R. v. Christie

R. v. Christie Court Supreme Court Date 2001-02-09 Citation 2001 NSSC 26 Docket CR 162972 Judge/Registrar/Adjudicator Cacchione, Felix (Honourable Justice) Document Type Decision Relations Library Sheet - R. v. Christie - 2001 NSSC 26 - 2001-02-09 - Library Sheet Decision Content CR 162972 IN THE SUPREME COURT OF NOVA SCOTIA [Cite as : R. v. Christie, 2001 NSSC 26] BETWEEN: Dr. William H. Michael Christie Applicant - AND - HER MAJESTY THE QUEEN Respondent DECISION ON APPLICATION FOR A STAY OF PROCEEDINGS HEARD: at Halifax, Nova Scotia before the Honourable Justice Felix A. Cacchione on February 5th, 2001. DATE: February 9th, 2001 WRITTEN RELEASE OF DECISION: February 9th, 2001 COUNSEL: Joel E. Pink, Q. C. and Shane Parker, a/c, for the Applicant Ronald J. MacDonald, for the Crown Date: February 9th, 2001 Docket: CR 162972 CACCHIONE, J.: [1] The applicant is charged with two counts of sexual assault alleged to have occurred in 1997 and 1998. He brings this application seeking a stay of proceedings on the basis that his right, under s.11(b) of the Canadian Charter of Rights and Freedoms, to be tried within a reasonable time has been infringed. [2] The relevant time period for a s.11(b) analysis is from the date of the charge to the end of the trial. R. v. Morin (1992), 71 C.C.C. (3d) 1 at page 14. In the present case the relevant time frame is from November 24th, 1998 when the information was sworn until February 12th, 2001 which is the date set for the commencement of the applicant’s trial. An inquiry into the issue of unreasonable delay should only be undertaken if the period is of sufficient length to raise an issue as to its reasonableness. If the length of the delay is unexceptional then 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 (supra), page 14. In the present case a delay of 27 months does warrant an inquiry. [3] In R. v. Morin the late Justice Sopinka set out the approach to be followed when a s.11(b) infringement is alleged. At page 13 he stated: ...the period to be scrutinized is the time elapsed from the date of the charge to the end of the trial: See R. v. Kalanj (1989), 48 C.C.C. (3d) 459, [1989] 1 S.C.R. 1594, 70 C.R. (3d) 260. The length of this period may be shortened by subtracting periods of delay that have been waived. 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. [4] What must be done is to assess the reasonableness of the overall lapse of time. It may be that each individual period when isolated from others may constitute a reasonable delay, however the total period may nonetheless be unreasonable for the purpose of s.11(b). R. v. Conway (1989), 49 C.C.C. (3d) 289 S.C.C. p. 307. It is clear that on an application such as this the court is not to simply apply a mathematical or administrative formula to determine whether the delay is unreasonable. What the court must do is to determine judicially whether the delay is unreasonable. This is done by balancing the interests which the system is designed to protect against factors which inevitably lead to delay or otherwise cause delay. [5] Section 11 (b) has two purposes. The primary purpose is protection of the individual rights of the accused and the secondary purpose is the societal interest in bringing those charged with offences to trial. The individual rights which this 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. In R. v. Morin Justice Sopinka stated as follows at page 12: The right to security of the 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 pretrial 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 fortunate of its citizens who are accused of crimes are treated humanely and fairly. In this respect trials held promptly enjoy the confidence of the public. As observed by Martin J.A. in R. v. Beason (1983), 7 C.C.C. (3d) 20, 1D.L.R. (4th) 218, 36 C.R. (3d) 73 (Ont. C.A.): “Trials held within a reasonable time have an intrinsic value. The constitutional guarantee enures to the benefit of society as a whole and, indeed, to the ultimate benefit of the accused... (p. 41). In some cases, however, the accused has no interest in an early trial and society’s interest will not parallel that of the accused. There is, as well, a societal interest that is by its very nature adverse to the interests of the accused. In Conway, a majority of this court recognized that the interests of the accused must be balanced by the interests of society in law enforcement. This them was picked up in Askov in the reasons of Cory J. who referred to “a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law” (p. 474). As the seriousness of the offence increases so does the societal demand that the accused be brought to trial. The role of this interest is most evident and its influence most apparent when it is sought to absolve persons accused of serious crimes simply to clean up the docket. [6] The factors which must be examined in this analysis are as follows: 1. The length of the delay; 2. Waiver of time periods; 3. Reasons for the delay, including (a) inherent time requirements of the case; (b) actions of the accused; (c) actions of the Crown; (d) limits on institutional resources; and (e) other reasons for the delay; and 4. Prejudice to the accused. [7] It is with this framework in mind that the present application will be examined. 