W A R N I N G

The President of the panel hearing this appeal directs that the following should be attached to the file:

A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue. As relevant in this case, s. 486(3) and s.486(5) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under s. 486(3), read:

486.(3) Subject to subsection (4), where an accused is charged with

(a) an offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(b) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(c) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988,

1. the presiding judge or justice may make an order directing that the identity of the complainant or of a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way.

(5) Every one who fails to comply with an order made pursuant to subsection (3) is guilty of an offence punishable on summary conviction. R.S., c. C-34, s. 442; 1974-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6.

DATE: 20040322

DOCKET: C39420

COURT OF APPEAL FOR ONTARIO

LASKIN, ROSENBERG JJ.A. and AITKEN J. (ad hoc)

B E T W E E N:

HER MAJESTY THE QUEEN

Timothy E. Breen

for the appellant

Respondent

• and -

David Lepofsky

for the respondent

A. L.

Appellant

Heard: March 16, 2004

On appeal from the conviction by Justice James C. Kent of the Superior Court of Justice on November 20, 2002 and from the sentence imposed on January 10, 2003.

BY THE COURT:

[2] This appeal from conviction for sexual assault represents the third appeal in this matter. The appellant was convicted by a jury of this offence on two previous occasions and successfully appealed those convictions. The appellant re-elected trial by judge alone for his third trial. He was convicted again. The charge relates to an incident in the fall of 1991. The appellant was charged with the offence in 1993 after the complainant complained to the police. For the following reasons we would allow the appeal, set aside the conviction, order a new trial and enter a stay of proceedings.

[3] The complainant is the niece of the appellant's now estranged wife. Around Easter of 1991, the complainant was having difficulties with her father and left home to stay with a girlfriend. When the appellant and his wife learned of the complainant's situation they invited her to stay with them in their apartment. The complainant was to clean up after herself and occasionally babysit the couple's two children. The appellant and his wife did not charge her for room and board.

[4] The complainant alleged that in late October or early November 1991, the appellant offered to take her to her grandmother's to do her laundry. The appellant was going to a diving lesson and was in a hurry. According to the complainant, on the way to the grandmother's home, the appellant pulled the car over. He then moved over on top of her and despite her protests had forced sexual intercourse with her. After the assault, the appellant drove to a plaza to fix wiring on the passenger side of the car that had been damaged during the assault. While he was doing this, the complainant went to a convenience store and purchased some cigarettes. The appellant then dropped the complainant at her grandmother's and, presumably, went to his diving class.

[5] Either the next day or four days later – the evidence was unclear about the timings – the complainant told her friend and employer S.P. about the attack. She did not, however, want to go to the police.

[6] Several weeks later the complainant moved out of the appellant's apartment with the assistance of the appellant and his wife. The appellant's wife had asked her to move out because of complaints from the landlord. The nature of the complaints was uncertain; it was either because of noisy parties the complainant was having or because there were too many people in the apartment in violation of the lease.

[7] In cross-examination, the complainant acknowledged that she had also complained to N.B. that the appellant had raped her. N.B. was the appellant's regular babysitter. The treatment of her evidence forms one of the grounds of appeal.

[8] The appellant testified. He agreed that he attended a free diving class during the first week of November 1991. While he was getting ready, he noticed the complainant packing up her laundry and so offered to drive her to her grandmothers. On the way, the appellant stopped at a plaza so that the complainant could purchase cigarettes. He dropped off the complainant and proceeded to his diving class. This was the only diving class he attended. He enjoyed the experience but did not have the money to continue with the lessons. He denied assaulting the complainant.

[9] The theory of the defence was that the complainant had fabricated the allegation of assault. The position of the defence was that the complainant had complained to N.B. about being raped by the appellant three weeks before the diving lesson. An important part of that defence depended on the evidence of the appellant's estranged wife and N.B. After the appellant was charged, some two years after the incident, the appellant's wife attempted to determine when the appellant had gone to the diving lesson. Based on information she received from the recreation centre, she was able to establish the date of the free lesson as November 7, 1991. Crown counsel did not challenge the appellant's wife about this date in cross-examination.

[10] The appellant's wife also testified about a trip that she and the appellant made to the United States in October 1991. When they reached the border, the appellant was taken into custody because he was wanted on a warrant in Hamilton. The police came and took the appellant to the Hamilton jail, essentially leaving the appellant's wife stranded at the Fort Erie border. She called some friends and arranged to be picked up. She produced the long distance telephone bill to establish the date of this incident as October 12th. The friends drove her to Hamilton and by that time the appellant had been released. They arrived back home late in the evening and noticed a lot of young people moving between their apartment and the neighbour's apartment. That weekend N.B. was babysitting the couple's children. The appellant and his wife had planned to stay overnight in the United States and N.B. would be sleeping over at their apartment. They never attempted to cross into the United States again after this incident. Again Crown counsel did not challenge the appellant's wife in cross-examination about the date of this attempted visit to the United States.

