Decision on Application to Stay

[1] These are reasons with respect to an application by the defence during the trial, heard on April 4, 2013, for a stay of proceedings, or in the alternative a mistrial. The application was dismissed for oral reasons given on April 5, 2013, with written reasons to follow after the conclusion of the trial.

[2] I.W.S. is charged with one count of sexual assault, contrary to s. 271 of the Criminal Code and one count of sexual exploitation, contrary to s. 153(1)(a) of the Criminal Code.

[3] The offences were alleged to have occurred on March 6, 2011. The complainant is I.W.S.’s daughter, C.S..

[4] The trial commenced on November 13, 2012. The complainant was the first witness. At the noon recess on the first day of the trial, before completion of examination in chief of the complainant, the Crown came into possession of approximately 40 pages of Facebook messages between a Crown witness, J.S., and the Facebook account of the accused, date stamped March 6, 2011, the date of the alleged offences.

[5] J.S. first disclosed the existence of these Facebook texts to police on November 13, 2013.

[6] The Crown disclosed these documents to the defence over the noon recess. When court resumed at 2:00 p.m., the case was adjourned, on consent, at the request of the defence, to review and consider the documents.

[7] The trial resumed on April 2, 2013.

[8] On April 3, 2013, J.S. was examined and cross-examined. The examinations included extensive questions on the Facebook entries.

[9] Also on that date, M.K. was called as a witness by the Crown. She had given a statement to the Ontario Provincial Police on March 7, 2011, which the defence had reviewed well in advance of trial. However, unbeknownst to the Crown, M.K. had given a second statement to the police on November 13, 2012, in which she contradicted certain parts of her first statement. The Crown received the second statement from the police on April 3, 2013. The Crown brought an application on April 3, 2013, at trial to cross-examine M.K. under s. 9(2) of the Evidence Act on inconsistencies between her evidence at trial and the March 7, 2011 and November 13, 2012 statements given to the police. The Crown gave the November 13, 2012 statement to the defence as soon as it discovered its existence. The defence agreed that because of inconsistencies in the two statements and in M.K.’ testimony, the Crown was entitled to cross-examine M.K. under s. 9(2) of the Evidence Act. The Crown cross-examined M.K.. The defence then conducted its own cross-examination of M.K..

[10] On April 3, 2013, after completion of the evidence of M.K., the defence was given a second statement of J.S., taken by the police on November 13, 2012. Again, the statement only came into the hands of the Crown on that date, although it had been in the possession of the investigating police officer since November 13, 2012. The statement related to the Facebook entries that had been produced on November 13, 2012 and largely pertained to J.S.’s understanding of a number of short hand and Anishinaabe slang words found in the Facebook entries. At trial on April 3, 2013, before the Crown and defence became aware of the November 13, 2013 statement, J.S. had been examined by the Crown and cross-examined by the defence as to her understanding of the meaning of the short hand and Anishinaabe slang words appearing in the Facebook entries.

[11] Although the defence did not raise any objection to the continuation of the trial after receiving disclosure of the Facebook entries on November 13, 2012, nor after receiving the November 13, 2012 statement of M.K. on April 3, 2013, the defence applied on April 4, 2013 for a stay of proceedings, or in the alternative, a mistrial, on the grounds that the disclosure of the November 13, 2012 statement from J.S. resulted in late disclosure which, as part of a constellation of late disclosures, compromised the fairness of the trial.

[12] On April 4, 2013, I heard submissions and received case law from the defence and the Crown.

[13] Both counsel for the defence and the Crown requested that I give my ruling on April 5, 2013, rather than at the conclusion of trial. I agreed with the request. On April 5, 2013 I dismissed the application. I found that the defence had not established that either remedy was appropriate in light of case law from the Supreme Court of Canada and the Court of Appeal which held that such remedies were appropriate only in the clearest of cases, as a last resort remedy, to be taken after all other acceptable avenues of protecting the accused’s right to a full answer and defence was exhausted.

