IN THE SUPREME COURT OF CANADA OVERVIEW OF THE CASE

Transcription

1 S.C.C. File No IN THE SUPREME COURT OF CANADA (ON APPLICATION FOR LEAVE TO APPEAL FROM THE COURT OF APPEAL FOR ONTARIO) HER MAJESTY THE QUEEN Applicant Respondent on the Cross-Appeal and KENNETH GAVIN WILLIAMSON Respondent Applicant on the Cross-Appeal RESPONDENT S MEMORANDUM OF ARGUMENT OVERVIEW OF THE CASE 1. In R. v. Askov, Cory J. explained that the right to a trial within a reasonable time, while it is a right that attaches to an accused person, is a right that exists to benefit victims and the community at large: 1 44 Although the primary aim of s. 11(b) is the protection of the individual's rights and the provision of fundamental justice for the accused, nonetheless there is, in my view, at least by inference, a community or societal interest implicit in s. 11(b). That community interest has a dual dimension. First, there is a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law. Second, those individuals on trial must be treated fairly and justly. Speedy trials strengthen both those aspects of the community interest. A trial held within a reasonable time must benefit the individual accused as the prejudice which results from criminal proceedings is bound to be minimized 45 There are as well important practical benefits which flow from a quick resolution of the charges Witnesses too are concerned that their 1 R. v. Askov, [ S.C.R. 1199], paras

2 evidence be taken as quickly as possible. Testifying is often thought to be an ordeal. It is something that weighs on the minds of witnesses and is a source of worry and frustration for them until they have given their testimony. 46 It can never be forgotten that the victims may be devastated by criminal acts. They have a special interest and good reason to expect that criminal trials take place within a reasonable time. From a wider point of view, it is fair to say that all crime disturbs the community and that serious crime alarms the community. All members of the community are thus entitled to see that the justice system works fairly, efficiently and with reasonable dispatch. The very reasonable concern and alarm of the community which naturally arises from acts of crime cannot be assuaged until the trial has taken place. The trial not only resolves the guilt or innocence of the individual, but acts as a reassurance to the community that serious crimes are investigated and that those implicated are brought to trial and dealt with according to the law. 47 The failure of the justice system to deal fairly, quickly and efficiently with criminal trials inevitably leads to the community's frustration with the judicial system and eventually to a feeling of contempt for court procedures. When a trial takes place without unreasonable delay, with all witnesses available and memories fresh, it is far more certain that the guilty parties who committed the crimes will be convicted and punished and those that did not, will be acquitted and vindicated. It is no exaggeration to say that a fair and balanced criminal justice system simply cannot exist without the support of the community. Continued community support for our system will not endure in the face of lengthy and unreasonable delays. 2. In Gavin Williamson s case, the trial court and the prosecution took a casual approach to dealing with an accused person who was consistently asserting his right to be tried within a reasonable time. The Court of Appeal was correct in finding that Mr. Williamson s s. 11(b) rights had been infringed, and in ordering a stay of proceedings. 3. At the same time, the Court of Appeal erred in concluding that highly prejudicial portions of Mr. Williamson s statement to the police a statement obtained through the use of the notorious Reid technique were properly admitted at trial

3 4. The Respondent s position is that the Applicant has not raised an issue of national importance warranting this Honourable Court s intervention. However, the Court of Appeal s ruling with respect to the statement is another matter entirely. The ruling is contrary to other appellate rulings on the same issue; the statement, in which the interrogating officer asked Mr. Williamson why the complainant would lie, and referred to corroborating evidence that was never called at trial, could well have resulted in a miscarriage of justice

