R. v. S.W.C.
Her Majesty the Queen, and
 O.J. No. 3741
Ontario Court of Justice
April 21, 1999.
Charges: Sexual Assault x 2
Sona Advani, for the Crown.
Tushar Pain, for the accused.
¶ 1 BEAN J.: This is the motion brought by the young person who seeks relief for an alleged breach of his rights under Section 11(b) of the charter. The delay in this matter in total is 16 months and 15 days. The delay largely in my view is because of the Crown’s failure to make adequate disclosure. While there may well be some inherent time requirements, the fact of the matter, as I understand it, is that as of this day set for trial disclosure had not been completed, in that transcripts of witnesses’ statements which were in the Crown brief were not delivered to the defence until the trial actually commenced and the young person was arraigned. In addition, as I understand the situation, the Crown is in possession of evidence with regard to charges laid against other young persons which the Crown alleges caused part of the delay, that is that the investigation of those charges caused part of the delay because it was necessary to do so in order to adequately prepare this case. It seems to me that that is the Crown’s position.
¶ 2 Certainly, the Crown cannot be allowed at this stage to say that that evidence was immaterial, that it did not assist the defence in any way even if it was produced. Clearly if the Crown thought it sufficiently important to delay the trial and the production, then assuming that it exists, which I understand that it does, then it is equally important to be disclosed to the defence. The position then is that the Crown is attempting to argue that the matter ought not be dismissed because of delay when it still has not completed the disclosure requirements and, of course, further delay will be required in order to allow the Crown to complete the disclosure and a new trial date be set. In addition, of course, the failure to disclose is a violation of the young person’s, section seven rights. It seems to me there’s a clear and continuing violation. Time alone in my view, would be sufficient to inquire as to the delay.
¶ 3 The young person, in my view, has suffered a substantial prejudice which can be inferred from the fact that he was 12 years old at the time these charges were laid. He is now 14. He has been before the courts personally on 15 separate occasions over the 16 and a half months. Each time, I can infer that he was required to be absent from school in order to do so. He has had what are very serious charges hanging over his head for all those months. The delay caused his initial counsel to have to relinquish the file because his parents were unable to continue to afford to pay the first counsel because of the delay and the numerous court appearances required by the Crown’s failure to make timely disclosure. He was therefore required to apply for legal aid.
¶ 4 In my view, that is a direct result of the delay caused by Crown’s failure to make adequate and timely disclosure despite repeated requests. In my view that is additional prejudice which can be inferred to the young person.
¶ 5 It seems to me then that the failure to disclose having continued to the day of trial and the delay to this point being largely attributable to the Crown, I would attribute at least 12 months of the delay to the Crown. The young person is in a position where the appropriate remedy ought to be considered. As the Crown has argued, there is obviously a societal interest in having very serious charges decided and the perpetrators, if they are found guilty, suitably punished or otherwise dealt with. But there is also, in my view, a societal interest in insuring that a young person’s charter rights are upheld. In my view, the supreme Court of Canada has made it abundantly clear that the obligation by the Crown to disclose is of a very high order and that failure by the Crown to adequately and timely disclose to the young person is grounds for the imposition of a stay. In my opinion that is the appropriate remedy in this case and the charges will be stayed under Section 24 of the charter.