1. The length of the Delay [8] As previously noted the delay in the present case is approximately 27 months and does warrants inquiry. 2. Waiver of time periods [9] In R. v. Morin Justice Sopinka stated at page 15: ..If by agreement or other conduct the accused has waived in whole or in part his or her rights to complain of the delay, then this will either dispose of the matter or allow the period waived to be deducted. This court has already stated that in order for an accused to waive his or her rights under s.11(b), such waiver must be clear and unequivocal, with full knowledge of the rights the procedure was enacted to protect and of the effect that waiver will have on those rights: Korponey v. A.-G. Can. (1982), 65 C.C.C. (2d) 65 at p. 74, 132 D.L.R. (3d) 354, [1982] 1 S.C.R. 41; R. v. Clarkson (1986), 25 C.C.C. (3d) 207 at pp, 217-9, 26 D.L.R. (4th) 493, [1986] 1 S.C.R. 383; Askov, supra at pp. 481-2). Waiver can be explicit or implicit. If the waiver is said to be implicit, the conduct of the accused must comply with the stringent test for waiver set out above. As Cory J. described it in Askov, supra (at p. 481): ...there must be something in the conduct of the accused that is sufficient to give rise to an inference that the accused has understood that he or she had a s. 11(b) guarantee, understood its nature and has waived the right provided by that guarantee. [10] In Regina v. Smith (1989), 52 C.C.C. (3d) 97 S.C.C. at page 109 Sopinka J. speaking for a unanimous court stated: ...Agreement by an accused to a future date will in most circumstances give rise to an inference that the accused waives his right to subsequently allege that an unreasonable delay has occurred. While silence cannot constitute waiver, agreeing to a future date for a trial or a preliminary inquiry would generally be characterized as more than silence. Therefore, absent other factors, waiver of the appellant’s s.11(b) rights might be inferred based on the foregoing circumstances. [11] In the present case the accused appeared with counsel at his arraignment on November 24th, 1998. No disclosure to the defence had been made at this stage and the prosecution had yet to determine whether it was proceeding summarily or by indictment. The matter was adjourned to February 9th, 1999 for election and plea. [12] Although this delay of two and one half months before an election and plea could be entered may at first glance appear unreasonable it must be viewed in light of the particular circumstances of this case. The case arose in the Sheet Harbour area. At that time the Provincial Court only sat in Sheet Harbour every second Tuesday. Crown counsel was located in Antigonish, defence counsel was based in Halifax and the investigators were stationed in Lower Sackville. [13] This delay is understandable and can be considered as one of the inherent time requirements of the case. Neither the Crown nor the defence can be faulted for this adjournment and the delay should not be attributed to either party. [14] On February 9th, 1999 both Crown and defence counsel appeared in court and the case was adjourned to March 23rd, 1999 for election and plea. This adjournment for a further six week period was required because the defence had not received the disclosure it had sought from the Crown. In R. v. Stinchcombe, [1991] 3 S.C.R. 326 the Supreme Court of Canada held that initial disclosure should occur before an accused is called upon to elect the mode of trial or plead. Counsel for the accused should not be faulted for not entering an election or plea on February 9th, 1999 before he had received the disclosure materials which he was seeking. The Crown was aware as early as December 14th, 1998 of the defence request for disclosure. The delay in obtaining the required disclosure materials is attributable solely to the actions of the investigators and must be shouldered by the prosecution. The accused did not waive his right to allege an unreasonable delay. [15] The next period to be considered is from March 23rd, 1999 to November 23rd, 1999, a period of eight months. It would appear from the materials submitted and on file that this was the first date available to both the court and counsel. A factor to be considered in examining this time span is that the