial within a
    reasonable time generally runs only from the moment a person is charged. A
    person is charged when an information is sworn or an indictment is preferred.
    Thus, delays occurring in the pre-charge period, including in the investigatory
    or pre-charge stage, are not subject to analysis under s. 11(b):
R. v.
    Carter
, [1986] 1 S.C.R. 981, at paras. 11, 13;
R. v. Kalanj
, [1989]
    1 S.C.R. 1594, at para. 17;
R. v. Morin
, at para. 35.

[27]

The trial judge did not misstate the law with respect to
    when the constitutional clock in a s. 11(b) analysis begins to run. However,
    the conclusion that the laying of an information is the beginning of the period
    to be considered under s.11(b) is not determinative of whether the constitutional
    clock stopped running upon the respondents discharge in 1989, and therefore
    whether the gap period is to be considered in the s. 11(b) analysis.

[28]

In cases where an accused proceeds to trial, s. 11(b)
    protects against delay until the trial is concluded. This is because, while the
    case is still pending, a determination of the accuseds guilt or innocence has
    not occurred, and the accused is therefore subjected to stress and anxiety. The
    stigma of being an accused ends when the saga of a trial is at an end and the
    decision is rendered:
R. v. Rahey
, [1987] 1 S.C.R. 588, at para. 40.

[29]

But what of cases where an accused who has been charged does
    not proceed to trial? Put differently, in what circumstances other than those
    where an acquittal or conviction has been entered, will the constitutional
    clock stop running for the purposes of s. 11(b)?

[30]

In
    my view, the trial judge erred in answering this question by relying on the decision
    of this court in
R. v. Antoine
, and a case of the High Court citing
Antoine
,
Re Garton and Whelan
. The Supreme Courts jurisprudence on s. 11(b)
    has evolved significantly since the cases relied on by the trial judge were
    decided. A close examination of the more recent Supreme Court cases of
R.
    v. Kalanj
and
R. v. Potvin
, supports the conclusion that the
    gap period should not be included in the s. 11(b) analysis. These cases
    explain that s.11(b) protects against the harms that result from post-charge
    delay but not against the similar harms caused by pre-charge or appellate
    delay.

(i)

R. v. Antoine
and
Re Garton and Whelan

[31]

R.
    v. Antoine
is a 1983 decision of this court. The accused had been charged
    with fraud. Eleven months after he was charged, the indictment was quashed by
    the trial judge because of a perceived defect in the name of the victim. Six
    days later, a second indictment was sworn alleging the same offence, but curing
    the defect. A total of 26 months elapsed from when the first information was
    laid and the accuseds trial date.

[32]

Martin
    J.A. held that, in determining whether an accuseds s. 11(b) rights were
    violated, the court should examine the entire period between the laying of the
    initial information and the trial of the accused: at para. 25. The balance of
    the courts reasons consisted of a review of the factors that ought to be
    considered in s. 11(b) applications, and the application of the factors. Ultimately,
    the court concluded that no violation of s. 11(b) had occurred.

[33]

While
    the court in
R. v. Antoine
stated that the preferable approach is to
    examine the entire period after the laying of the first information, it also
    found that the defects in the first indictment were technical in nature, did
    not result in prejudice to the accused and likely could have been cured through
    amendment.

[34]

The
    gap in
Antoine
was a period of only six days between the time the
    first information was quashed and the second, more particularized information
    was sworn. For all practical purposes, this was a single proceeding. Indeed,
    this is how the decision was interpreted when it was considered by this court in
R. v. Padfield
, [1992] O.J. No. 2813 (C.A.).

[35]

In
Padfield
the accused was initially charged with two counts of indecent
    assault and was committed to stand trial on the charges. A month later the
    Crown presented an indictment containing three charges. The trial court had
    stayed two of the three charges on the basis of unreasonable delay and directed
    that the third charge proceed to trial. The appeal court concluded that all
    three charges in the second indictment had their genesis in the first
    information, and stayed the third charge. The court referred to
Antoine
as authority that where the charge in a second information is no more than an
    amended version of the initial charge, the constitutional clock must tick from
    the laying of the first information.

[36]

Re
    Garton and Whelan
is a 1984 decision of the Ontario High Court of Justice,
    and arose in the context of an application by a private person under the
Criminal
    Code
for the consent of a justice to prefer an indictment. The accused had
    been discharged following a preliminary inquiry into a charge of murdering his
    spouse. The Crown had refused to prefer an indictment and seven years later,
    the family of the deceased applied for judicial consent to lay a preferred
    indictment.

[37]

The
    application judge, Evans C.J.H.C., after a thorough analysis of all the
    evidence provided in support of the application, declined judicial consent.
    Given this conclusion, he noted that it was unnecessary to consider the s.
    11(b) argument raised by the accused, however he proceeded to do so. He
    concluded that the accuseds s. 11(b) rights should be considered and had in
    fact been impaired.