4 PART I: RESPONDENTS STATEMENT AS TO FACTS 5. The Respondent accepts the Applicant s statement of facts with respect to the issue of delay. 6. With respect to the statement issue, the Respondent adds the following facts: 7. Mr. Williamson, at the time a teacher with almost thirty years experience, was arrested at his school Gananoque Secondary School at the end of the day on January 6, This turned out to be the last day that he would ever teach. 8. Det. Jason Cahill told Mr. Williamson that he was under arrest for historical sexual offences. He did not provide details immediately. He and Mr. Williamson discussed cycling and other unrelated matters while driving to the police station in Kingston. Once there, Mr. Williamson was brought into a room and the video recorder was turned on. The statement began. Det. Cahill confronted Mr. Williamson with the details, but not all at once. He told Mr. Williamson that he was being arrested for sexual offences against Xxxxx Xxxxx. 9. The statement lasted 1 hour and 45 minutes. Det. Cahill strategically gave Mr. Williamson details of the allegations in a piecemeal fashion, and made use of his interrogation training in order to extract a confession. Mr. Williamson, when asked at the beginning of the interview, said that he had no idea what he was being arrested for. As Det. Cahill provided some details, Mr. Williamson categorically denied any sexual contact, ever, with Mr. Xxxxx. Det. Cahill first assessed Mr. Williamson s - 4 -

5 personality type ( emotional and intelligent ) and used this assessment to structure his questioning. He appealed to Mr. Williamson s emotional side by moving through various themes. For example, one prominent theme was the moral relativity between being the sexual aggressor versus being involved in a consensual act. Another theme was to the effect that this was Mr. Williamson s golden opportunity to give his side of the story. Another theme was that friends and family of Mr. Williamson would have to be contacted including Mr. Williamson s elderly parents (his father was terminally ill and died nine months later). He manufactured a false similar case history to appeal to Mr. Williamson s philosophical nature. Mr. Williamson repeatedly made comments along the lines, You re almost asking me to make something up. Once the prospect of his parents being involved became a strong possibility, he began to describe an account of sexual activities between him and Mr. Xxxxx Mr. Williamson described some incidents that Mr. Xxxxx had not mentioned in his statement, admitting to things that he had not in fact been accused of and indeed that Mr. Xxxxx specifically denied in his statement and/or in his testimony. For example, the Appellant referred to Mr. Xxxxx putting his penis into Mr. Williamson s mouth, something that Mr. Xxxxx never described in his statement or at the preliminary inquiry or trial and in fact specifically denied; he described mutual masturbation that Mr. Xxxxx never alleged; he described Mr. Xxxxx on top of him, putting 2 Transcript, December 13, 2011, pp ; December 14, 2011, pp. 5, 9-10; Exhibit 2A, Transcript of Interview - 5 -

6 his penis between Mr. Xxxxx s thighs, something never mentioned by Mr. Xxxxx Mr. Williamson testified that on the date of his arrest, he felt numb and was operating on autopilot on the way to the police station, discussing cycling and exercise. Once he heard the accusations, he was completely bewildered and in shock. During the interview, Det. Cahill stated to him I m not asking in relation to the allegations, saying that he believed Mr. Xxxxx. Mr. Williamson realized that the detective had already made up his mind, and that the interview was not intended to be a discussion to get at the truth. He concluded that he was going to be charged no matter what he said, and that he needed to satisfy Det. Cahill in some way lest he go to jail until the trial. He sensed that he was in a lose/lose situation and wanted to get out of the interview room. He was terrified that he would never be able to see his terminally ill father again, except in jail through a glass partition Mr. Williamson testified that, out of desperation, he fabricated a story to support less serious charges. He made the false confession to avoid going to jail, responding to the prompts from the detective. Specifically, he told Det. Cahill that Mr. Xxxxx had tried to touch him and that he had climbed into bed with him. He felt that he could mollify Det. Cahill by admitting to some sexual activity but of a less aggressive nature. He described Mr. Xxxxx as being aggressive in seeking out sexual contact, and said that he let Xxxxx touch him a couple of times. Taking the lead from Det. Cahill, he fabricated a story of anal sex between himself and Mr. Xxxxx, and later spoke of mutual masturbation, as well as of performing oral sex on Mr. 3 Transcript, December 13, 2011, pp ; December 14, 2011, pp. 23, 30 4 Transcript, December 14, 2011, pp

