COURT FILE NO.: CR13300005990000

DATE: 20131107

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

D.C.

Defendant

Megan Petrie, for the Crown/Respondent

B. Cunningham, for the Defendant/Applicant

HEARD: September 9, 2013

B. P. O’marra j.

rulings

overview

[1] On April 8, 2009 the complainant provided a statement to police alleging sexual abuse by his uncle starting when the complainant was approximately nine years old in the early 1980’s.

[2] On June 17, 2009 the accused was arrested for sexual assault. On June 18, 2009 an Information was sworn alleging three counts of sexual assault between March 1, 1981 and December 31, 1981.

[3] On September 27, 2012 the Crown filed a four count Indictment as follows:

Count 1

Gross Indecency between January 1, 1980 and September 17, 1984 (when complainant was between nine and 13 years old)

Count 2

Indecent Assault between January 1980 and January 3, 1983 (when complainant was between nine and 12 years old)

Count 3

Sexual Assault between January 4, 1983 and September 17, 1984 (when complainant was between 12 and 13 years old)

Count 4

Sexual Assault between September 18, 1984 and December 31, 1987 (when complainant was between 14 and 17 years old)

the applications

[4] The Applicant seeks relief based on the Charter and Canadian Bill of Rights as follows:

1. A declaration that the former s. 157 of the Criminal Code is of no force and effect as it violates s. 15 of the Charter. In the alternative it violates s. 1(b) of the Bill of Rights.

2. Counts 2 to 4 inclusive should be stayed based on violations of sections 7 and 11(a) of the Charter.

3. A remedy based on s. 11(i) of the Charter.

I. Count 1 – s. 15 of the Charter and s. 1(b) of the Bill of Rights

[5] Count 1 on the Indictment alleges Gross Indecency for acts committed between January 1, 1980 and September 17, 1984 contrary to former s. 157 of the Criminal Code.

157. Every one who commits an act of gross indecency with another person is guilty of an indictable offence and is liable to imprisonment for five years.

158(1) Section 155 and 157 do not apply to any act committed in private between

(a) a husband and wife, or

(b) any two persons, each of whom is twenty-one years or more of age, both of whom consent to the commission of the act.

[6] These sections were repealed in 1985.

[7] The exceptions to former s. 157 set out in former s. 158 do not afford a defence of consent if one is less than 21 years of age or they are not married.

[8] The Applicant submits this constitutes discrimination and inequality based on age and marital status and thus contravenes s. 15 of the Charter. In the alternative, he submits it contravenes s. 1(b) of the Canadian Bill of Rights.

Charter s. 15(1)

[9] Section 15(1) of the Charter states:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

[10] Section 32(2) of the Charter provides that s. 15 shall not have effect until three years after this section comes into force. Thus, s. 15(1) of the Charter came into force on April 17, 1985.

bill of rights

[11] Section 1(b) of the Bill of Rights states:

(1) It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,

(b) the right of the individual to equality before the law and the protection of the law;

retrospectivity of the charter

[12] The alleged offence contrary to former s. 157 ended several months before s. 15 of the Charter came into effect.

[13] The Supreme Court of Canada has held that the Charter does not apply retrospectively.

See: R. v. Stevens, [1998] 1 S.C.R. 1153 at paras. 1-4.

Bill of rights: test for application of s. 1(b)

[14] The test for the application of s. 1(b) of the Bill of Rights is as follows:

There must be a federal objective that provides a reasonable justification for the particular inequality in the sense that the inequality is not clearly arbitrary or capricious, but finds some legitimate basis in the particular legislative policy.

The burden is on the person invoking s. 1(b) of the Bill of Rights to show an inequality created by federal legislation is not justified by a valid federal objective.

See: R v. Cornell, [1988] S.C.R. 401 at paras. 16 and 21.

analysis

[15] In R. v. Khadikin, 1986 1171 (BC SC), 29 C.C.C. (3d) 154 (B.C. S.C. 1986), the former s. 158 (1)(b) of the Code was challenged as discriminatory on its face on the basis of age. The Applicant relied on both the Charter and the Bill of Rights.

[16] The Court ruled that s. 15 of the Charter does not apply retrospectively to offences which allegedly took place before that section was proclaimed.