[38]

There were three important factors identified by the court.
    First, the accused was aware throughout the intervening period of the ongoing
    efforts to have him prosecuted. Second, there had been no change in the
    evidence against the accused. Evans C.J.H.C. noted that this was not a case
    where a continuing investigation by the authorities had unearthed strong new
    evidence inculpating the respondent, and he characterized this as a
    circumstance to be taken into account in determining whether a trial of the
    respondent at this late stage would be reasonable. Third, the application judge
    found that the accused would suffer real prejudice should a trial be heard
    after the delay. Prejudice could be presumed in a case that would rely on
    witnesses fading memories.

[39]

Re
    Garton and Whelan
was referred to by this court in
R. v. G.W.R
.,
    [1996] O.J. No. 4277 (C.A.), a case involving an appeal from a decision staying
    charges under sections 7 and 11(b) of the
Charter
. There was evidence
    that the Crown had withdrawn a charge against the accused for contributing to
    juvenile delinquency many years earlier, and the accused relied on the entire
    period for his s. 11(b) argument. The court noted that there was nothing in the
    record to show that the earlier charge related to the same conduct that formed
    the basis of the later sexual assault charges against the accused. The court
    went on to state that there was no indication that once the purported charge of
    contributing was withdrawn, the respondent believed that he was still under
    investigation or in jeopardy in relation to this same conduct, and there was no
    evidence of oblique motive or bad faith on the part of the Crown in its
    discretion to withdraw the contributing charge. The court concluded that, accordingly
    the time from the withdrawal of the charge until the laying of the new charges
    did not continue to run for the purposes of s. 11(b) of the
Charter
.
    The court contrasted the situation with
Re Garton and Whelan
where
    although the accused was discharged at the preliminary inquiry he was aware
    that the police and the deceaseds parents were actively continuing the
    investigation (at para. 10). While this court did not dispute the authority of
Re Garton and Whelan,
it interpreted the case to require some
    knowledge on the part of the accused that there was an active investigation
    underway, before the s. 11(b) clock would run in the absence of active charges.

[40]

As
    observed,
R. v. Antoine
and
Re Garton and Whelan
can be interpreted
    in such a way that they would not apply to the circumstances of this case. The respondent
    however relies on the fact that the Supreme Court of Canada in
R. v. Kalanj
referred to these decisions
,
albeit with little analysis, and stated:
    these cases support the proposition that pre-charge delay is not relevant
    under s. 11(b), by holding that the time commences to run from the date the
    original information was sworn: at para. 20. To the extent that this
    statement, which was made in
obiter
and without analysis of the point,
    may appear to endorse a broader interpretation of these cases, I would agree
    with the appellant that any such interpretation has been overtaken by the
    courts reasoning in
R. v. Potvin
.

(ii)

R. v. Kalanj
and
R. v. Potvin

[41]

In
    my view, the Supreme Courts reasoning in its jurisprudence holding that pre-charge
    delay and appellate delay are not covered by s. 11(b) is much more helpful in
    answering the question of when the constitutional clock in s. 11(b) should be
    deemed to start and stop.

[42]

In
    considering the scope of the protection of s. 11(b), the Supreme Court
    determined in
R. v. Kalanj
that
    its protection does not extend to the period before a person is charged with an
    offence (to pre-charge delay). This means that although a person charged with
    an offence can claim the protection of s. 11(b), the delay to be considered and
    the resulting impact on the accuseds rights will not include delay that
    occurred in the investigation of the offence before the charges were laid.
    Extending s. 11(b) to the pre-charge period would be unworkable. As McIntyre J.
    observed in
R. v. Kalanj
at
    para. 19, the courts are not equipped to fix a time limit for the investigation
    of a given offence as the investigatory period is unpredictable, circumstances
    will differ from case to case and much information gathered in an investigation
    must, by its very nature be confidential.

[43]

The
    focus of s. 11(b) is accordingly on the prejudice that flows from unreasonable
    delay in being tried on criminal and quasi-criminal charges:
R. v.
    Kporwodu
(2005), 75 O.R. (3d) 190 (C.A.), at para. 162. That is evident
    from the bulk of s. 11(b) jurisprudence that focusses on unreasonable delay in
    the trial process due to institutional delay and Crown delay. From this one
    might conclude that the protection of s. 11(b) protects the interests of a
    person who has been charged,
and
is subject to the processes of the
    court.

[44]

In
    my view, the reasoning of the Supreme Court in
R. v. Potvin,
wherein the Court concluded that s. 11(b) does not
apply
    to appellate delay, supports such an interpretation.