preliminary inquiry was being held in a community where the Provincial Court sat only twice each month. As well a full day of court time was requested for the hearing. This delay may be characterized as an institutional delay. Counsel for the applicant in his written response to the Crown’s brief refers to this period of eight months as the “standard time frame to schedule a preliminary hearing in Sheet Harbour Provincial Court”. [16] In R. v. Morin (supra) Sopinka J. at page 21 stated: ...It is appropriate for this court to suggest a period of institutional delay between eight and 10 months as a guide to Provincial Courts. [17] The eight month delay from March 23rd to November 23rd, 1999 falls within the guidelines set out by the Supreme Court of Canada. This time span will be considered as a delay caused by limits on institutional resources. [18] The next time span to consider is the period from November 23rd, 1999 to January 11th, 2000. This delay in the completion of the preliminary inquiry was as a result of the Crown’s request for an adjournment due to the unavailability of an expert witness. On November 6th, 1999 prior to the commencement of the preliminary inquiry, Crown counsel wrote to the defence indicating that its expert witness had been selected to travel to Gambia to help that country establish a proper health care system. Crown counsel suggested to the defence that the two complainants and a third witness be called to testify on November 23rd, 1999 and that the matter then be adjourned to allow the expert to testify at some later date. No response to this suggestion is noted in the materials on file. [19] Counsel for the applicant argues that any motion to oppose the adjournment would have been fruitless. It is submitted that any consent, expressed or implied, amounted to “mere acquiescence in the inevitable” and ought not to be held against the accused. [20] A review of the preliminary inquiry transcript discloses that the granting of an adjournment to allow the Crown to call its expert witness was not a forgone conclusion. The granting of an adjournment was in the discretion of the presiding Provincial Court Judge and Crown counsel was aware of this when he advised the court of the Crown’s intention regarding the conduct of the inquiry. The preliminary inquiry transcript at page 5 discloses the following comments. MR. BOLO: (Crown)...for that reason the Crown will be seeking to present the three witnesses today and then to adjourn the balance of the Preliminary Inquiry. If that is granted of course Your Honour will be seized with the matter and the matter will have to be set over to another Sheet Harbour date when you’re available but I simply thought I’d bring that to your attention. THE COURT: ...Mr. Pink do you have any comment with respect to the absence of Dr. MacLaughlin at this time? MR. PINK: Yes, I have advised My Learned Friend that I am willing to put the matter of the Preliminary hearing over to some day down the road but I also advised him that it is necessary that we hear the evidence of Dr. MacLaughlin. [21] In argument before this court the applicant submitted that this delay was the Crown’s fault. Reference was made to the preliminary inquiry as being “the Crown’s show to orchestrate”. The preliminary inquiry transcript establishes that the granting of the adjournment was not a fait accompli nor was it opposed by the defence. Rather the defence was as interested as the Crown in hearing the evidence of the expert witness and was willing to have the preliminary inquiry adjourned in order to do so. This is obvious from the fact that it was made known to the defence on November 6th, 1999 that the expert would be leaving the country before the commencement of the preliminary inquiry. No objection was voiced about the delay that this would occasion. I am left to conclude that the defence consented to this delay of six weeks from November 23rd, 1999 to January 11th, 2000 and waived its right to allege an unreasonable delay for this period. [22] The next time frame is the period from January 11th, 2000 to February 22nd, 2000. Counsel for the applicant concedes that there was an expressed waiver of this delay. [23] On February 22nd, 2000 the applicant was discharged at the conclusion of the preliminary inquiry. On March 22nd, 2000 Crown counsel advised the defence that the Crown would be preferring an indictment under s.577(b) of the Criminal Code and fixed April 6th, 2000 as the date for the accused to appear in the court. [24] The applicant argues that this delay of six weeks is attributable to the Crown as the applicant was in no position to expedite the matter. The respondent Crown had 30 days from the date of the discharge to determine its position. The preferring of an indictment, once an accused