Court Information

Date: December 17, 2020

Information No.: 4811-998-20-15004282-00

Ontario Court of Justice

Her Majesty the Queen v. A.B.C.

Ruling on Order of Proceedings

Remotely Before the Honourable Justice M. Block

on December 17, 2020, Ontario Court of Justice, Old City Hall

Appearances

M. Brown – Counsel for the Crown

J. Hechter – Counsel for A.B.C.

Judgment

BLOCK, J. (Orally):

This is my judgment on the order of proceedings in this matter. The accused is charged with the sexual assaults of two men. Aside from the contest over the merits of the Crown's case against the defendant, the Court is aware that the defendant intends to apply for a stay of the charges on several bases. The defendant intends to challenge, pursuant to Charter Section 7, 8 and 15, the constitutionality of the statute and regulations which permit the police to publish a media release identifying the defendant and detailing the accusations against him.

The defendant also contends that evidence crucial to their ability to make full answer and defence was lost as a result of the unacceptable negligence, at least, of the police during the investigation of these matters.

I rule that the determination of whether the Crown has proved the allegations beyond a reasonable doubt will precede the potential determination of the constitutional challenge and the lost evidence issue.

Here are my reasons.

The Timing of the Lost Evidence Issue

In virtually every case these applications are best dealt with after the main event. There are two reasons. Firstly, the damage done by the lost evidence is best assessed after the evidence has been heard and by that, I mean the totality of the trial evidence. The application itself may well be moot at that point. In this regard, see R. v. Bero, [2000] OJ No. 419, [Court of Appeal].

Timing of the Constitutional Attack on Legislation

The case law suggests that where the merit of the challenge is difficult to assess in advance as in my view, the matter before me, the appropriate course will usually be to schedule argument on the application to follow the determination of whether the Crown has proved the matter beyond reasonable doubt. And in this respect, see R. v. Martin, [1991] OJ No. 1161.

Judicial Restraint

The well-established practice of our courts is that judges should not pronounce on issues that are not necessary to decide the case. This is true of both appellate courts and trial courts. It is particularly true of constitutional issues, such as the one that is proposed before me. In this respect, see Lloyd, 2016 SCC 13, [2016] 1 SCR 130.

Judicial Resources

If the trial on the merits concludes with the acquittal of the defendant, the other potential contests in this proceeding are moot. Adjusting the order of proceedings to ensure that the Court pronounces on potentially interesting constitutional issues may result in the unnecessary prolongation of proceedings and offend the necessary deference to judicial economy. I find merit in the Crown's proposition that if the Court determines the merit of the constitutional issues alone in favour of the defendant without rendering a verdict on the merits of the case, a successful appeal will result in a new trial on the merits. This duplication will result in the unnecessary consumption of additional court resources. (See R. v. Scott, [2002] OJ No. 2180, Court of Appeal.)

Trial courts are required to manage court time and judicial resources efficiently. This is no mere platitude. The Supreme Court of Canada has so directed lower courts in Jordan and Cody. The case of R. v. Sciascia, 2017 SCC 57, [2017] 2 SCR 539, is a matter in which the Court confirmed the jurisdiction of this court to proceed with a common trial on both an information alleging a summary Criminal Code offence and an information alleging a Highway Traffic Act infraction, all arising out of the same transaction. That approach would eliminate the necessity of conducting two trials for one defendant as a result of one incident.

Of course, that narrow jurisdictional issue has no relation to the matter before me, but the broader approach of Justice Moldaver is relevant. Where there is a trial management approach that does not prejudice the defendant and is a more efficient use of court resources, that approach should prevail unless statute-barred.

Reputation of the Administration of Criminal Justice

I hope I'm doing justice to Mr. Hechter's position on behalf of the defendant. I understand his position to be that by concluding a trial on the merits before addressing the Charter issues raised, particularly the constitutional propriety of the legislation, this Court risks associating itself with the police misconduct or countenancing the continued prejudice endured by the defendant.

I do not accept that by performing its function, that is hearing evidence and rendering verdicts, this Court risks association with the alleged misconduct whether or not the impugned police action is proved.

There is no evidentiary basis now before me on which I can conclude that any prejudice suffered by the defendant will be prolonged by this order of proceedings.

In the case of Tran, 2010 ONCA 471, the Court of Appeal held that the Crown's collaboration at trial with Peel Region police officers, who had brutally beaten the defendant while he was in their custody, constituted Crown condonation of their conduct. I do not believe that there is any authority for the proposition that by hearing the merits of this case, this Court risks being tarred by association with police misconduct or constitutionally invalid legislation.

Covid

Along with almost every other aspect of modern existence, the present pandemic has injected a new urgent and overriding consideration into the management of court resources in 2020. The assets of the administration of criminal justice have been stretched to the breaking point.

The obligation to manage court resources efficiently currently has an even greater overriding importance than in pre-pandemic times.

That is my ruling.