DATE: 20051117

DOCKET: C43509

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Applicant/Appellant) v. CHRISTOPHER CAMPAGNARO (Respondent)

BEFORE:

DOHERTY, CRONK and MACFARLAND JJ.A.

COUNSEL:

Randy Schwartz

for the appellant

Joseph Bloomenfeld

for the respondent

HEARD:

RELEASED ORALLY:

November 15, 2005

November 15, 2005

On appeal from the judgment of Justice Janet M. Wilson of the Superior Court of Justice dated April 13, 2005.

E N D O R S E M E N T

[1] We would grant leave to appeal and, save with respect to the costs award, would dismiss the appeal.

[2] We agree with Crown counsel that the summary conviction appeal court judge erred in factoring her personal opinions as to the best response to allegations of domestic assault into her s. 11(b) analysis. The Crown is correct in asserting that the public interest as reflected in s. 11(b) in a trial on the merits applies equally to criminal allegations arising out of domestic disputes as to any other criminal allegation.

[3] On the merits of the s. 11(b) analysis, this was a close case. The institutional delay was on the border of what is constitutionally acceptable under the guidelines of the Supreme Court of Canada. Those guidelines remain applicable. The trial judge made strong findings of actual prejudice to the appellant flowing from the delay. The summary conviction appeal court judge adopted those findings. In our view, there was evidence to support the finding of prejudice and, despite the able argument of Crown counsel, we are not prepared to interfere with that assessment.

[4] The result in this case should not be taken as setting a new constitutional timeline for cases involving allegations arising out of domestic disputes where the parties seek to reconcile. These cases, like other cases, must be considered on an individual basis. Where the institutional delay is on the edge of the constitutionally tolerable, the issue of prejudice will be central to the outcome of the s. 11(b) analysis. Prejudice can only be assessed on a case-by-case basis. We stress the need for evidentiary support for allegations of prejudice made by the applicant. These allegations, of course, can be challenged by the Crown and will be carefully assessed by trial judges.

[5] The Crown argues that there was no basis for the costs order made by the summary conviction appeal court judge. We agree with that submission and note that counsel for the respondent quite properly did not suggest that the costs order could stand under the current case law.

[6] The appeal is allowed with respect to costs. Leave to appeal from the order of the stay is granted, but the appeal is dismissed.

“Doherty J.A.”

“E.A. Cronk J.A.”

“J. MacFarland J.A.”