[11] N.B. testified to a time when she was babysitting for the appellant and his wife in the fall of 1991 when she was going to stay overnight. She remembered that it was in October because she was joking with the couple's children that it was going to be cold for Halloween and they would have to wear their snowsuits. She also remembered that weekend the complainant was at a party across the hall. N.B. heard some yelling and screaming so she opened the door and found the complainant crying and saying that the appellant had raped her on her way to her grandmother's house. N.B. remembered that the appellant and his wife returned very late on Saturday or early Sunday. She recalled that the complainant moved out of the appellant's apartment a short time later, maybe a week or so.

[12] In cross-examination, N.B. was asked how she remembered the incident. She testified that she kept a journal. When she had been interviewed by the police she had not been able to recall the year that the complainant told her about the rape. N.B.'s mother suggested that she check the journal to see what she could find. She found that she had a note about telling the children to wear their snowsuits for Halloween and had also mentioned the complainant being upset, the party and the rape. After the appellant's first trial, N.B. did not keep her journal and so it was not available at this trial.

[13] The appellant raises three grounds of appeal. He submits that the trial judge misdirected himself as to the use to be made of the complainant's prior complaints, erred in relying on the complainant's own testimony as confirmation of her evidence and erred in the assessment of the defence evidence. In our view, the third ground is dispositive of this appeal and we therefore will only deal with that issue.

[14] After reviewing the evidence of the appellant's wife and of N.B., the trial judge said the following:

I stress, in reviewing the testimony of [the appellant's wife] and [N.B.], that this court is very uncomfortable with that kind of reconstruction, when it's not possible to check it, to prove it, or disprove it. That is particularly so when the reconstruction is commenced, at best, approximately two years after the fact, and then is relied upon as testimony some nine years later in court. I am unable to accept the testimony of [the appellant's wife] and [N.B.] as corroborating, even peripherally, the evidence of [the appellant]. [Emphasis added.]

[15] There were admittedly frailties in the evidence of the appellant's wife and of N.B. However, it was not open to the trial judge to discount the defence evidence because the witnesses were required to reconstruct events two years after the fact and to testify to those events nine years later. The defence was not responsible for the fact that the complainant only came forward two years after the event or that the witnesses had to try and recall events some nine years earlier. It would have been strange indeed if the appellant, his wife, or N.B. were able to recall the events of the fall of 1991 without some aid or reconstruction. In the result, the trial judge held the defence to an exacting and impossible standard.

[16] We are also concerned that the trial judge discounted the defence evidence because it was not possible to "check it, to prove it, to disprove it". Considering that these events occurred so many years ago, the defence seems to have done what it could to establish the chronology. Further, there was no challenge to the appellant's wife's testimony that the diving lesson was on November 7th, that the trip to the border was on October 12th, and that this was their last trip to the United States. While Crown counsel did cross-examine N.B. on the availability of her diary, there does not seem to have been any challenge to the fact that she had the diary at least until after the first trial. The trial judge's language also suggests that there was some burden on the accused to establish this defence.

[17] These errors by the trial judge related directly to a pivotal part of the defence. We cannot say that no substantial wrong or miscarriage of justice was occasioned and accordingly the appeal must be allowed.

[18] The appellant asks that if the appeal is allowed, this court enter a stay of proceedings. In our view, that is the proper disposition. If this prosecution were to proceed, this would be a fourth trial for this appellant, a trial that would take place some thirteen years after the events. The appellant has been on bail for almost ten years. These events have now been related in a preliminary inquiry and three different trials. The community would have great difficulty in placing any faith in a verdict that would come out of a fourth trial reached in such circumstances.

[19] In R. v. Keywoski (1988), 1988 74 (SCC), 40 C.C.C. (3d) 481 (S.C.C.), the court set aside a stay of proceedings entered by a trial judge at the commencement at what would have been the accused's third trial for criminal negligence causing death. Speaking for the court at p. 483, Wilson J. held that a "third trial may, indeed, stretch the limits of the community's sense of fair play but does not exceed them". She noted that the proceedings had not occupied an undue amount of time (four years), that the accused had not been held in custody and that having regard to the seriousness of the charge the administration of justice was best served by permitting a third trial.

[20] By contrast, in this case, what is proposed is a fourth trial. There has been a lengthy delay of almost thirteen years (three times the delay in Keywoski). The appellant has admittedly been on bail for most of that time except for having served about a month and a half of the sentence and this is unquestionably a serious charge. We also accept that neither the Crown nor the complainant is responsible for the errors that led to the three successful appeals. However, prosecutorial misconduct is not a prerequisite to a finding of an abuse of process. See Keywoski at p. 483 and R. v. Conway (1989), 1989 66 (SCC), 49 C.C.C. (3d) 289 (S.C.C.) at 302. To continue these proceedings would, in our view, stretch the limits of the community's sense of fair play beyond the breaking point. This is one of those clearest of cases that justify a stay of proceedings.

[21] Accordingly, the appeal is allowed, the conviction set aside, a new trial ordered and a stay of proceedings entered.

Signed: "John Laskin J.A."

"M. Rosenberg J.A."

"C.D. Aitken J."

RELEASED: "JL" MARCH 22, 2004