7 Xxxxx Mr. Williamson testified that during the interview he felt threatened and thought that asking for a lawyer would exacerbate the situation. No sexual activity ever took place between himself and Mr. Xxxxx: the evidence given in his video statement was purely a fabrication designed to get him out of jail as soon as possible so that he could obtain legal advice and so that he could go home. 6 The controversial portions of the statement 14. Det. Cahill asked Mr. Williamson four separate times why Mr. Xxxxx would make up the allegations, and each time Mr. Williamson could only give the same bewildered response. 7 p. 4: Do you have any idea why [Xxxxx Xxxxx] might do that? p. 8: Do you have any idea why he might be saying this, 30 years later? p. 9: [In response to Mr. Williamson saying, I have no idea, I mean why would he make these allegations against me this is totally bizarre. ] Yeah, I was kinda hoping that you could clear that up for me. p. 31: Why do you think he would make up those details? 15. The Crown Attorney repeated the first two of the above passages to Mr. Williamson in cross-examination In addition to this line of questioning, Det. Cahill told Mr. Williamson several times 5 Transcript, December 14, 2011, pp ; December 15, 2011, pp. 24, 33-4, 81, , Transcript, December 14, 2011, pp ; December 15, 2011, p Exhibit 2A, transcript of statement, pp. 4, 8, 9, 31 8 Transcript, December 14, 2011, pp. 108,

8 that he had confirmed through other witnesses, none of whom testified at trial, the information provided by xxxxxx: 9 p. 16: I do have information that leads me to believe these events did take place Yeah. So, there s not just what he has had to say so I mean it s been confirmed through a few different areas I mean we were able to talk to some people that used to work with the court systems that paired yourself and Xxxxx together p. 17: I mean it s not like this is the first time someone s heard about it in thirty years he s been telling people so I mean that kind of infor- mation gives an accusation like this strength it gives credibility, and the sheer amount of detail and I m pretty good at understanding people, body language, um the way they relay information um I believe him. p. 20: I know there s more. I mean there s far too much detail, far too much information that s been confirmed also by others through years of you know, it s not like he just confessed this I mean he s been talking about it to girlfriends, wives, ex- wives, I mean p. 22: So, the ex- wives, the wives, the girlfriends, I ve already talked to. (Williamson: He s consistently said the same thing?) Yeah, for dec- ades. (He has?) He has. (So, he got his story and he stuck to it for thirty years.) For thirty years pp. 35-6: He seemed to feel that [your mother] had tried to prevent you guys from being in the same bedroom alone or behind closed doors and um he said in particular she actually questioned him about the blood in his underwear (My mother did? Questioned Xxxxx?) Yeah. (Oh my god. My mother? He says my mother asked him?) Yeah Whether she was doing the laundry or picked it up I m not sure of those particulars but that she had noticed yeah and that she had asked him about it. 9 Exhibit 2A, transcript of statement, pp. 16, 17, 20, 22,

9 PART II: QUESTIONS IN ISSUE 17. Question 1: Has the Applicant raised an issue of national importance that merits the intervention of the Supreme Court of Canada? 18. Question 2: Should leave to cross-appeal be granted with respect to the issue of the statement, i.e.: Where an otherwise admissible statement contains questions or comments by the interviewer, which questions or comments would be inadmissible if asked or stated in Court, should the statement be edited so that the offending portions are not put before the jury? Is this a question of law of national importance? PART III: STATEMENT OF ARGUMENT ISSUE 1: Does the decision of the Court of Appeal raise issues of national importance? 19. The Applicant takes exception to the Court of Appeal s decision in two respects: The Court of Appeal placed undue emphasis on inferred prejudice. The Court of Appeal created an in inappropriate burden on trial courts to accommodate trials within a reasonable time, to the point of requiring trial courts to go to extraordinary lengths such as moving trials to other courthouses

