ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-10-0070-MO
DATE: 2012-08-02

B E T W E E N:

HER MAJESTY THE QUEEN

Elaine Burton , for the crown

Crown

• and -

DONALD MILANI

Fawzia Sayeed-Cockar , for the accused

Accused

HEARD: June 4, 2012, at Thunder Bay, Ontario

Regional Senior Justice H.M. Pierce

Reasons on Motion For Direction

[ 1 ] The accused is charged with 19 counts related to sexual assaults alleged to be committed during home invasions between 1985 – 1987. He has elected trial by jury.

[ 2 ] The accused was originally charged with these offences in 1987. At a preliminary inquiry in 1989, he was committed to trial relating to one attack but discharged on the remaining counts. At trial in 1990, the accused was acquitted on the charges sent to trial.

[ 3 ] Following the trial, the science of D.N.A. analysis evolved. Investigators re-submitted samples for forensic analysis. As a result of new evidence, an indictment was preferred against the accused on charges that were dismissed 21 years earlier.

[ 4 ] The accused moves for a stay of proceedings pursuant to s. 24(1) of the Charter of Rights and Freedoms, alleging contravention of his right to be tried within a reasonable time, pursuant to s. 11(b) of the Charter. In the alternative, the accused seeks a stay of proceedings on the grounds that the delay in bringing these charges to trial constitute an abuse of process, in violation of his rights guaranteed by s. 7 of the Charter.

[ 5 ] The case is set for trial commencing January 14, 2013. An issue has arisen about whether the accused’s motion for a stay of proceedings should be argued in the course of the trial or prior to trial. The Crown and defence move for directions.

[ 6 ] The Crown submits that the motion should be heard during the course of the trial, after the evidence has been called, so that the accused has the opportunity to make full answer and defence and the judge can assess the impact of any delays on trial fairness.

[ 7 ] The defence submits that the motion should be heard in advance of the trial so that the time and expense of a trial and the risk of an adverse verdict can be avoided if a stay is granted. The defence does not allege actual prejudice as a result of the delay, only the inference of prejudice.

Discussion

[ 8 ] Counsel agree that the trial judge has discretion to determine when the motion for stay should be heard. Determination of Charter applications should be made on a sufficient evidentiary record ( R. v. G.W.R. 1996 613 (ON CA) , [1996] O.J. No. 4277, (Ont. C.A.)).

[ 9 ] The Crown argues that the s. 7 argument, i.e. trial fairness, should predominate. It contends that the accused’s ability to make full answer and defence arises out of trial. It also contends that the trial judge will be in a better position to fashion a remedy for any Charter breach after hearing the evidence at trial.

[ 10 ] The Crown relies on R. v. Steadman, [2007] B.C.J. No. 2989 (appealed on other grounds) in support of its argument that Charter motions should be heard after evidence is called at trial. Mr. Steadman’s Charter application was based on delay and on the loss of his notes during the police investigation. Interestingly, in Steadman, the Crown argued that applications for Charter relief for breaches of ss. 7 , 11(b) , 11(c) and/or 11(d) should be heard and decided before trial. The accused countered that his Charter motions should be heard after evidence was called at trial.

[ 11 ] The trial judge in Steadman concluded that, as it is open to the accused to prove actual prejudice by the calling of evidence, it is better to make that assessment after evidence is called at trial. The court directed the accused and the Crown to call evidence and make submissions on the application before trial. However, the trial judge ruled that he would reserve decision until the accused had given evidence at trial, if so advised. He ruled that if the accused elected to testify, counsel could make supplementary submissions arising out of the accused’s testimony. If the accused did not testify, the judge would deliver his decision on the Charter application. The Crown advocates this approach in the case at bar.

[ 12 ] In R. v. Hartwick, [1992] O.J. No. 2049 , the Court of Appeal held that “as a general rule, a motion to stay proceedings on the ground of unreasonable delay should be made before the trial.” A different panel of the Court of Appeal reached the same conclusion in R. v. Pioneer Construction Inc., 2006 15621 (ON CA) , 79 O.R. (3d) 641. In Pioneer, the court held that “absent unusual circumstances,” a motion for a stay of proceedings based on s. 11(b) of the Charter should be argued before trial. See also: R. v. Chue, [2011] O.J. No. 4149 (S.C.J.) , para.14.

[ 13 ] The Supreme Court of Canada concluded at para.37 of R. v. Godin, 2009 SCC 26 () , [2009] S.C.J. No. 26, that prejudice may be inferred as a result of the delay.

[ 14 ] In this case, the gravamen of the defence argument is delay. As counsel for the accused put it:

• Has there been delay?

• Was it unreasonable?

• What is the cause?

[ 15 ] Here, there is no allegation of lost evidence, as in Steadman or R. v. Kociuk 2009 MBQB 154 () , [2009] M.J. No. 208 (Q.B.) or a lost statement as in R. v. D.M. [2012] O.J. No. 119 (S.C.J.) . The defence relies on the inference of prejudice, rather than specific instances of prejudice. It maintains that there is a sufficient evidentiary record on Charter issues to be heard in advance of trial. It does not allege specific trial fairness handicaps.

[ 16 ] Inevitably, counsel are in a better position than the court to understand the issues and allegations to be presented to the court in their case. The defence evidence on the application does not point to lost evidence or specific prejudice. Rather, the defence points to the stigma of a guilty verdict even if a stay is granted after trial; the time and expense of trial; and the stress of a trial.

[ 17 ] I agree that these are important considerations. In R. v. Byron, 2001 MBCA 81 () , [2001] M.J. No. 245 (Man. C.A.), para. 22 , the court held that unnecessary trials should be avoided. It observed:

It is not in the best interests of an accused, nor the state’s, to go through unnecessary trials. From the point of view of an accused, they must incur the legal expenses of the trial as well as other expenses related to travel and loss of wages. They also have the stigma of findings of guilt. Both could have been avoided had a decision been made at the close of argument. From the point of view of the state, there is a public policy advantage in avoiding unnecessary trials. With a timely ruling on the motion, victims and witnesses could have avoided involvement in the process and costs would undoubtedly have been saved throughout.

[ 18 ] Where an adequate evidentiary record exists, a timely ruling in advance of trial will avoid the disruption to the flow of a jury trial. It will also avoid extending the trial and inconveniencing jurors. Originally, one week was booked to hear this application. The court will require time to reflect on the argument and prepare reasons in advance of rendering a decision. This cannot be done in a day, as the Crown suggests.

[ 19 ] I am of the view that there are no unusual circumstances in this case to depart from the usual practice of hearing argument on the Charter application in advance of trial. The necessary materials for the argument have been served and filed. Counsel are directed to canvas dates with the trial coordinator to schedule argument of the application well in advance of trial.

“Original Signed by”

Regional Senior Justice H.M. Pierce

Released: August 2, 2012

COURT FILE NO.: CR-10-0070-MO

DATE: 2012-08-02

ONTARIO ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Crown - and – DONALD MILANI Accused REASONS ON MOTION FOR DIRECTION Pierce, J

Released: August 2, 2012

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