[14] I was satisfied that the circumstances of the issues in this case were distinguishable from the facts in R. v. Johnson, [2002] O.J. 2228 (C.A.), where the Court of Appeal held that the decision as to a stay should not have been made until all the evidence had been heard. The Court of Appeal found that the record before the trial judge in that case was extremely sparse. The trial judge heard the application for a stay before the commencement of trial. I found that the statements of M.K. and J.S. and the Facebook messages were narrow in their scope and that there was a sufficient evidentiary record to assess the materiality of the new evidence and to determine what real impact, if any, that evidence would have on the accused’s right to make full answer and defence. I also took into account the joint request by the defence and the Crown to decide the issue forthwith.

[15] I adopted the position taken by Madame Justice Beard (as she then was) in R. v. Korski, [2007] M.J. 276 (O.B.), and dismissed the application with the proviso that the defence could renew the application before the conclusion of the trial if it believed that subsequent evidence demonstrated that late disclosure did in fact impair the accused’s right to make full answer and defence and did cause an irreparable prejudice to that right. (The trial concluded without a renewal of the application).

[16] After dismissing the application, I advised counsel that I was prepared to hear submissions for an adjournment or for the recall of J.S. as remediation of any prejudice that may have been caused to the accused. The defence advised that it did not wish an adjournment or to have C.S. recalled.

[17] In R. v. Reagan, 2002 SCC 12, [2002] 1 S.C.R. 297 (S.C.C.), Lebel J. set out the approach that a trial judge should follow in considering an application for a stay of proceedings as follows, at paras 53 and 54:

53 A stay of proceedings is only one remedy to an abuse of process, but the most drastic one: “that ultimate remedy”, as this Court in Tobiass, supra, at para. 86, called it. It is ultimate in the sense that it is final. Charges that are stayed may never be prosecuted; an alleged victim will never get his or her day in court; society will never have the matter resolved by a trier of fact. For these reasons, a stay is reserved for only those cases of abuse where a very high threshold is met: “the threshold for obtaining a stay of proceedings remains, under the Charter as under the common law doctrine of abuse of process, the ‘clearest of cases” (O’Connor, supra, at para. 68)

54 Regardless of whether the abuse causes prejudice to the accused, because of an unfair trial, or to the integrity of the justice system, a stay of proceedings will only be appropriate when two criteria are met:

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. [O’Connor, at para. 75]

The Court’s judgement in Tobiass, at para. 91, emphasizes that the first criterion is critically important. It reflects the fact that a stay of proceedings is a prospective rather than a retroactive remedy. A stay of proceedings does not merely redress a past wrong. It aims to prevent the perpetuation of a wrong that, if left alone, will continue to trouble the parties and the community as a whole, in the future.

[18] In R. v. Taillefer; R. v. Duguay, 2003 SCC 70, [2003] 3 S.C.R. 307 (S.C.C.), decided approximately one year after R. v. Reagan (supra), Lebel J. made further observations on a stay of proceedings, at paras. 117-119:

117 This Court has frequently underlined the draconian nature of a stay of proceedings, which should be ordered only in exceptional circumstances. A stay of proceedings is appropriate only “in exceptional circumstances. A stay of proceedings is appropriate only “in the clearest of cases”, that is, “where the prejudice to the accused’s right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued.” It is a “last resort” remedy, “to be taken when all over acceptable avenues of protecting the accused’s right to full answer and defence are exhausted.”

118 In O’Connor, this Court adopted principles to circumscribe the power to order a stay of proceedings. These principles confirm the seriousness of such a decision and the need for a careful and balanced analysis of all the interests at stake – the interests of the accused, of course, but also the interest of the public in crime being punished and in criminal cases being diligently prosecuted. Those principles hold that a stay of proceedings will be an appropriate and fair remedy where”

(1) 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

(2) no other remedy is reasonably capable of removing that prejudice.

