More on Morin and Institutional Delay: R v Williamson
The Supreme Court of Canada (“SCC”) will have an opportunity to bring some much-needed clarity to how analyses of unreasonable delay pursuant to section 11(b) of the Charter should be approached in its upcoming decisions in the appeals of both R v Williamson, 2014 ONCA 598 [Williamson], and R v Jordan, 2014 BCCA 241 [Jordan].
This piece will focus on the appeal of Williamson.
The guidelines for approaching section 11(b) claims were set out in R v Morin,  SCR 771. Generally, a claim may merit section 11(b) scrutiny eight to ten months between committal and trial and a further six to eight months of delay following a preliminary inquiry.
After considering the length of the delay, any waivers of time periods, the reasons for the delays, and if and how the accused was prejudiced by the delay, courts need to consider whether the delay is justifiable while balancing the interests of the accused with the societal interests of hearing the trial on its merits.
The contrasting court of appeal decisions in Williamson and Jordan, however, illustrate the need for further guidance from the country’s top court.
Back in 1979, Kenneth Gavin Williamson met the complainant through a juvenile diversion program. Williamson was 26 at the time and was a student at Queen’s University, where he was studying to be a teacher. The complainant was 12 years old. The relationship between the two was described as being a “big brother” type of relationship.
During visits with Williamson, the complainant alleged that Williamson initiated unwanted sexual activity with him, including unwanted touching as well as oral and anal sex. It was not until many years later that the complainant disclosed the abuse to his first and current wives, his therapist, and a doctor. In 2008, the abuse was made known to the police.
The information was sworn on January 7, 2009, and the trial ended 35 months and 16 days later on December 23, 2011.
The Trial Decision and the Delay
The trial judge attributed 27 months and four days of delay to institutional and crown delay.
At trial, the jury did not accept Williamson’s exculpatory evidence and were convinced that the sexual acts had occurred beyond a reasonable doubt. The trial judge refused to issue a stay of proceedings under sections 11(b) and 24(1) of the Charter, despite the significant delay that Williamson experienced.
This outcome turned on the trial judge’s finding that Williamson did not experience actual prejudice from the delay and the inferred prejudice was not significant in light of the high societal interest involved in trying such egregious wrongdoing.
The Court of Appeal Decision
At the Ontario Court of Appeal, Justice Lauwers reversed the trial judge’s decision, setting aside the convictions and entering a stay of proceedings. He argued that the trial judge erred in characterizing the inferred prejudice Williamson experienced as insignificant, as this finding was inconsistent with other cases where similar delays occurred.
Furthermore, while the trial judge placed significant weight to society’s interest in protecting vulnerable children, Justice Lauwers cautioned that society’s interests should not mitigate the importance of an accused’s constitutional rights.
In the Broader Context
In Jordan, both the trial judge and the British Columbia Court of Appeal refused to grant the requested stay of proceedings based on unreasonable delay. This was despite the fact that the total delay not attributable to the accused was 34.5 months.
It is possible that the accused’s lack of urgency in addressing the delays and his personal circumstances contributed to the stay not being granted at trial or appeal. However, viewing Jordan alongside Williamson, it is unclear why one application for a stay of proceedings was successful while the other was not.
On balance, it seems perplexing that the facts in Williamson would present a more compelling argument for a Charter remedy than Jordan. In Jordan, the institutional delay was longer by eight and a half months, the drug related charges were less egregious than the sexual abuse in Williamson, and the case was similarly not complex.
One of the only facts that seem to favour Williamson in this comparison is that Williamson and his counsel were more proactive in seeking expediency from the courts than the defence in Jordan.
Appeals of cases where the trial judge does not grant a stay and the accused person is found guilty presents a significant conundrum. In Williamson, Justice Lauwers pondered whether tolerating an inordinate delay would be more disreputable for the administration of justice than letting a plainly guilty person go free.
The contrasting decisions in Williamson and Jordan demonstrate that the guidelines in Morin are in need of refinement with respect to how to balance society’s interests in prosecuting a wrongdoing with the accused’s section 11(b) Charter interests.