Even Pedophiles Have Charter Rights

The true test of a society is how we treat the most vulnerable, despicable, and heinous members of our society. The ability of the legal system to temper passions, quell inflammatory biases, and dispense justice to all individuals is the reason why the justice system is valued and respected by society at large.

R. v. Williamson, an interesting case awaiting a hearing before the Supreme Court, helps illustrate these tensions. The case was debated this year at the 2015 Paralegal Cup.

Kenneth Williamson was accused of multiple charges of sexual assault of a minor between 1979-1980. These allegations only came to light decades later after the complainant mentioned them to his therapist and probation officer. The police were able to obtain a confession from the accused, and this testimony was videotaped and formed the main source of evidence against the accused.

The accused elected to a trial by jury, unusual given the nature of the charges. The proceedings continued until a trial was held 35 months later in Kingston, Ontario, where he was successfully convicted. Immediately prior to trial, the accused brought an application under s. 11 (b) of the Charter, which guarantees a trial within a reasonable time. The trial judge refused to hear this application, and proceeded regardless.

The trial judge’s decision to refuse a stay under s. 24.1 was based on the lack of actual prejudice against the accused, who had relatively lenient bail conditions and continued to receive pay from the school where he was previously employed. This was reviewed by the Ontario Court of Appeal, where the decision was reversed based on a finding of inferred prejudice, simply due to the passage of time since the charges were laid

The interpretation of what is considered reasonable has changed and evolved over the years since the introduction of the Charter. The 1990 case of R. v. Askov emphasized the prejudice imposed on the accused simply by the laying of charges, and the inability to demonstrate innocence before a court.

This limitation is related to the 11(d) Charter right of the presumption of innocence, and causes “exquisite agony” not only for the accused while awaiting trial, but also for their immediate family. In particular, the Court in Askov emphasized that delay itself could result in a form of prejudice to the accused which could not be quantified or readily identified, a form of inferred prejudice simply due to the presence of a delay. Failures by the justice system in dealing with criminal trials fairly, quickly and efficiently could create frustration and contempt among the public for the justice system as a whole.

The application of Askov principles ultimately proved untenable. In Ontario alone, over 47,000 accused were released based on s. 11(b), some of them being sex offenders. The Court revisited the appropriate test in R. v. Morin, where they expressed a concern that the shield against unreasonable delay could be turned into an offensive sword in the hands of a defendant. They developed an approach which evaluated reasonableness on a case by case basis, looking at several factors:

  1. the length of the delay;
  2. waiver of time periods;
  3. the reasons for the delay, including:
    • inherent time requirements of the case,
    • actions of the accused,
    • actions of the Crown,
    •  limits on institutional resources, and
    • other reasons for delay; and
  1. prejudice to the accused.

Although the upper limit for a reasonable delay was placed in Morin to approximately 8-10 months in provincial courts, subsequent case law has slightly extended this even further. Morin rejected an administrative or mathematical approach to finding an 11(b) breach, and instead preferred a balancing of interests.

Morin itself acknowledged that institutional resources would differ across the country, and financial strains should not be used to provide a general amnesty to the accused. However, the case in Williamson exceeded the outer limits of the Morin guidelines by an additional eight months. The challenge is that the remedy on s. 24(1) allows for an appropriate remedy only where the court considers it appropriate and just in respect to the circumstances. The circumstances of allowing convicted pedophile to be granted a complete stay of all charges puts this Charter right directly in tension with the public interest.

The concept of prejudice was further developed in the 2009 case of R. v. Godin, which focused on actual forms of prejudice, such as liberty, security of the person, and the right to make a full answer and defence. The delay here, which was over 2 years, was related in part to obtaining and disclosing forensic evidence and inaction by the Crown to respond to attempts for an earlier trial date. This case also elaborated on a reasonable inference of prejudice with an unreasonable delay, even in the absence of specific prejudice.

Both the trial and appellate judges in Williamson characterized certain periods before trial as institutionalized. Some of it was attributable to the accused, who was dealing with the death of a parent, and a move from Kingston to Ottawa. There was also the challenge in the Kingston courthouse of a multiple murder trial, and the courthouse having an intrinsic limitation of only two rooms capable of conducting jury trials.

Yet the onus to conduct a trial within a reasonable time is one which ultimately falls on the Crown.

Without adherence to the principles in s. 11(b), the Crown could arguably ignore the effects of delays on accused persons. Even more troubling, the Crown may allow for greater delays or larger forms of prejudice where a person is accused of a crime that does not attract particular sympathy from society. This could result in a form of arbitrary punishment by the state, not only before sentencing, but before there was ever even a trial.

The remedies found within s. 24 of the Charter can be read together (See dissent in R. v. Harrison at para 73); in reading for appropriateness and justness in 24(1), the provisions for the exclusion of evidence in 24(2), where it would “bring the administration of justice into disrepute,” may be of assistance.

What would bring the justice system into greater disrepute? Providing a convicted pedophile a stay over a technicality, or the fact that a cash-strapped court dealing with a murder trial took too long to convict this pedophile?

Even the pedophile has Charter rights. However, a stay is an extraordinary remedy.

The principles of sentencing under s. 718 of the Criminal Code list the following objectives:

  • denunciation
  • deterrence
  • separation of offenders from society
  • rehabilitation
  • reparation to victims or the community; and
  • promote a sense of responsibility in offenders

Where an offence involves the abuse of a minor, the Code directs under s. 718.01 that the primary considerations are denunciation and deterrence. A balancing of societal interests, even where a s. 11(b) Charter right is affected, is already inherent in the criminal justice system.

Section 24(1) speaks of an appropriate remedy. An 11(b) application brought before trial, while the prejudice is being experienced, can result in a judicial order for an expedited trial, which more properly balances the interests involved. This section has also been considered appropriate for a reduction of sentence in “some exceptional cases.”

If there were ever an exception where the interest of protecting society and maintain a just, peaceful, and safe society would justify a reduction of a sentence, as opposed to a complete stay and no probationary restrictions, this would probably be it.


  1. David Collier-Brown

    We have here the classic problem of achieving justice within the constraints of the law and our previous interpretations of it.

    We don’t want to be NASCAR, and change the “law” with frivolous enthusiasm. We don’t want to be trapped into finer and finer pilpul over distinctions without differences because we can’t change anything.

    IMHO, we need to apply mercy instead, and respond very publicly to the limitation of an accused’s rights with a limitation to the penalties we dare apply.

    We’re not without sin: we need to limit the stones we throw.