ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-09-3822
DATE: 20120118

B E T W E E N:

Her Majesty the Queen

B. McGuire and S. Ferrone, for the Crown

• and -

Asizkpor Dessouza

E. Ghebrai

Defendants

HEARD: January 13 and 17, 2012

RULING ON STAY APPLICATION

Ricchetti, J.

The Charges

[ 1 ] Mr. Dessouza has been charged with:

a. Sexual assault on M.G. with a weapon on April 27, 1996; and

b. Uttering a death threat to M.G. on April 27, 1996.

The Trial

[ 2 ] The jury trial of this matter started with a pre trial meeting with counsel on January 3, 2012. Pre trial motions were heard on January 4, 2012. A jury was selected on January 5, 2012. The pre trial motions continued on January 6, 2012. Written reasons for the rulings were delivered to counsel prior to the commencement of trial.

[ 3 ] The Crown began calling evidence on Monday, January 9, 2012. The Crown called Ms. G., the complainant. The Crown called three further witnesses: Constable D. MacNeil (the arresting officer), Constable P. Morandin (the officer who secured Mr. Dessouza’s apartment pending a search warrant) and Constable C. Preddie (the identification officer).

[ 4 ] The Crown had advised the court Constable Preddie would be the last witness for the Crown. The Crown’s case was expected to be completed around midday Wednesday, January 11, 2012.

[ 5 ] Near the very end of the Defence’s cross examination of Constable Preddie, he was asked whether items seized by the police and tests done on Ms. G. at the hospital (the "Seized Items") had been sent to the Center for Forensic Sciences (CFS). Constable Preddie testified the items had not been sent to CFS and then offered an explanation based on hearsay evidence from other police officers who had not testified.

[ 6 ] The jury was excused. The Defence brought an application for a mistrial. Submissions were heard on the afternoon of Wednesday, January 11, 2012.

[ 7 ] On Thursday morning, January 12, 2012, the court was ready to rule on the mistrial application. Prior to doing so, the Defence brought this stay application.

[ 8 ] The court released its ruling dismissing the mistrial application for written reasons dated January 12, 2012.

[ 9 ] The Defence requested time to prepare for the stay application. The Crown also requested some time to look into the location of the Seized Items.

[ 10 ] A voir dire was held on Friday January 13, 2012. Constable Preddie and Constable C. Christidis testified. Counsel also agreed that the videotaped police interview of Mr. Dessouza dated April 27, 1997 would form part of the evidence on the voir dire.

[ 11 ] On January 13, 2012 the court heard submissions on whether there was a breach of s. 7 of the Charter. The circumstances surrounding the loss of the items were discrete and not dependent on the balance of the trial evidence. The real issue at this stage was whether the Crown could establish that the Seized Items were not lost as the result of “unacceptable negligence” on the part of the police.

[ 12 ] As set out in R. v. Bero , (2000) 2000 16956 (ON CA) , 137 O.A.C. 336 at para. 18 :

The trial judge should not have ruled on the motion at the outset of the trial. This Court has repeatedly indicated that except where the appropriateness of a stay is manifest at the outset of proceedings, a trial judge should reserve on motions such as the motion brought in this case until after the evidence has been heard. This Court has repeatedly indicated that except where the appropriateness of a stay is manifest at the outset of proceedings, a trial judge should reserve on motions such as the motion brought in this case until after the evidence has been heard. The trial judge can more effectively assess issues such as the degree of prejudice caused to an accused by the destruction of evidence at the end of the trial: R. v. B.(D.J.) , (1993), 16 C.R.R. (2d) 381 at 382 (Ont. C.A.) ; R. v. A.(S.) , (1992), 60 O.A.C. 324 at 325 (C.A.) . The approach favoured by this Court was approved in R. v. La , (1997), 1997 309 (SCC) , 116 C.C.C. (3d) 97 at 107-108 (S.C.C.) . In keeping with that approach, I will consider the appellant’s claim that a stay should have been granted in the light of the evidence which was adduced at the trial.

[The remainder of the judgment text continues exactly as provided in the source HTML, preserving every paragraph, heading, and sentence verbatim.]

Ricchetti, J.

Released: January 18, 2012.

COURT FILE NO.: CR-09-3822
DATE: 20120118

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and – Asizkpor DESSOUZA Defendant RULING ON STAY APPLICATION Ricchetti, J.

Released: January 18, 2012