CITATION: R. v. Johnson, 2007 ONCA 419
DATE: 20070607
DOCKET: C45026
COURT OF APPEAL FOR ONTARIO
MCMURTRY C.J.O., O’CONNOR A.C.J.O and DOHERTY J.A.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
NOLAN JOHNSON
Respondent
Gillian Roberts for the appellant
Matthew Webber and Philip Campbell for the respondent
Heard: May 24, 2007
On appeal from the stay of proceedings entered by Justice Robert C. Desmarais of the Superior Court of Justice on January 11, 2006, with reasons reported at [2006] O.J. No. 84.
ENDORSEMENT
[1] The Crown appeals an order staying a charge of rape against the respondent on the basis that the Crown failed to disclose relevant information in a timely manner.
[2] The Crown’s case relied heavily on the evidence of the complainant. The complainant was with Kevin Dickie both before and after the alleged rape. Not long afterwards, the complainant and Dickie had a dispute and the complainant called the police. Dickie began leaving threatening phone messages on the complainant’s phone. In several of those messages he suggested that the complainant’s rape allegation was false. The complainant gave the tapes of the phone messages to the police.
[3] The Crown concedes that the tapes of the phone calls from Dickie to the complainant should have been disclosed after they were received by the police. The Crown also concedes that there was no excuse for the delay in disclosing the tapes until shortly before the trial was scheduled to begin. By then, close to two years had elapsed.
[4] Moreover, it is accepted that while the tapes themselves may or may not be admissible, they were relevant to the defence, particularly with respect to the complainant’s credibility.
[5] The trial judge found that the delay in disclosure caused prejudice to the defence that could not be cured by an adjournment. His concern was that when Dickie was interviewed by the police shortly before the trial was scheduled to start, he had “an apparent memory lapse”. Dickie started a written statement by saying, “[i]t’s been a long time, the details are not clear”. When asked about whether he recalled making the phone calls, his answer was, “I’d seen her [the complainant] after that day for sure”. The police did not press Mr. Dickie for answers about the important phone calls or for details about what he could remember or not.
[6] The stay motion proceeded before the scheduled commencement of the trial. Evidence was called about the circumstances that led to the delay in disclosure. Unfortunately, Mr. Dickie was not called, nor did anyone carry out a detailed interview of him to flesh out the extent of his memory. As a result, the record before the trial judge as to Mr. Dickie’s loss of memory, which was the only possible basis for a finding of prejudice, was extremely sparse.
[7] In circumstances such as these, the courts have held that it is preferable to proceed with the trial and then determine the abuse motion with the benefit of all the evidence. A stay should be granted prior to the conclusion of the trial only if “it is clear that no other course of action will cure the prejudice” to the accused. This is because the court will be in a better position at the end of the trial to determine whether actual prejudice has occurred: R. v. La (1997), 1997 309 (SCC), 116 C.C.C. (3d) 97 at 109-110 (S.C.C.).
[8] In the present case, the Crown asked the trial judge to follow this course of action. In a factum, filed on the abuse motion, the Crown submitted that the motion should not be decided until after all the evidence was heard. She relied upon La. In her oral submissions, the Crown pointed out that a determination of prejudice on the record then before the court would be premature and largely speculative. Once the evidence was heard, the prejudice, if any, would be known.
[9] In his reasons granting a stay, the trial judge did not consider the option of adjourning his decision on the motion until after he had heard all of the evidence, including possibly the evidence of Kevin Dickie. In our view, he erred in not adopting this approach.
[10] While the trial judge had the discretion to decide a motion such as this before trial, he was required to exercise that discretion in accordance with the appropriate principles. Professor David Paciocco in his work entitled “The Stay of Proceedings as a Remedy in Criminal Cases: Abusing the Abuse of Process Concept” (1991) 15 Crim. L.J. 315 at 340-41 sets out two criteria relating to prejudice that should be fulfilled in order for a stay of proceedings to be granted:
the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and
no other remedy is reasonably capable of removing that prejudice.
These criteria were adopted by the Supreme Court of Canada in R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411 at para. 75.
[11] The onus was on the respondent to establish prejudice. On the record before the trial judge, it was not shown that the prejudice was manifest or aggravated. The evidence of prejudice was almost entirely speculative. It was impossible to know whether Kevin Dickie, if interviewed further or called as a witness, could have provided details of the phone calls that would have assisted the defence. The police interview was not thorough enough to canvass his memory so as to provide any certainty in this regard.
[12] Moreover, there was no reason for the trial judge to order a stay of proceedings at the outset of the trial, rather than allowing it to proceed and assessing the issue of possible prejudice at its conclusion. Indeed, the cases point out that the remedy of a stay for an abuse of process should be exercised only rarely. It is clearly desirable that cases be decided on their merits, if possible.
[13] Thus, in our view, the trial judge should not have stayed the charges upon the record before him.
[14] There is one further issue raised by the respondent that requires some comment. The respondent argues that the trial judge should have stayed the charges because of improper Crown conduct. Shortly before the trial, the Crown attorney learned that a private investigator retained by defence counsel was seeking to interview the complainant’s husband. The respondent’s release order contained a standard provision prohibiting the respondent from having direct or indirect contact with the complainant. The Crown attorney thought that the intended contact by the private investigator breached that condition. Apparently, the complainant did not want to have any contact with anyone from the defence team.
[15] The Crown attorney left a voicemail message for defence counsel indicating that there should be no contact with the complainant or her husband and, on one interpretation of that message, she threatened criminal charges if there was contact. She followed this phone call with a letter, approved by a senior Crown, to the same effect.
[16] Defence counsel responded to the phone message and letter by launching an abuse of process motion claiming Crown misconduct.
[17] During the argument of this appeal, we were surprised to learn that the Crown’s office does not have a position as to whether a defence lawyer or an investigator acting for an accused is entitled to contact a witness or a complainant for purpose of preparing for trial when there is a no contact provision directed at an accused. Since there is no property in witnesses, it seems to us that such a provision would not operate in the way the Crown in this case apparently thought it did. We suggest that the Crown Law Office develop a policy with respect to the specific wording of bail terms when it is proposed that there be a limitation on defence counsel’s ability to contact witnesses in order to prepare for trial. It makes sense that the policy provide that limitations of that nature be dealt with expressly by the court after hearing from both sides.
[18] Coming back to this case, we accept that the Crown attorney was in error in the way she interpreted the no contact provision and was somewhat overzealous in her approach to defence counsel. However, as the trial judge noted, there is nothing to suggest she acted in bad faith. We also observe that defence counsel could simply have sought clarification about what was obviously a different view about the effect of the no contact provision by discussing the matter with the Crown or seeking a clarification from the court. One would hope that on both sides, disagreements such as this could be handled in a less confrontational way.
[19] In any event, we do not think that the Crown’s action here amounted to the type of abuse that warrants a stay of the charges.
[20] In the result, the appeal is allowed, and the stay of proceedings is set aside without prejudice to the respondent’s ability to renew the application at the conclusion of the trial if he sees fit to do so.
“R. McMurtry C.J.O.”
“Dennis O’Connor A.C.J.O.”
“Doherty J.A.”