has been discharged, can only be done with the consent of the Attorney General. This decision-making and procedural process takes some time. This delay of 30 days can best be characterized as an inherent time delay which is not attributable to either party. [25] The two-week delay between March 22nd and April 6th, 2000 when the matter was first docketed in the Supreme Court was in part to accommodate the schedule of both Crown and defence counsel as evidenced by Exhibit K attached to defence counsel’s affidavit. Exhibit K is a letter to defence counsel from Crown counsel dated March 22nd, 2000. In this letter Crown counsel confirms the gist of a previous telephone conversation between the two counsel regarding the preferring of an indictment and the docketing of the case in Supreme Court. Crown counsel states: ...I confirm your advice that we can have this matter spoken to at Crownside on April 6, 2000. [26] It would appear that the date of April 6th, 2000 was chosen because it was convenient to both the defence and the Crown. I am unable to find that this delay of two weeks was as a result of an implied waiver by the applicant. [27] At Crownside on April 6th, 2000 the dates of November 20th to 23rd, 2000 were set for trial. The transcript of that proceeding discloses that prior to court being opened Crown and defence counsel discussed the estimated time required for trial, checked for available dates with the scheduling coordinator present in court and settled on November 20th to 23rd as being dates convenient to all parties. When court opened, the court was advised that the re-election and the entering of not guilty pleas would be done prior to the commencement of the trial on November 20th. The postponement of the re-election and entering of pleas was done to accommodate the accused’s absence on April 6th. [28] It is unclear from the transcript whether the November 20th to 23rd dates were the first available dates or dates that were most convenient to counsel. The procedure of fixing trial dates beforehand, off the record, is problematic in that it makes the analysis of institutional delay and waiver difficult if not impossible. The task would be simplified if the court record clearly showed what available dates were offered and what dates were chosen. This type of information goes to the heart of the issue in the present application. I adopt the words of McClung J.A. in R. v. Holt (1991), 117 A.R. 218; 2 W.A.C. 218 at page 222 where he stated: ..the history of the case should be presented to the court documented by transcripts (where such transcripts are available) as opposed to counsels giving their memories (often diverging) of why earlier remands or adjournments were granted. [29] On the limited record before me I am unable to determine whether earlier trial dates were available and offered, whether the dates chosen were set simply to accommodate the schedule of counsel or whether the dates set were the first available dates when all parties could attend. Accordingly I cannot find that there was an expressed or implied waiver of this seven month delay. [30] This delay will be described as an inherent time requirement necessary in order for both sides to be ready for trial. The delay falls within the six to eight month range described by Corey J. in R. v. Askov (1990), 59 C.C.C. (3d) 449 at page 490 as being “the outside limit of what is reasonable” for a post committal delay. [31] The last time span to be examined is the period between November 20th, 2000 and February 12th, 2001. This delay of approximately 11 weeks is directly attributable to the actions of the Crown. A brief chronology of events is necessary to support this finding. On March 22nd, 2000 the Crown advised the defence that it would be preferring an indictment. On April 3rd, 2000 the police interviewed and took statements from two new complainants. The preferred indictment was presented to the Court at Crownside on April 6th, 2000 and the dates of November 20th to 23rd, 2000 were fixed for trial. Mr. Bolo, the Crown Attorney who was handling the prosecution died suddenly on May 18th, 2000. On June 21st, 2000 the file was transferred from the Public Prosecution Service’s office in Antigonish to the Special Prosecutions Unit of the Public Prosecution Service in Halifax. A new Crown Attorney was assigned to prosecute this case. On July 11th, 2000 the investigators delivered the statements taken on April 3rd, 2000 and other new materials to the Crown Attorney in the Special Prosecutions Unit then assigned to this file. Disclosure of these new materials was not made to the defence. The file appears to have languished in the Special Prosecutions Unit until October 11th, 2000 when it was returned to the regional office in Antigonish from where it had originated. The