10 (A) Inferred prejudice 20. The Court of Appeal s decision in this case does nothing more than ratify the comments made by Cory J. in Askov: I agree with the position taken by Lamer J. that s. 11(b) explicitly focusses upon the individual interest of liberty and security of the person. Like other specific guarantees provided by s. 11, this paragraph is primarily concerned with an aspect of fundamental justice guaranteed by s. 7 of the Charter. There could be no greater frustration imaginable for innocent persons charged with an offence than to be denied the opportunity of demonstrating their innocence for an unconscionable time as a result of unreasonable delays in their trial. The time awaiting trial must be exquisite agony for accused persons and their immediate family. It is a fundamental precept of our criminal law that every individual is presumed to be innocent until proven guilty. It follows that on the same fundamental level of importance, all accused persons, each one of whom is presumed to be innocent, should be given the opportunity to defend themselves against the charges they face and to have their name cleared and reputation re-established at the earliest possible time. 67 The different positions taken by Members of the Court with regard to the prejudice suffered by an accused as a result of a delayed trial are set forth in Mills and Rahey. Perhaps the differences can be resolved in this manner. It should be inferred that a very long and unreasonable delay has prejudiced the accused. As Sopinka J. put it in Smith, supra, at p. 1138: Having found that the delay is substantially longer than can be justified on any acceptable basis, it would be difficult indeed to conclude that the appellant's s. 11(b) rights have not been violated because the appellant has suffered no prejudice. In this particular context, the inference of prejudice is so strong that it would be difficult to disagree with the view of Lamer J. in Mills and Rahey that it is virtually irrebuttable. Nevertheless, it will be open to the Crown to attempt to demonstrate that the accused has not been prejudiced. This would preserve the societal interest by providing that a trial would proceed in those cases where despite a long delay no resulting damage had been suffered by the accused. Yet, the existence of the inference of prejudice drawn from a very long delay will safely preserve the pre-eminent right of the individual. Obviously, the difficulty of overcoming the inference will of necessity become more difficult with the passage of 10 R. v. Askov, supra, para. 43,

11 time and at some point will become irrebuttable. Nonetheless, the factual situation presented in Conway serves as an example of an extremely lengthy delay which did not prejudice the accused. However, in most situations, as Sopinka J. pointed out in Smith, the presumption will be "virtually irrebuttable". (Emphasis added) 21. In the present case, while the trial Judge found that Mr. Williamson did not suffer any actual prejudice despite his assertions, he did not rule out inferred prejudice: I find that Mr. Williamson has not proven actual prejudice, and that the inferred prejudice to him is not significant It is entirely within the purview of the Court of Appeal to acknowledge that there is significant inferred prejudice, despite the absence of actual prejudice, that flows from a delay of almost three years. There is nothing novel in the Court of Appeal s decision; indeed, it does no more than acknowledge what has been acknowledged in countless cases beginning with the Askov decision: the longer the delay, the greater the prejudice. 23. The respondent respectfully submits that the decision of the Court of Appeal is reasonable and does not raise an issue of national importance. (B) Administrative change of venue 24. The Court of Appeal essentially invited trial Courts to be creative, to think of other options, when trying to accommodate the right of an accused to a trial within a reasonable time. Again, this is not a novel approach. 25. In Askov, the Supreme Court of Canada encouraged trial courts to think outside the 11 Ruling on s. 11(b) application, p. 24 of the Applicant s materials, para

12 box and to take all reasonable steps to accommodate trials efficiently: 54 On a more specific level, the question of delays caused by systemic or institutional limitations should also be discussed under the heading of delays attributable to the Crown. This factor will often be the most difficult to assess. A careful and sensitive balancing will be required in order to properly assess the significance of this aspect of delay. First, let us consider the problem from the point of view of society. Section 11(b) applies to all Canadians in every part of our land. In a country as vast and diverse as ours, the institutional problems are bound to differ greatly from province to province and from district to district within each province. Differences of climate, terrain, population and financial resources will require different solutions for the problem of providing adequate facilities and personnel. Lack of financial resources may require imaginative answers to difficult problems, including the provision of temporary facilities. The problems presented and the solutions required will vary between heavily populated centres such as Toronto and MontrÈal and the sparsely populated districts bordering on Hudson Bay. 55 Wise political decisions will be required with regard to the allocation of scarce funds. Due deference will have to be given to those political decisions as the provisions of courtroom facilities and Crown Attorneys must, for example, be balanced against the provision of health care and highways. Yet solutions must be found as indeed they have been in many jurisdictions outside Ontario. Similarly situated communities can provide a rough comparison and some guidance as to what time period constitutes an unreasonable delay of the trial of an accused person. That comparison should always be made with the more efficient of the comparable jurisdictions. 56 The right guaranteed by s. 11(b) is of such fundamental importance to the individual and of [page1225] such significance to the community as a whole that the lack of institutional resources cannot be employed to justify a continuing unreasonable postponement of trials. In Mills, supra, Lamer J. noted at p. 935: In an ideal world there would be no delays in bringing an accused to trial and there would be no difficulties in securing fully adequate funding, personnel and facilities for the administration of criminal justice. As we do not live in such a world, some allowance must be made for limited institutional resources. However, the lack of institutional facilities can never be used as a basis for rendering the s. 11(b) guarantee meaningless. In the same case, Lamer J. gave clear warning of the dangers that would ensue from permitting the lack of institutional resources to constitute an acceptable excuse for unreasonable delays. At page 935 he stated:

13 It is imperative, however, that in recognizing the need for such a criterion we do not simply legitimate current and future delays resulting from inadequate institutional resources. For the criterion of institutional resources, more than any other, threatens to become a source of justification for prolonged and unacceptable delay. There must, therefore, be some limit to which inadequate resources can be used to excuse delay and impair the interests of the individual. [Emphasis added.] 57 It must be remembered that it is the duty of the Crown to bring the accused to trial. It is the Crown which is responsible for the provision of facilities and staff to see that accused persons are tried in a reasonable time. 58 This same view was expressed by Martin J.A. in Beason, supra. In that case the Ontario Court of Appeal considered a delay of forty months, nine months of which was occasioned by a shortage of courtrooms in Toronto. Martin J.A. stated at p. 42: An accused has no duty to bring himself to trial. The Crown has that duty. I am further of the view that the unavailability of courtroom facilities or personnel cannot justify a delay of this inordinate length in a simple case such as this. 59 Where inordinate delays do occur, it is those who are responsible for the lack of facilities who should bear the public criticism that is bound to arise as a result of the staying of proceedings which must be the inevitable consequence of unreasonable delays. Members of the community will not and should not condone or accept a situation where those alleged to have committed serious crimes are never brought to trial solely as a result of unduly long delays. It is a serious consequence with potentially dangerous overtones for the community. It is right and proper that there be criticism of the situation when it occurs. 26. The Respondent respectfully submits that it is a reasonable suggestion that a trial court, faced with a shortage of courtrooms, look for practical alternatives to delaying trials inordinately. In the present case, when the trial dates was set on October 22, 2010, the Court was alerted that a s. 11(b) application was being brought. It is unacceptable that, in October 2010, a trial date for a relatively short trial was not available for another 14 months. It borders on the surreal that a s. 11(b) application

14 was set at the same time that the trial date was set. Alarm bells should have been ringing at that time, and the Court should have been mobilizing to find an earlier date, somehow, somewhere. 27. The Court of Appeal s suggestion of what amounts to an administrative change of venue is not revolutionary, and should not attract the intervention of the Supreme Court of Canada. 28. For these reasons, the Respondent submits that the application for leave to appeal the s. 11(b) ruling should be dismissed. (C) The statement should have been edited before being put before the jury 29. It is trite law that the Crown cannot ask an accused person why a complainant would have fabricated allegations, as such questions put the accused in an impossible position and effectively reverse the burden of proof Similarly, it is trite law that hearsay evidence is inadmissible unless it satisfies the requirements of necessity and reliability. 31. In the present case, Detective Cahill asked Mr. Williamson on multiple occasions why Mr. Xxxxx would have made up details. This line of questioning was watched by the jurors, without comment by the trial Judge. The jurors saw Mr. Williamson being asked questions that a Crown Attorney would never be allowed to ask. The video statement became a vehicle whereby the Crown was able to ask questions, by 12 For example, see R. v. A.F., [1996] O.J. No (C.A.)

15 proxy, that she could not otherwise ask. This line of questioning, had it taken place in court between the Crown and the accused, would have led to an intervention by the trial Judge and, if not interrupted, would likely have led to a successful appeal from conviction. 32. The Applicant on the cross-appeal respectfully submits that this line of questioning should not be insulated from appellate scrutiny because it came from a police officer rather than a Crown Attorney. The same damage was done. The accused was put in the same impossible position in front of the jury. 33. The interrogating officer made comments to the effect that other witnesses corroborated Mr. Xxxxx. No other witnesses were called. The jury heard the officer say that Mr. Xxxxx s story was corroborated. The trial Judge did not intervene at the time, nor did he caution the jury later. The jury could well have been left with the impression that Mr. Xxxxx s account was corroborated, and could have drawn impermissible inferences from that evidence. 34. Had the officer made the same comments in Court, the trial Judge would have strongly cautioned the jury to disregard these comments. Again, the fact that the comments were made on a video should not insulate them from disapproval at trial or on appeal. They are damaging, they are highly prejudicial, and their effect can only be speculated upon. 35. The Applicant on the Cross-Appeal relies in particular on R. v. L.L., where the On