119 These criteria recognize the prospective rather than retroactive nature of the remedy. Although, in very rare circumstances, the conduct of the prosecution may be so serious that a stay of proceedings is required in order to avoid bringing our system of justice into disrepute, it is not the purpose of this remedy to punish blameworthy conduct on the part of the State. The remedy is primarily meant to prevent an abuse from being perpetuated or aggravated.

[19] The draconian nature of a stay of proceedings and the criteria that must be satisfied before it is granted find similar expression when it is an application for mistrial that is being considered. In R. v. Toutissani, [2007] O.N.C.A 733, McPherson J.A. stated at para 9:

9 I explicitly endorse the application judge’s statement that “[t]he declaration of a mistrial, like the declaration of a stay, should be granted only as a last resort, in the clearest of cases and where no remedy short of that relief will adequately redress the actual harm accompanied.”

[20] Although the defence in the instant case was not seeking an order excluding the evidence, the following comments of Watt J.A. in R. v. Spackman, [2012] ONCA 905, at paras. 136-141, dealing with the exclusionary remedy under s. 24(1) of the Charter where there has been failure to disclose or late or delayed disclosure, are of assistance in considering the issues of a stay or a mistrial:

136 The trial judge did not have the benefit of the guidance provided by the Supreme Court of Canada in Bjelland when he made his ruling on March 2, 2009. Several principles emerge from Bjelland that are critical to an assessment of the correctness of the trial judge’s ruling.

137 First, a failure to disclose, as well delayed or late disclosure, without more, does not violate the right of an accused to a fair trial. As a general rule, an accused must go further to show actual prejudice to his or her right to make full answer and defence: Bjelland, at para. 21: O’Connor, at para. 74. Absent an infringement of the right to make full answer and defence, no infringement of either s. 7 or s. 11(d) of the Charter has occurred, thus the critical condition precedent to the operation of s. 24(1) as an exclusionary mechanism remains unsatisfied and access to the remedy s.24(1) provides is unavailable.

138 Second, evidentiary exclusion is an exceptional remedy for failed or late disclosure, available only where the late disclosure renders the trial unfair and cannot be remedied by an adjournment and disclosure order, or where exclusion is necessary to preserve the integrity of the justice system: Bjelland, at para. 24.

139 Third, the appropriate focus in most cases of failed or late disclosure is remediation of any prejudice caused to the accused, as well as safeguarding the integrity of the justice system: Bjelland, at para. 26. Neither is necessarily secured by evidentiary exclusion.

140 Fourth, in some cases, an adjournment and disclosure order may not be appropriate because the admission of evidence compromises the integrity of the justice system. Evidentiary exclusion may be appropriate where the Crown has withheld evidence by deliberate misconduct amounting to an abuse of process. On the other hand, even in such cases, society’s interest in a fair trial that reaches a reliable determination of an accused’s innocence or guilt on all the available evidence cannot be ignored, especially where the crime charged is serious: Bjelland, at para. 27.

141 Finally, the fair trial interest is not the exclusive preserve of the accused. A trial must be fair, not only from the perspective of the accused, but equally from the perspective of society generally: Bjelland, at para. 22. A fair trial is a trial that satisfies the public interest at getting at the truth, at the same time preserving basic procedural fairness for the accused: Harrer, at para. 45.

[21] There is no evidence that the Crown or the police deliberately withheld disclosure of the Facebook entries or of the two witness statements.

[22] The Facebook entries only became known to the police and to the Crown on November 13, 2012 when J.S. told the police of their existence. The Crown provided the defence with the Facebook entries immediately after it became aware of them.

[23] The second statement of M.K. and the statement of J.S., both dated November 13, 2012, were not known to the Crown until April 3, 2013, after which, immediate disclosure was made to the defence. Unlike the Facebook entries, the statements had been in the possession of the police for four months but, through inadvertence, the police did not give them to the Crown until April 3, 2013. For the purposes of this application, the actions of the police and the Crown cannot be separated. However, there is no suggestion of any deliberate attempt to hide the statements or any other form of deliberate misconduct amounting to an abuse of process.

