COURT OF APPEAL FOR ONTARIO
DATE: 20000124
DOCKET: C31856
RE: HER MAJESTY THE QUEEN (Appellant) –and– J.T.G. (Respondent)
BEFORE: FINLAYSON, WEILER and SHARPE JJ.A.
COUNSEL: Tony Loparco, for the appellant
John Norris, for the respondent
HEARD: January 13, 2000
On appeal from the decision of Caputo J. to stay all the charges
based on violations of ss.7 and 11(d) of the Charter, dated
February 16, 1999.
E N D O R S E M E N T
[1] The order prohibiting publication of information that could
disclose the identity of the complainants is continued on appeal.
[2] On February 16, 1999, Caputo J. stayed all charges against
the respondent, primarily on the basis that he would be unable to
make full answer and defence to the charges of indecent assault,
gross indecency and assault with intent to commit buggery on
seven complainants in the time period from September 1958 to
August 1965. Accordingly, he concluded that the appellant’s
rights under s.11(d) and s.7 of the Charter had been violated and
granted the stay pursuant to s.24(1).
[3] The test for the granting of a stay is whether putting the
accused on trial would constitute an “abuse of process” or would
violate “the principles of fundamental justice”: R. v. Jewitt
(1985), 1985 CanLII 47 (SCC), 21 C.C.C. (3d) 7 (S.C.C.); R. v. Mills (1986), 52 C.R.
(3d). An inability to make full answer and defence would
certainly violate the principles of fundamental justice. The
appellant submits that, although Caputo J. correctly stated the
correct requirements in law for the application of a stay, he
erred in his conclusion that the appellant would be unable to
make full answer and defence.
[4] In his affidavit in support of his application for a stay,
the respondent swore, inter alia, that certain Children’s Aid
Society (“CAS”) workers and Foster Home Centre staff persons who
were present at material times and had full opportunity to
observe daily activities and the conduct of affairs in the foster
homes were dead or could not be located. These witnesses, he
swore, could have provided important evidence of the lack of any
contemporaneous complaint and the lack of opportunity to commit
the offences in the circumstances alleged. The Crown did not
cross-examine on this affidavit.
[5] The appellant submits that the CAS records are an adequate
alternative source of information and indeed are probably more
accurate than the recollections of the CAS workers thirty-five or
more years ago. The appellant further submits that the nature of
the evidence the Foster Home Centre staff persons would have
provided was merely speculative and that the evidence that the
witnesses would have given would not have rebutted the Crown’s
case.
[6] Caputo J. gave very full and careful reasons for coming to
his conclusion. Before reviewing the affidavit material, he set
out the threshold test in the following language:
The question is whether there is an air of
reality that the missing evidence would in
fact, in a material way, assist the accused
in his defence, and whether, on a balance of
probabilities, the absence of such evidence,
would deny the accused his right to make full
answer and defence.
[7] He concluded by finding:
I find that this is one of the clearest cases
where prejudice to the accused’s rights to
make full answer and defence cannot be
remedied or irreparable prejudice would be
caused to the integrity of the judicial
system if the prosecution were continued.
[8] These cases are very fact specific. In the circumstances,
we are not satisfied that Caputo J. committed any error in law.
[9] The appeal is dismissed.
(Signed) “G. D. Finlayson J.A.”
(Signed) “K. M. Weiler J.A.”
(Signed) “Robert Sharpe J.A.”