Court File and Parties

COURT FILE NO.: CR-1097-19 DATE: 2021-01-08

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – Stephane Brideau Applicant

COUNSEL: Bailey Rudnick, for the Crown Michael J. N. Haraschuk, for the Applicant

HEARD: October 30, 2020

DECISION ON APPLICATION ON PRE CHARGE DELAY

Hennessy J.

[1] The defendant brings an application to stay charges of sexual assault on the basis of unreasonable delay, asserting that the police waited for 4 years and 4 months after they had grounds to charge him and that the applicant has experienced specific prejudice as a result of the delay in bringing charges against him. The Crown responds that the applicant has not met the onerous test for a stay.

Annotated Chronology

[2] The facts are not controversial. They are set out below.

May 18, 2014: The complainant reported a sexual assault to the police which she alleged occurred on May 14, 2014. She met with Cst Dionne who recorded that the complainant was ‘seeking advice from police on how to best handle the situation’ and that she was not interested in having charges laid.

May 19, 2014: Cst Dionne arranged a meeting between the applicant and the complainant at a local park at the request of the accused. The applicant referred to this meeting as a mediation. At the end of the meeting the officer recorded that this was a ‘police assisted matter’ and that the complainant did not ‘feel she was sexually assaulted and doesn’t have a complaint of same’. The applicant asserts that he understood that the investigation was closed.

June 6, 2014: The complainant re-attended at the police station saying that she was not satisfied with the police response. Cst Dockery was assigned the file.

June 9, 2014: The complainant provided the officer with a list of witnesses and indicated that she was attending university out of town and was not sure if she wished to move forward with criminal charges as she was prioritizing her university studies.

June 15, 2014: The complainant provided a video statement alleging sexual intercourse without consent. The police agree that at this point they had sufficient grounds to lay a charge. The complainant asserted that she was having emotional difficulties arising from the incident. At some point, the officer made suggestions for mental health supports for the complainant.

January 3, 2016: The officer met the complainant at the police station. She was interested in learning more about the investigation and advised that she was interested in waiting until the end of the school year. During the time that Cst Dockery dealt with complainant, she told him about her struggles with mental health issues, issues with her parents and that she was trying to finish school. The officer put her in contact with counselling services. She had not disclosed the incident to her parents and ultimately requested assistance to help her do that.

July 5, 2018: The complainant advised the officer that she was interested in proceeding with charges. She had finished school in April 2017, after which there was a death in her family and travel associated with that death.

October 11, 2018: The officer contacted the accused and advised him that there were sufficient grounds to lay charges and an arrest was effected on October 16, 2018.

November 2018: The officer contacted the other witnesses.

The Test

[3] To prove abuse of process, the applicant must meet the onerous test of proving on a balance of probabilities one of two possible paths, either 1) actual prejudice to the right to a fair trial or, 2) egregious state conduct that seriously compromises the integrity of the judicial system, often called the residual ground: R. v. Hunt, 2016 NLCA 61, 2016 CarswellNfld 425, at para. 96, per Hoegg J.A. (dissenting), rev’d R. v. Hunt, [2017] 1 S.C.R. 476, 2017 SCC 25. A stay will only be granted in the clearest of cases, in those few and unusual circumstances where there is a demonstrated prejudice to the right of a fair trial or abuse of process.

Position of the Applicant

[4] The applicant submits that the facts support a finding that police conduct in this case contravenes fundamental notions of justice and undermines the integrity of the judicial system and thus breaches Charter provisions s. 7 and s. 11(d). The applicant does not submit that the passage of time will negatively affect the conduct of the trial. The applicant argues that he has suffered real prejudice from the delay, that his life aspirations have been thwarted by the laying of these charges.

[5] The applicant submits that he understood from the meeting in the park that the case was closed and no charges would be laid and that he relied on this understanding. He states that during the four years between the time the police had grounds to lay a charge and did lay the charge that the applicant went on with his life to his detriment.

[6] Counsel for the applicant submits that police did not exercise their discretion either properly or at all in deciding whether to lay charges. He argues that the police left the decision on whether or when to lay charges completely with the complainant, who prioritized getting on with her education and other family matters. The applicant submits that the police did not exercise their discretion in the public interest.

[7] The applicant submits that as of 2016, the complainant was ready to proceed after the end of the school year but that the police did not follow up with her; they waited for her to return to them which she did only in 2018. This gap is an aggravating feature, says the applicant.

[8] The applicant submits that the police conduct meets the test for a stay, by not exercising their discretion in the public interest.