[45]

In
Potvin,
the accused had been tried and acquitted and the acquittal was
    the subject of a Crown appeal. He asserted that there had been unreasonable
    delay in the appellate process and sought a remedy under s. 11(b). The question
    was whether he was a person charged with an offence during the prosecution of
    the appeal. Sopinka J., after referring to
Kalanj
and the principle
    that pre-charge delay was outside the scope of s. 11(b), stated the specific
    question before the court as whether the consequences of delay resulting from
    an appealare distinguishable from pre-charge delay and can be attributed to
    the existence of a formal charge: para. 62. He answered that question in the
    negative and stated, at para. 63:

Clearly, during the period after an acquittal and the service
    of a notice of appeal, the person acquitted is not a person charged. No
    proceeding is on foot which seeks to charge the person acquitted. Upon the
    appeals being filed there is a possibility, the strength of which will vary
    with each case, that the acquittal will be set aside and the charge will be
    revived. The plight of the acquitted person is that of one against whom
    governmental action is directed which may result in a charge. In this respect
    the former accused is like the suspect against whom an investigation has been
    completed and charges are contemplated awaiting a decision by the prosecutor

[46]

Accordingly, the reasoning of the court in
R.
    v. Potvin
suggests that the period that is relevant for a s. 11(b)
    analysis is the period when there is a proceeding on foot; that is, there
    must be active charges outstanding against the person. In the words of Sopinka
    J., s. 11(b) does not apply unless the restriction of the interests which the
    subsection protects results from an actual chargethus, [c]ircumstances which
    produce the same consequences do not qualify for the protection of this
    provision unless those consequences proceed from a formal charge: at para. 62.
R. v. Potvin
therefore
suggests
    that charges must be pending and not anticipated or spent in order to attract
    the protection of s. 11(b).

(iii)

Conclusion

[47]

Section
    11(b) serves to protect the charged persons right to freedom and to be dealt
    with fairly and without delay within the court system. The objective is to have
    an efficient system for dealing with accused persons. The ambit of s. 11(b)
    does not extend on a societal level to the speedy investigation of crime.
    Extending the protection of s. 11(b) to persons who are not actively charged
    with an offence would not advance the objectives of this protection.

[48]

There
    is a caveat however. There are circumstances in which unilateral state action
    may control whether or not charges are withdrawn or relaid. In such
    circumstances, where the formal charge has been withdrawn with the intention of
    laying a new charge, or an information has been quashed with a new information
    laid, it makes sense to consider the entire period from when the first charges
    were laid as part of the s. 11(b) analysis. In such circumstances, the person,
    although not formally charged during the gap period, remains subject to the
    judicial process, and his s. 11(b) interests will continue to be affected by
    the knowledge or expectation that further charges are imminent. It is
    reasonable to conclude that he remains subject to the process of the court.
    That is precisely what occurred in
R. v. Antoine
.

[49]

For
    all of these reasons, I would interpret s. 11(b) as being engaged during any
    period that an accused person is in fact subject to charges, or when a person no
    longer actively charged remains subject to the very real prospect of new
    charges.

[50]

In
    this case, as a practical matter, the respondent was not subject to charges between
    the time of his discharge in 1989 and when the indictment was preferred in 2010.
    There was nothing in the court system while the science of DNA analysis
    progressed, or while the police continued their investigation. Moreover, the
    respondent was unaware of any ongoing investigation. This is a situation where
    it was appropriate to stop the clock for the purpose of assessing the
    respondents s. 11(b) rights to a trial within a reasonable time. While
    the relevant period for s. 11(b) purposes initially started when the respondent
    was first charged in 1987, it stopped upon his discharge in 1989. It began to
    run again only when the indictment was preferred in 2010.

[51]

Accordingly,
    I conclude that the trial judge erred in including the gap period between the
    respondents discharge on the original charges and when the indictment was
    preferred for the purpose of the delay analysis under s. 11(b). It was
    acknowledged that this was the only period of relevance to the stay
    application, as there was no unreasonable delay in the processing of the
    original charges and in the progress of the charges following the preferred
    indictment. As such, the s. 11(b) application ought to have been dismissed.

[52]

This
    conclusion is sufficient to dispose of the appeal. The trial judges treatment
    of the question of prejudice to the respondent and her stay analysis, are only
    issues once a determination is made that there was a delay that is contrary to
    s. 11(b).  Having found there was no such delay, it is unnecessary to consider
    the two other issues raised by this appeal.

[53]

Finally,
    I note that, while it was acknowledged in the pre-trial motion and on this
    appeal that there was no evidence of actual prejudice to the respondent, the
    respondent and the trial judge referred to the
possibility
that the passage
    of time since the events in question could have an impact on the trial. One of
    the complainants is now deceased, and another was not cross-examined at the
    preliminary inquiry about the beer bottle found in her home, which only became
    significant as a result of the recent DNA evidence. Whether and the extent to
    which these and other factors arising from the passage of time might affect the
    respondents right to make full answer and defence, and trial fairness, should
    be addressed in context in the course of the trial, including, through the
    respondents s. 7 application, which remains outstanding.

DISPOSITION

[54]

For
    these reasons, I would allow the appeal and dismiss the application to stay the
    charges against the respondent under s. 11(b) of the
Charter
. I would
    refer the matter back to the trial judge for trial, including the disposition
    of the respondents s. 7 application.

Released: July 9, 2014

KMvR                                                                 K.
    van Rensburg J.A.

I agree S.T. Goudge J.A.

I
    agree G. Pardu J.A.

[1]

These reasons will not
    address the s. 7 issues, as they have not been determined, and were not
    addressed in the trial judges decision, or on this appeal.