1. SUPREME COURT OF THE PARALEGAL CUP
(ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO)
HER MAJESTY THE QUEEN
Appellant
- and -
KENNETH GAVIN WILLIAMSON
Respondent
APPELLANT’S LEGAL MEMORANDUM
Paralegal Cup 2015
Team Number 8

2. APPELLANT’S LEGAL MEMORANDUM
To: The Supreme Court of the Paralegal Cup
From: Team #8
Date: November 21, 2015
Re: R v Williamson Appeal to the Supreme Court of the Paralegal Cup
Court File No. 36112
OVERVIEW
This appeal to the Supreme Court of the Paralegal Cup concerns a stay of proceedings
granted by the Court of Appeal due to a breach of the Respondent’s s. 11(b) Charter1
right to be
tried within a reasonable time.
The Appellant is seeking to overturn the decision of the Court of Appeal and reinstate the
conviction of the Respondent.
FACTS
On January 6, 2009 the Respondent was arrested for an assault committed in 1979. The
Respondent was released on bail on January 12, 2009.
On July 21, 2011 the Respondent brought a motion to stay the proceedings based on the
infringement of section 11(b). The motion was heard on September 7 and 15, 2011, and
dismissed on October 7, 2011.
On December 12, 2011 the Respondent’s jury trial began and the Respondent was
convicted of buggery, indecent assault and gross indecency.
1
Canadian Charter of Rights and Freedoms (Charter), Part 1 of the Constitution Act, 1982, being Schedule B to the
Canada Act, 1982, (UK), 1982, s. 11(b).

3. Team #8 Appellant’s Legal Memorandum Page 2
A total of 35 months elapsed between arrest and conviction. The Court of Appeal and the
Trial Court differ in their allocation of the time elapsed. The differences are shown below.
CATEGORY OF DELAY TRIAL COURT TOTAL COURT OF APPEAL TOTAL
Intake/Inherent 8 months 7 months
Defence None 2 months
Institutional 26 months 25 months
Crown 1 month, 4 days 1 month, 40 days
On appeal, the Court of Appeal set aside the convictions and entered a stay of the
proceedings pursuant to ss. 11(b) and 24(1) of the Charter2
.
ISSUES
Did the Court of Appeal err in granting a stay to an accused on the basis of inferred
prejudice when the Court found that there was no actual prejudice as a result of the delay?
Did the Court of Appeal properly balance the rights of the accused against the interests of
society?
LAW
The Charter states that: “Any person charged with an offence has the right … (b) to be
tried within a reasonable time.”3
When determining a remedy for a breach of that right, the Court must consider what
remedy is appropriate and just in the circumstances.4
The Supreme Court established a balancing test to be used in determining whether there
is a section 11(b) infringement stating: “…The factors which should be taken into account in
2
Ibid.
3
Ibid.
4
Ibid at s.24.

4. Team #8 Appellant’s Legal Memorandum Page 3
considering whether the length of the delay of a trial has been unreasonable [are:] i) the length
of the delay, ii) explanations for the delay, iii) waiver, and iv) prejudice to the accused.”5
The fourth factor can be used to determine if a delay is unreasonable: “The degree of
prejudice or absence thereof is also an important factor in determining the length of institutional
delay that will be tolerated. The application of any guideline will be influenced by this factor.”6
Inferred prejudice can be rebutted by the absence of actual prejudice:
“There is a general, and in the case of very long delays an often virtually
irrebuttable presumption to the accused resulting from the passage of time.
Where the Crown can demonstrate there was no prejudice to the accused flowing
from the delay, then such proof may serve to excuse the delay.”7
In Morin8
, the Court clarifies the guideline for a reasonable time by allowing a 14-18
month delay. The Court’s analyses in Askov, Morin and Godin9
, focus on the individual interests
that s. 11(b) is meant to protect. However, the Supreme Court has found there is also an
inference of societal interest. “There is at least by inference, a community or societal interest
implicit in section 11(b) … There is a collective interest in ensuring that those who transgress the
law are brought to trial and dealt with according to the law.”10
Society’s interests in the criminal court process are clearly set out in the principles of
sentencing in the Criminal Code:
718. The fundamental purpose of sentencing is to protect society and to
contribute, along with crime prevention initiatives, to respect for the law and the
maintenance of a just, peaceful and safe society by imposing just sanctions that
have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the
community that is caused by unlawful conduct;
5
R v Askov, [1990] 2 SCR 1199, at 1223 (“Askov”).
6
R v Morin, [1992] 1 SCR 771, at 803 (“Morin”).
7
Askov, supra, note 5 at 1232.
8
Morin, supra, note 6 at 798.
9
R v Godin, 2009 SCC 26 (“Godin”).
10
Askov, supra, note 5 at 1219.

5. Team #8 Appellant’s Legal Memorandum Page 4
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of
the harm done to victims or to the community.
718.01 When a court imposes a sentence for an offence that involved the abuse of
a person under the age of eighteen years, it shall give primary consideration to the
objectives of denunciation and deterrence of such conduct.11
ANALYSIS
The purpose of analysing prejudice is to determine how, and in what way, a delay in
proceedings has affected the legal rights protected by the Charter. These rights include liberty,
security and fair trial. By ignoring the lack of actual prejudice to these rights and focusing only
on inferred prejudice, the Court of Appeal has erred in overturning the Trial Court in this case.
In cases where there is a lengthy delay, the Respondent is assumed to have been
prejudiced. The purpose of this assumption, or “inferred prejudice,” is to avoid placing the onus
on the accused to prove that he suffered as a result of the alleged breach of his right. Courts are
then able to infer prejudice when there is a lengthy delay, but that presumption can be overcome
by the Crown proving that there was no actual prejudice.
Inferred prejudice is not sufficient reason to grant a remedy under 11(b) if the Crown
shows that there was no actual prejudice. As a matter of fact, both the Trial Court and the Court
of Appeal found that in this case the Respondent suffered no actual prejudice. Just as in Morin
where the Court excused the lengthy delay due to the lack of prejudice, the Trial Court was right
to decide that the delay in this case was reasonable.
11
Criminal Code of Canada, RSC 1985, c C-46, s. 718.

6. Team #8 Appellant’s Legal Memorandum Page 5
The Court of Appeal stated that the inferred prejudice suffered by the Respondent is
serious due to the length of the delay being over the Morin guidelines. However, we submit, that
is not how the Supreme Court intended the Morin guidelines to be used. If it is shown that there
is not actual prejudice, a court may not rely on inferred prejudice. To do so makes the
infringement of 11(b) reliant only on the passage of time, rather than a balance between the time
and prejudice. Indeed, to do so makes the test for infringement a mechanical calculation rather
than a balancing between the four factors of Askov and societal interests.
The aim of section 11(b) is the protection of individuals facing criminal prosecution.
However, courts must include societal interests in this section as well. Societal interests must be
considered in the balancing test to determine whether a delay is unreasonable. The interest of
society in seeing that people who commit crimes are tried and sentenced is very high. The
sentencing process itself gives the courts the opportunity to balance societal interests in
discouraging crime and encouraging rehabilitation against the severity of the specific crime
committed, and the character of the accused as set out in a pre-sentencing report.
CONCLUSION
As noted in the case law above, the time guidelines in Askov are not a statutory limitation
period, but rather a start for a discussion of whether a delay was unreasonable in a particular set
of circumstances. In this consideration, society’s interests must be balanced against the
prejudice to the accused. In this case there was no actual prejudice and the stay should be
overturned.