COURT OF APPEAL FOR ONTARIO

DATE: 20000920

DOCKET: C34070

RE: HER MAJESTY THE QUEEN (Appellant) v. DOUGLAS HILLIER (Respondent)

BEFORE: ROSENBERG and MOLDAVER JJ.A. and SIMMONS J. ad hoc

COUNSEL: Sandra Kingston,

for the appellant

J. Spence Stewart, Q.C.,

for the respondent

HEARD: September 18, 2000

On appeal from the Order of the Honourable Mr. Justice J. R. McLean dated March 16, 2000

E N D O R S E M E N T

[1] Contrary to the view of the trial judge, this was not one of the clearest of cases calling for the drastic remedy of a stay of proceedings at this time. In our view, the trial judge’s ruling staying the charges was premature. The medical evidence did not show that the respondent would probably not be able to defend himself or that the trial process would probably cause significant harm to his health.

[2] It may be that, as the trial proceeds, the question of fitness will arise and have to be addressed. Likewise, during the trial, the respondent’s health may deteriorate to the point that it will not be possible to proceed further. However, the evidence presented on the motion did not meet the necessary threshold, even taking into account the trial judge’s undoubted advantage of having seen the respondent and having observed the two witnesses who testified.

[1] Accordingly, the appeal is allowed, the stay of proceedings is set aside, and the case remitted to the Superior Court of Justice for trial.

(signed) “M. Rosenberg J.A.”

(signed) “M. J. Moldaver J.A.”

(signed) “J. Simmons J. ad hoc”