present Crown Attorney Mr. Ron MacDonald then assumed carriage of the prosecution. On November 2nd, 2000 18 days before the scheduled commencement of this trial Mr. MacDonald forwarded to the defence the new materials and indicated that based on the newly disclosed information the Crown would be seeking to introduce similar fact evidence at trial. [32] On November 14th, 2000 Davison J., who was scheduled to preside at this trial, heard a defence application for exclusion of this evidence due to late disclosure. Davison J. ruled that the accused’s rights under s. 7 and 11(d) of the Charter had been violated but concluded that the appropriate remedy was an adjournment of the trial and not exclusion of the evidence. Justice Davison did not rule on the admissibility of the evidence but only that the evidence should not be excluded as a remedy for the Charter violation. The trial was then adjourned from November 20th, 2000 to February 12th, 2001. [33] Crown counsel candidly acknowledged before Davison J. that the adjournment was due to the actions of the Crown in not disclosing the materials once they were in the possession of the Crown. This delay is attributable solely to the Crown. 3. Reasons for Delay [34] (a) Inherent time requirements - Regardless of the nature of the charge or where the case is heard some delay will always be inevitable. Delay attributable to the inherent time requirements of a case will be the period of time needed for preliminary matters prior to both sides being ready for trial. Delay attributable to this factor will generally be viewed as neutral time and should not be attributed to either party. See R. v. Allen (1996), 110 C.C.C. (3d) 331. Each case must be dealt with on its own merits in assessing the inherent time requirements of a case. [35] In the present case a preliminary inquiry was held and the accused was discharged at its conclusion. A direct indictment was preferred and a trial date was set. This encompassed a delay of seven months which I consider to be neutral and attributable to neither party as it was an inherent time requirement of the trial. Although on its face the case does not appear to be factually complicated, both parties have indicated that expert evidence will be called. This would add to the inherent time requirements of the case. [36] (b) Actions of the Accused; Delays occasioned by the actions of the accused must be taken into account when assessing the reasonableness of the total delay. In this category there are no actions of the accused which contributed to the delay. The accused did not seek any of the adjournments and brought no motions such as change of venue or severance applications. [37] (c) Actions of the Crown: In this category I consider the period of six weeks from February 9th, 1999 to March 23rd, 1999 when disclosure to the defence had not been completed due to the actions of the investigators. The defence was not at this stage in a position to know the case it had to meet and therefore not in a position to enter an election or a plea. I also consider as a delay attributable to the Crown the 11 week period between November 20th, 2000 and February 12th, 2001. This delay was caused by the Crown’s failure to disclose relevant material in a timely fashion. [38] (d) Limits on Institutional Resources: As noted previously this case began in the Provincial Court sitting in Sheet Harbour. The court sat in this location only two days each month. The jurisdiction of the court covered a large geographical area. A full day of court time was requested for the preliminary inquiry. Counsel for the applicant acknowledged that a period of eight months was the standard time frame to schedule a preliminary inquiry in the Sheet Harbour Provincial Court. This eight month delay also falls within the eight to ten month guideline for the Provincial Courts set out by the Supreme Court of Canada in R. v. Morin. 4. Prejudice to the Accused [39] In R. v. Askov the Supreme Court of Canada placed the onus on the Crown to demonstrate that the delay caused no prejudice to the accused. Cory J. states at page 484: (iv) Prejudice to the Accused: There is a general, and in the case of very long delays an often virtually irrebuttable presumption of prejudice to the accused resulting from the passage of time. Where the Crown can demonstrate that there was no prejudice to the accused flowing from a delay, then such proof may serve to excuse the delay. It is also open to the accused to call evidence to demonstrate actual prejudice to strengthen his position that he has been prejudiced as a result of the delay. I believe that the factors that I have set out in large measure are substantially the same as those enunciated by L’Heureux Dubé J. in Conway and Sopinka J. in Smith. The aim of this