[24] No criticism can be made of the police or the Crown for the fact that the Facebook entries only came to light on November 13, 2012 when J.S. told the police of their existence. J.S. was initially a Crown witness because on March 5, 2011, she had been invited over to the complainant’s home by the complainant. There would have been no reason for the police to know or suspect that in the early hours of March 6, 2011, J.S. would be chatting on Facebook with the complainant’s father, the accused.

[25] Criticisms can be made of the police for not telling the Crown until April 3, 2013 of the existence of the two witness statements, but that was an oversight by the police, not at an attempt to hide the statements.

[26] The charges in this case are serious and it is desirable that there be an adjudication of innocence or guilt.

[27] Of great importance is the fact that the defence did not show actual prejudice to the accused’s right to make full answer and defence.

[28] The defence had ample opportunity to prepare its case after the Facebook entries came to light. The defence requested an adjournment to which the Crown consented. The defence took no objection to the disclosure of the Facebook entries, nor would an objection have been warranted. The complainant, as the first witness in the trial, had not finished testifying in chief before the Facebook entries came to light after J.S. brought them to the attention of the police. The defence had the Facebook entries well in advance of its cross-examination of the complainant and well in advance of its cross-examination of J.S..

[29] The second statement of M.K., dated November 13, 2012 was given to the defence before M.K. gave her evidence. The defence did not object nor request an adjournment. In her first statement of March 7, 2011, M.K. said that when she was at the accused’s home at the time in question, she had not been drinking. She later told the police, on November 13, 2012, that she had in fact been drinking. She said that in her first statement that she had denied drinking because at that time she had been released from custody on a court imposed condition not to drink. There were also other inconsistencies between her first and second statements as to what time certain individuals went to bed and whether another male had gone upstairs to where the complainant had passed out. Both the Crown, on consent of the defence, and the defence cross-examined M.K. on her inconsistencies. The upshot was that on many significant questions M.K. agreed with whatever counsel for the Crown or the defence suggested to her. The inconsistencies between her statements and her testimony were compounded to the extent that much of her testimony was not credible.

[30] The November 13, 2012 statement of J.S. did not contain any information of significance that did not also come out in examination and cross-examination. She explained in her evidence, as she did in her statement, what certain Anishinnabe words meant and what shorthand such as “lol” (laugh out loud) and “lmao” (laugh my ass off) meant. The statement did not significantly add to or contradict the evidence that she gave at trial before the statement was disclosed.

[31] The defence was entitled to timely disclosure. Disclosure of the Facebook entries was made as soon as the entries came into the hands of the police. Disclosure of those documents therefore cannot be characterized as late disclosure. Disclosure of the two statements of November 13, 2012 was not done on a timely basis. However, late disclosure in itself is not sufficient to warrant a stay of proceedings or a mistrial. Actual prejudice must be shown. The defence did not show actual prejudice to the right to make full answer and defence. The late disclosure did not go to the integrity of the justice system. Moreover, the criteria set out in Reagan and Taillefer, necessary before a stay can be granted, were not met – prejudice would not be perpetuated by the trial or its outcome, and those remedies that were reasonably capable of removing any prejudice, namely, an adjournment or recall of a witness or both, were offered to the defence but were not taken up.

[32] The disclosure issues did not constitute exceptional circumstances. A stay of proceedings or mistrial was not an appropriate “last resort” remedy, where less draconian remedies, if indeed they were needed, were available that would have adequately addressed any possible prejudice to the accused.

[33] For these reasons, there were no grounds to grant a stay or to order a mistrial.

___”original signed by”

The Hon. Mr. Justice D. C. Shaw

Released: June 21, 2013

COURT FILE NO.: CR-12-0021

DATE: 2013-06-21

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen

and –

I.W.S.

Defendant

DECISION ON APPLICATION TO STAY

Shaw J.

Released: June 21, 2013

/mls```

Her Majesty the Queen v. I.W.S., 2013 ONSC 4323

Case Summary

Decision on Application to Stay

Counsel

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Statutory Provisions 3

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