[17] The Court also addressed the issue of a stipulation of age in a statute dealing with individual conduct:

I was not referred to any authority which declares that a stipulation of age in a statute dealing with individual conduct must, on its face without more, be judged discriminatory in a manner that would justify ruling the statute invalid. Parliament might well have concluded and still be of the opinion that it is socially desirable to protect persons under the age of 21 from engaging in acts of buggery or gross indecency, perhaps with a view of discouraging male prostitution or other undesirable consequences of such conduct. Certainly Parliament considered it was desirable to protect some segment of society from the consequences of engaging in such conduct and I have no evidence before me from which I can conclude it was being capricious or unreasonably arbitrary in selecting 21 years as the age below which such conduct would be considered criminal. In any event Parliament was clearly competent to enact s. 158(1)(b). As noted by Professor Hogg in his text “Constitutional Law of Canada”, 2nd ed. (1985) at p. 785:

“On the first issue – the power to enact discriminatory laws – the position before April 17, 1985, when s. 15 of the Charter of Rights comes into force, is dictated by the doctrine of parliamentary sovereignty: generally speaking, the Parliament of a Legislature can discriminate as it pleases in enacting otherwise competent legislation.”

The application is dismissed.

Para. 21.

[18] In R. v. Stymiest (No. 2), (1993), 1993 6881 (BC CA), 81 C.C.C. (3d) 141 (B.C. C.A.), the Court found that former s. 156 of the Criminal Code (Indecent Assault by a male on a male) was not discriminatory within the meaning of s. 1(b) of the Bill of Rights.

[19] The Court found that the former s. 156 was in pursuit of a valid legislative objective of intending to punish indecent assaults by males upon other males or consensual indecent sexual assaults by a male on a male who was under the age of 14 years. That legislative objective provided a reasonable justification for the inequality complained of in the sense it was not clearly arbitrary or capricious, but had a legitimate basis in the policy behind the legislative objective.

Para. 25

[20] In R. v. Sharpe [2004] BCSC 240, the accused was charged with Gross Indecency and Indecent Assault on a male. The alleged offence dates ran from January 1, 1978 to January 3, 1983, inclusive. By the time of trial in 2004 those former sections of the Code had long been repealed.

[21] Mr. Sharpe brought a Charter challenge under sections 7 and 15. He sought a declaration that the repealed sections were of no force and effect. The Court cited R. v. Stevens, supra, and found that the Charter did not apply retrospectively.

[22] Justice E.R.A. Edwards of the British Columbia Supreme Court ruled that based on the Stymiest decision he was bound to find that former s. 156 was not discriminatory within the meaning of s. 1(b) of the Bills of Rights. He went on to say the same conclusion would follow with regard to former s. 157.

Para. 49.

[23] The Applicant has referred to the Ontario Court of Appeal decision in R. v. C.M., 1995 8924 (ON CA), [1995] O.J. No. 1432, aff’g 1992 12798 (ON SC), [1992] O.J. No. 1575. The Court affirmed the trial decision that s. 159 of the Criminal Code (anal intercourse) violated s. 15 of the Charter and was not saved under s. 1 of the Charter. However, the dates of those alleged offences begain in 1986, so s. 15 of the Charter applied.

[24] Over several years provincial and federal legislatures have modified and lowered the age of majority for various purposes, i.e.:

• drivers licences

• voting

• purchase and consumption of alcohol

[25] The age limits set by law recognized a valid legislative intent to protect young persons and foster responsible conduct. The fact that the legal ages were lowered over time does not render the original age of 21 as arbitrary or capricious. Likewise, the former provisions of the Criminal Code that sought to protect young persons under 21 years of age should not be viewed as arbitrary or capricious.

[26] The federal objective in enacting former s. 157 was the protection of unmarried people under 21 years of age related to certain sexual activity. In a law aimed at protecting youth, the age of 21 was not arbitrary or capricious.

[27] The alleged offences here of Gross Indecency against the Applicant involve a complainant who was his nephew and between the ages of 9 and 13 years.

conclusion on the challenge to the former s. 157 based on the charter and the bill of rights

1. The alleged offence of Gross Indecency occurred before s. 15 of the Charter was in effect. Therefore, the Charter does not apply.