test is to provide a method based upon the underlying purposes of s.11(b) which will permit courts to balance the applicable substantive factors in a consistent manner. It bears repeating that the balance between the explicit, individual protection and the implicit, societal aspect of s.11(b) is addressed by placing the onus on the Crown to demonstrate that any action of the accused deliberately caused the delay or constituted waiver, or that the delay caused no prejudice to the accused. [40] The law provides that prejudice to an accused may be inferred as well as proven. The longer the delay in the proceedings, the easier it may be for a court to infer prejudice simply as a result of the passage of time. In circumstances in which prejudice is not inferred and is not otherwise proven, the basis for the enforcement of the individual right is seriously undermined. [41] It is the duty of the Crown to bring the accused to trial: See Askov, (supra) at page 478, 480 - 482. The purpose of s.11(b) is to expedite trials and minimize prejudice and not to avoid trials on the merits. Any action or inaction by an accused which is inconsistent with a desire for a speedy trial is a factor which the court must consider in assessing the degree of prejudice, if any, that an accused has suffered as a result of delay. [42] In the present case the total pre-trial delay is 27 months. Eleven months of this is post committal delay. None of the post committal delay can be attributed to the defence. Only three months of the total delay can be deducted because of an expressed or implied waiver by the defence. The remaining 24 months of delay is the result of inherent time requirements, limits on institutional resources and the actions of the Crown. [43] In Askov (supra) the Supreme Court of Canada established guidelines for what can be considered reasonable delay. In Askov Cory J. at page 490 stated: ...a period of delay in a range of some six to eight months between committal and trial might be deemed to be the outside limit of what is reasonable. [44] In the present case the post committal delay is 11 months, well in excess of what is reasonable. [45] In Morin the Supreme Court of Canada set eight to ten months as a guideline of what would be a reasonable delay in Provincial Court. The present case began in Provincial Court on November 24th, 1998 and concluded there 15 months later on February 22nd, 2000. Of this 15 month delay, only three months can be attributed to waivers by the defence. This leaves a delay of 12 months which is longer than the period suggested by the Court in Morin as reasonable. [46] Prejudice in this case can be inferred by the prolonged delay in bringing the matter to trial. The delay is some five months longer than what the Supreme Court of Canada has deemed to be reasonable. [47] It should be noted that there is no legal obligation on an accused to assert the right to be tried within a reasonable time. It is the duty of the Crown to bring the accused to trial. [48] There is, as well, in this case evidence of actual prejudice. The accused is a family physician in a small rural community. He has practised and lived in this community for a long time and has in his words “delivered a whole generation in this community”. Approximately 25% of his two to three thousand patients are children. [49] Evidence of prejudice to the accused’s liberty interest is found in the conditions attached to his undertaking given to a peace officer whereby he was, among other things, restricted from leaving the jurisdiction and not permitted to perform any medical examination on any male patient under the age of 18 years unless in the presence of another adult, nurse or parent. [50] Other restrictions on the accused’s liberty interests were placed on him by the College of Physicians and Surgeons which required that he post a large sign in his office saying that he would not examine males without an adult present. [51] There has been prejudice to the accused’s security interest as well. In R. v. Mills (1986), 26 C.C.C. (3d) 481, 29 D.L.R. (4th) 161, [1986] 1S.C.R. 863 Lamer J. commented on the concept of security of the person as follows at page 538-39 ...In this context, the concept of security of the person is not restricted to physical integrity; rather, it encompasses protection against “overlong subjection to the vexations and vicissitudes of a pending criminal accusation.”: Amsterdam, ibid, at p.553. These 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, uncertainty as to the outcome and sanction. These forms of prejudice cannot be disregarded nor minimized when assessing the reasonableness of delay. The need for protecting the security interest of the individual accused arises from the nature of the criminal justice system and of our