Position of the Respondent Crown

[9] The Crown takes the position that there is no limitation period on criminal conduct. The Crown acknowledges that the original police decision to note that the complaint was a ‘police assisted matter’ reflected an outdated and discredited view of what has been commonly called ‘unfounded’ complaints. However, once the matter was assigned to Cst Dockery, a few weeks later, the Crown states that police decision-making and conduct was influenced by the complainant’s capacity, ability and willingness to engage with the criminal justice system. The fact that the police did not lay charges until 2018 aligns with contemporary attitudes of society which recognize the importance and primacy of taking into account the complainant’s emotional readiness to participate in the prosecution and trial process.

[10] The Crown asserts that the police conduct was not demonstrable of abuse of process; there was no evidence of bad faith, irrational, arbitrary or unreasonable conduct and therefore no breach of s. 7 rights. In any event and in the alternative, the Crown argues that a stay is not an appropriate remedy as this is not the clearest of cases.

[11] The Crown argues that the officer simply took into account a relevant factor—the complainant’s willingness to go through the process—as it affected the prospect of conviction when determining if charges should be laid. The Crown states that the applicant does not raise issues of prejudice that go to his ability to put forward a defense.

[12] The Crown argues that should complainants be forced into choosing between the prosecution of sexual assault allegations before they are emotionally ready on the one hand or never have their story heard at all, the community’s faith in the justice system will be further undermined. If these choices are forced upon complainants, the majority of whom are women, they will have yet another reason to avoid reporting sexual assaults and avoid cooperating with the police and the Crown in the prosecution of offences of violence against them.

The Law on Pre-Charge Delay

[13] In Hunt, Hoegg J.A. stated that only in few and unusual circumstances will pre-charge delay provide the basis for a breach under s. 7 and a remedy is not automatic—a stay will only be granted in the clearest of cases: R. v. Hunt, 2016 NLCA 61, 2016 CarswellNfld 425, at para. 84, per Hoegg J.A. (dissenting), rev’d R. v. Hunt, [2017] 1 S.C.R. 476, 2017 SCC 25. The delay must amount to an abuse of process. Abuse of process may fall into two categories: 1) Crown conduct that affects the fairness of the trial and, 2) Crown conduct that is egregious and seriously compromises the integrity of the judicial system: R. v. O'Connor, [1995] 4 S.C.R. 411.

[14] The applicant must establish on a balance of probability actual prejudice to their fair trial rights, of such magnitude that the accused is unable to put forward a defence. For this ground, personal prejudice is irrelevant: R. v. Nixon, [2011] 2 S.C.R. 34, 2011 SCC 34, at para. 13. Prejudice cannot be inferred and does not follow as a matter of logic from lengthy pre-charge delay: R. v. R.(G.), 2018 ONSC 130, 403 C.R.R. (2d) 329, at paras. 29-30. The prejudice must flow from the delay itself, not from the fact that a person is charged with a criminal offense.

[15] On the residual ground, the def must establish that the state conduct is egregious and seriously compromises the integrity of the judicial system: R. v. Conway, [1989] 1 S.C.R. 1659, at paras. 21-23.

[16] The applicant argued that they were primarily focused on the residual ground, that the police conduct contravenes fundamental notions of justice.

Discussion

Does the Crown conduct prevent the Applicant from his ability to have a fair trial?

[17] The length of delay is not in and of itself evidence of prejudice or unfairness. For this reason, it is necessary to consider the particular circumstances of the case: R. v. L.(W.K.), [1991] 1 S.C.R. 1091.

[18] The argument that the applicant suffered prejudice in this case was focused primarily on personal prejudice and was offered in support of abuse of process on the ground of contravention of fundamental notions of justice. However, I will briefly look at the question of whether the facts support the first ground of abuse of process, that is whether the applicant has established prejudice to his ability to have a fair trial.

[19] With respect to the trial, this matter will be focused on the issue of consent and possibly the level of intoxication. The context of the alleged assault is that a group of young people were driven home from a bar by the applicant. After the applicant dropped off three members of the group, he proceeded to a location, parked the car and had sexual relations with the complainant.

[20] The applicant submits that there is an issue with one witness who the police have not been able to locate. This witness was possibly in the car when the accused drove the complainant and her two friends home from the bar. The applicant says that the missing witness might be able to give evidence on the complainant’s level of intoxication. There was no suggestion that this person had spent any time with the complainant prior to the short drive home. The other two witnesses had been with the complainant the entire evening and were in the car with her immediately prior to the incident. They have been located and interviewed.

