R. v. G.A.G.

(Calgary, P.C. - Sexual Interference/Sexual Assault). GAG was charged with sexual interference and sexual assault of a minor. The allegations involved "major" sexual interference. In short. major sexual assault or major sexual interference occurs when the Prosecutor proves beyond a reasonable doubt that the sexual touching involved some kind of penetrative or major sexual act. An example of major sexual assault/interference is intercourse, fallatio or digital penetration. What differences "sexual interference" from "sexual assault" is that interference constitutes the touching of a person under 16 years of age. The starting point penalty for major sexual assault/interference is 4 years in a Federal Penitentiary. 

In GAG, there were a plethora of administrative issues that plagued the case for months. Those issues includes, very late disclosure, a failure on the part of the Crown to screen the case and a failure on the part of the Crown to include available dates for trial.  The total un-waived administrative delay was approximately 12 months. By the time the case landed for the Provincial court trial, nearly 24 months had passed. The delay ceiling for cases at Provincial Court is 18 months. The accused filed for s. 11(b)/unreasonable delay Charter relief. 

The accused offered long periods of availability for trial and months in advance of booking, asserted only a handful of unavailable dates. After months of attempting to book a trial date, the Crown conveniently offered trial availability during the period that the defence had long claimed unavailability. This was a total period of about 11 days over the course of a year. 

The defence successfully obtained a judicial stay of proceedings. Notwithstanding that defence counsel was really the only part participating in the proceedings for months, the application for a stay was in the opinion of this Calgary defence lawyer, closer than it should have been.

Despite the fact that the Supreme Court of Canada has attempted to set simple parameters for s. 11(b) applications, lower courts remain loathe to stay cases for delay. Though the SCC has attempted to set rules to avoid micro-counting of delays and unnecessarily laying blame, lower Courts continue to engage in these mathematics. 

If your case has a potential s. 11(b)/unreasonable delay application and you are not reasonably responsible for the delay, there are no guarantees that you will successfully obtain a remedy from the Court. To enhance your likelihood of success, it is important to retain an experienced criminal defence lawyer, who will take reasonable steps to document the defence participation I the Court process.  Running an unreasonable delay case pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms requires a criminal defence lawyer who is willing, able and available to take every reasonable step to advance the case in a timely manner. The more serious the case, the less likely the Court is prepared to grant a Charter remedy. Sexual interference is almost always incredibly serious.