society. We have long recognized the need for an open and public criminal system as a vital means of ensuring respect for the integrity of the process. We also acknowledge the necessity of a free and unrestricted press. As a practical matter, however, the impact of a public process on the accused may well be to jeopardize or impair the benefits of the presumption of innocence. While the presumption will continue to operate in the context of the process itself, it has little force in the broader social context. Indeed many pay no more than lip service to the presumption of innocence. Doubt will have been sown as to the accused’s integrity and conduct in the eyes of family, friends and colleagues. The repercussions and disruption will vary in intensity from case to case, but they inevitably arise and are part of the harsh reality of the criminal justice process. Additionally, the process is adversarial and conflictual; the stress and anxiety resulting from a criminal charge is heightened by the very nature of the process. Although, to some extent, these negative consequences are unavoidable, one of the purposes of s.11(b) is to limit the impact of such forms of prejudice to the accused by circumscribing the time period within which they may occur. In other words, while some such prejudice to the accused may be seen as a cost of the very right to a hearing, a fortiori a public one, it must nevertheless be kept to a minimum by a speedy determination of criminal responsibility. Hence, in my 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. [52] Prejudice to the accused’s security interest can be found in the evidence of the accused, his wife, and Dr. Rosenberg, all of whose evidence I accept as truthful and credible. The evidence discloses that the accused is a physician and resident in a small community of five to six hundred people. His practice is located in a hospital which serves the larger community for an area covering 40 miles in either direction of the hospital. He is one of only three doctors in that community. [53] The accused was arrested at his office while seeing patients. His waiting room was full of patients waiting to see him. Several officers entered the office with a search warrant and began searching. The accused was escorted by two officers to a police car and driven to the RCMP detachment. The next morning the accused appeared in court where many court watchers, whom he knew, were present. [54] I accept that the ongoing stress and damage to reputation occasioned by the overlong exposure to the vexations and vicissitudes of pending criminal accusations has caused the accused to suffer from depression requiring both medication and psychiatric therapy. [55] There is no doubt that the accused and his family have been stigmatized by the charges, more so than most persons, because of the size of the community where they reside, the accused’s prominence in the community and the relentless media coverage of this case as evidenced in part by Exhibit 5, a package of 11 newspaper clippings. I accept that there has been a lot of rumour, speculation and gossip in the accused’s community about the allegations against him and I accept that the accused and his family are in the midst of this wherever they go. An example of this comes from the fact that one of the complainants attends the same school and is in the same class as the accused’s son. As well the sister of one of the complainants is in the same class as the accused’s daughter. [56] The stigmatization was further compounded by the College of Physicians and Surgeons’ requirement that a large sign indicating that the accused would not see male patients alone be conspicuously posted in his office. [57] The stress and anxiety suffered by the accused is real. He has been under psychiatric care since early 1999. This includes the taking of two types of anti-depressant medication and receiving psychiatric therapy. I accept that the accused did not suffer from any type of mental health problems nor did he take any anti-depressant medication prior to 1999. I accept as well Dr. Rosenberg’s diagnosis that the accused is suffering from a major depressive disorder of moderate severity which has worsened with the passage of time due to the delay in these proceedings. [58] There has been a disruption in the accused’s employment. Subsequent to charges being laid the accused continued to work at his profession, however his ability to continue working became progressively more affected by his lack of sleep, loss of appetite and inability to concentrate. The accused lost 30 to 40 pounds in the year after charges were laid. It became clear to him in the fall of 1999 that he was making errors with prescriptions and not meeting the standard of care for his patients which he had set for