[21] The passage of time between the incident and trial is not an obvious prejudice to the accused. It is just as likely that any faded memories may work in favour of the applicant. There was no suggestion that the evidence of the one witness who has not yet been located would cause actual prejudice to a fair trial.

[22] There is nothing on the face of these circumstances which amounts to actual prejudice to the applicant’s fair trial rights of such magnitude that the applicant is unable to put forward a defence. I am not satisfied on a balance of probabilities that the applicant has met the onus to establish that there is real prejudice to his ability to receive a fair trial.

Does the Crown Conduct Seriously Compromise the Integrity of the Justice System?

[23] The applicant submits that the Crown conduct, which they say essentially allowed the complainant to dictate the timing of the charges, contravenes fundamental notions of justice and undermines the integrity of the justice system. The applicant submits that the police discretion to decide when and if to lay charges was not exercised in the public interest, but only in the interest of the complainant.

[24] The applicant set out three circumstances in which he was personally prejudiced by the delay and on his reliance on his understanding that charges would not be laid:

i. his career and volunteer ambitions have been thwarted or derailed, ii. his personal life has been affected, iii. he is without the financial support of his family for legal defence costs and mental health supports.

[25] The applicant filed an affidavit and was cross examined.

[26] The applicant argues that he went on with his life in the years since the incident was first reported in May 2014 up until charges were laid in 2018. The applicant had already finished a college program in Police Foundations at the time of the complaint. Ultimately, he was not able to secure a job in policing in 2014. He believed this was due to the complaint, but has no evidence to support this belief.

[27] The applicant then completed a degree in psychology and started a career as a mutual funds advisor. He worked in that field. He left a job in finance to pursue management jobs but curtailed his job search activities after he was charged in 2018. At the time the charges were laid, the accused was not working in the mutual funds sector, he was working for his father in construction. Once the charges were laid, the applicant testified that he believed that he would not be able to pass a security screening for other jobs in finance or management. The applicant is currently working construction and continues as a reservist in the military, where he has had employment since 2011.

[28] The applicant is now 30 years old. His employment income is greater now than it was in 2014. The applicant states that he is delaying buying a home, marriage and family ambitions because of the uncertainties arising from this charge and also that he cannot afford a wedding because of his legal defence costs. The applicant also says that he is not able to pursue various volunteer activities because he would not pass a security screening. The applicant also states that he has distanced himself from his peers since the charge due to the stigma associated with the charge.

[29] The applicant states that at the time of the complaint in 2014, he was 24 years old and living at home with his parents. He asserts that he had low expenses and that he could have more easily financed his legal defence costs. The applicant contends his parents could have assisted him with those costs and that he would have been eligible for his parents’ health and welfare benefits for mental health supports. He says he now cannot afford any access to counselling and that he has declined an offer from his parents for financial help because he wishes to be self-sufficient.

[30] What the applicant describes are the negative consequences of being charged; uncertain future, cost of legal defence and personal stress, stigma and upset. These stressors and consequences impact every person accused of an offence like sexual assault. The applicant avoided many of these consequences in 2014. Had he been charged in 2014, he would have faced the same financial and personal pressures at that time. Arguably, the applicant has used this period of delay to set up his personal circumstances in a way that would not have been possible for him, but for the delay.

[31] From the time of the initial complaint until 2018, the complainant gave the police a number of reasons to explain that she was not ready to go ahead with a prosecution or a trial. She told the officer of her mental health struggles and the complexities of her family situation vis a vis school and the charges. The police took these issues into consideration and did not lay charges until the complainant indicated that she was ready to proceed.

[32] The evolution in how police handle sexual assault complaints and complainants include processes and decision making considerations designed to enhance the integrity of the justice system. The public interest requires that police take into consideration the ability, capacity and willingness of the complainant to participate in the prosecution at any particular time.

[33] I do not accept that the police handed off their discretion to the complainant. My view of the evidence is that the police took into consideration the circumstances of the complainant in exercising their discretion. This consideration aligns with the Canadian Victims Bill of Rights. The Preamble of the Bill of Rights reads:

Whereas it is important that victims’ rights be considered throughout the criminal justice system;…

s. 14 reads:

Every victim has the right to convey their views about decision to be made by appropriate authorities in the criminal justice system that affect the victim’s rights under this Act and to have those views considered.

[34] I am not satisfied that the police conduct amounts to evidence of bad faith or irrational conduct. The police decision on the timing of the charges was not focused on the impact on the accused.

[35] The applicant has failed to establish that the police conduct undermines the integrity of the justice system.

Conclusion

[36] The application is dismissed.

The Honourable Madam Justice Patricia C. Hennessy

Released: January 8, 2021