16 tario Court of Appeal stated the following: I agree that the impugned questions and answers should not have been placed before the jury. However, in light of the clear and contemporaneous instructions given by the trial judge, I am satisfied that no prejudice arose in this case from the failure to edit this portion of the appellant's statement. 14 Questions in cross-examination that ask an accused person to explain why a complainant would fabricate his or her allegations are improper for two reasons. 15 First, as a general matter, it is improper to invite one witness to comment on the veracity of another: R. v. Brown (1982), 1 C.C.C. (3d) 107 (Alta. C.A.) affirmed [1985] 2 S.C.R This principle has particular application to an accuser and the accused. As noted by Charron J.A. in R. v. Rose, (2001), 53 O.R. (3d) 417 (C.A.) at para. 27, this court "has held repeatedly that it is improper to call upon an accused to comment on the credibility of his accusers". 16 Second, questions of this type create a risk of shifting the burden of proof because they may mislead the trier of fact into focussing on whether the accused can provide an explanation for the complainant's allegations instead of focussing on the central issue of whether the Crown has proved beyond a reasonable doubt that the allegations are true: R. v. S.(W.) (1994), 18 O.R. (3d) 509 (C.A.), leave to appeal to the S.C.C. refused, [1994] S.C.C.A. No ; R. v. Ellard (2003), 172 C.C.C. (3rd) 28 (B.C.C.A.). As this court said in R. v. F.(C.), [1996] O.J. No. 297, 1999 CanLII 623 (Ont. C.A.), such questions create a risk that the jury may draw an adverse inference if the accused fails to provide a "reasoned or persuasive" response. 17 Contrary to the submissions of the trial Crown, the fact that it may be appropriate for the police to ask such questions as part of an investigation does not mean that portions of an accused's statement in which such questions are asked are properly admissible. This court made that clear in F.(C.). In that case, even though no objection was raised at trial, this court held that portions of an accused's statement to the police asking him to explain why the complainant made the allegations and why some people believed the complainant should not have been placed before the jury. 18 Nonetheless, I am satisfied that the trial judge's clear instructions explaining why this form of questioning is improper and emphasizing that the onus is on the Crown to prove guilt beyond a reasonable doubt, would have cured any prejudice that might otherwise have arisen. In the face of this instruction given before the videotaped statement was played, I see no real possibility that the jury would have been misled into focusing on any perceived failure of the appellant to provide an adequate explanation for the complain- 13 R. v. L.L., [2009] O.J. No (C.A.), para

17 ant's allegations rather than on the issue of whether the Crown had satisfied its obligation to prove guilt beyond a reasonable doubt. (Emphasis added) 36. The difference between L.L. and the present case is that in L.L. the trial Judge gave a clear caution to ignore the forbidden line of questioning. Here there was absolutely no caution given whatsoever. 37. L.L. is good law and makes sense. The Court of Appeal, for reasons that are entirely unclear, chose not to follow its own decision. It is respectfully submitted that the Supreme Court of Canada now has the opportunity to make clear that, even where a statement is admissible in the sense of being voluntary and in compliance with the Charter, it can and should still be edited in order to ensure trial fairness. PART IV: SUBMISSIONS CONCERNING COSTS 1. The Respondent seeks costs of responding to this Application. PART V: ORDER SOUGHT 2. The Respondent respectfully submits that leave to appeal be denied. In the al- ternative, if leave to appeal is granted, it is respectfully submitted that leave to appeal also be granted with respect to the cross- appeal. All of which is respectfully submitted by: John H. Hale Counsel for the Respondent November 3,

18 PART VI: TABLE OF AUTHORITIES Case Paras. R. v. Askov, [ S.C.R. 1199] 1, 20 R. v. A.F., [1996] O.J. No (C.A.) 29 R. v. L.L., [2009] O.J. No (C.A.)