himself. As a result of his depression the accused was unable to continue working and in November 1999 he was granted long term disability benefits by his disability insurer. [59] The impact of the unreasonable delay on the accused’s security of the person interests are also manifested by the reduction in his income since the charges were laid. The evidence discloses that at the time charges were laid in 1998 the accused’s net yearly income was approximately $140,000.00. In 1999 his income decreased to approximately $100,000.00, and in the year 2000 his sole income was from disability insurance benefits totalling $36,000.00. [60] There is no question that being charged with sexual offences has sown doubt as to the accused’s integrity and conduct in the eyes of his family, friends and colleagues. I accept the evidence of Mrs. Christie that the family does not have the normal life it once had. What was at one time an active social life in the community and the work place has been greatly limited due to the discomfort caused by the charges hanging over their heads for in excess of two years and by the gossip in the community. The accused no longer goes out into the community. He rarely ventures out of his home for any reason. [61] The accused’s ability to make full answer and defence has also been impaired by the unreasonable delay and by the Crown’s actions in not disclosing information in a timely fashion. This delayed disclosure led to an adjournment of the trial and further delay. The accused’s rights under s.7 and 11(d) were violated by the actions of the Crown. Davison, J. ruled that the appropriate remedy was an adjournment of the trial in order to allow the defence time to prepare. [62] The defence had retained an expert of its own in preparation for the trial originally scheduled for November 20th, 2000. This trial was adjourned to February 2001 through no fault of the defence. The defence expert is no longer available to testify at the adjourned date because he is out of the country. (See Exhibit S attached to Mr. Pink’s affidavit dated January 30th, 2001.) The retention of a new expert would, of necessity, require a further adjournment of the trial. I find that the loss of the defence witness has affected the accused’s ability to make full answer and defence. A further adjournment of the trial to allow for the retention of a new expert witness would simply prolong the unreasonable delay. [63] In conclusion on the issue of prejudice I find that not only has the accused suffered the presumed prejudice caused by the passage of an unreasonable period of time, but also that he has suffered real prejudice as outlined above. [64] I am mindful of the societal interest in having a case disposed of on its merits. Should the charges be stayed on the basis of an infringement of the right to be tried within a reasonable time society will never know whether the accusations have been proven or not. The complainants’ allegations will never be tested under oath and adjudicated upon by an impartial arbiter. The accused will never have the opportunity of rebutting the allegations under oath or of vindicating himself. He will continue to bear the stigma of being accused but never formally acquitted. [65] The issue before me is to determine where the line should be drawn between conflicting interests. On the one hand stands the interests of society in bringing those accused of crimes to trial to account before the law for their conduct. On the other hand stands the right of every person charged with an offence be tried within a reasonable time. [66] Given that a stay of proceedings is equivalent to an acquittal it should only be granted in the “clearest of cases”. R. v. Conway (1989), 49 C.C.C. (3d) 289 (S.C.C.). [67] In the case at bar the delay to be considered is approximately two years from the date of when charges were laid. The case is not of such complexity as to justify a longer delay than normal before trial. In essence the Crown’s case consists of the two complainants and some expert witnesses. It is factually simple and involves no complex legal issues. [68] On the whole of the evidence I am satisfied that the applicant has established on a balance of probabilities that his right to be tried within a reasonable time has been infringed. The Crown has not discharged the onus it bears of demonstrating that any action of the accused deliberately caused the delay or that the delay caused no prejudice to the accused. The accused has suffered prejudice both presumed and real in not having his trial held within a reasonable time. The prejudice is such that it cannot be remedied other than by entering a stay of proceedings. Accordingly, the proceedings are stayed. ______________________________________ Cacchione, J. Halifax, Nova Scotia