2. The former sections 157 and 158 of the Code do not contravene s. 1(b) of the Bill of Rights.

s. 11(i) of the charter

[28] s. 11(i) of the Charter provides as follows:

Any person charged with an offence has the right if found guilty of the offence and if the punishment for the offence has been varied between the time of the commission and the time of sentencing, to the benefit of the lesser punishment.

[29] The Applicant seeks a remedy under this section premised on his position that the former s. 157 contravenes the Charter or the Bill of Rights.

[30] Section 11(i) of the Charter relates only to sentencing matters. This part of the application is at least premature. I see no basis at this time to make any order based on s. 11(i).

II. s. 7 and 11(a) of the Charter

the chronology

[31] On June 17, 2009 the Applicant was arrested for sexual assault.

[32] On June 18, 2009 an Information was sworn alleging three counts of sexual assault between March 1, 1981 and December 31, 1981.

[33] On June 8, 2010 a Preliminary Hearing commenced. The sole complainant testified in chief. Cross-examination commenced and questions were asked as to whether the complainant consented to sexual activity with the Applicant.

[34] Before cross-examination of the complainant was completed counsel realized that the offence of Sexual Assault under s. 271 of the Code was not in effect for the time period set out in the Information.

[35] The Crown suggested that when testimony was complete he would seek a committal for trial on offences of Gross Indecency and Indecent Assault on a Male. The latter offences were in effect for the relevant time period.

[36] The Preliminary Hearing was adjourned to July 26, 2010 for submissions on whether the presiding Justice had jurisdiction to continue the hearing.

[37] On July 26, 2010 the Crown proposed to present a new Information with the correct charges and have the evidence already heard apply to that Information. The Crown submitted that this proposal reduced potential delay and prejudice to the Applicant.

[38] The Applicant did not agree to this proposal. The presiding Justice agreed that the Crown’s proposal was reasonable and efficient. However, he felt it could only be done on consent. The original Information was withdrawn by the Crown.

[39] On August 17, 2010 a new Information was sworn alleging Gross Indecency between September 1, 1980 and September 30, 1984.

[40] October 14, 2010 was the first appearance on the new Information. The Applicant appeared by counsel who filed a designation.

[41] The second Preliminary Hearing proceeded on November 1, 2011. On consent a transcript of the complainant’s evidence from the first Preliminary Hearing was filed as the evidence in chief for the second hearing. The Crown asked no further questions. Counsel for the Applicant cross-examined the complainant. Another witness requested by the Applicant was called to testify. The Applicant was committed for trial on the charge of Gross Indecency.

[42] A new Indictment was filed on September 27, 2012 alleging four counts of sexual related offences related to the sole complainant. The trial was scheduled to begin in January of 2013.

[43] On December 14, 2012 the Applicant applied to adjourn the trial date based on anticipated Charter applications. The Applicant waived his s. 11(b) rights in relation to any delay caused by the adjournment. A new trial date was set for September 3, 2013. That date was later found to conflict with a Judges’ conference. December 3, 2013 was set for trial.

s. 7 and 11(a) of the Charter

s. 7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accord with the principles of fundamental justice.

s. 11 Any person charged with an offence has the right

a) to be informed without unreasonable delay of the specific offence

[44] The following factors must be considered in assessing the reasonableness of a delay in informing a person charged of the specific offence:

(1) the length of the delay

(2) the waiver of time periods

(3) the reasons for the delay

(4) prejudice to the accused

R. v. Delaronde, 1996 6332 (QC CA), [1996] Q.J. No. 535 (Que. C.A.) para. 37.

[45] The burden of proving prejudice falls to the Applicant.

R. v. Delaronde, para. 59.

[46] Prejudice in the context of s. 11(a) of the Charter relates to fair trial interests.

R. v. Delarond, at paras. 56, 58 and 62.

[47] Once charges are laid with respect to a series of incidents additional charges can be laid at a substantially later time based on the same series of events without offending s. 11(a) of the Charter. Once a charge is laid the accused must be provided without unreasonable delay with the information necessary for him to prepare his defence.

R. v. Cancor Software Corp. 1990 6817 (ON CA), [1990] O.J. No. 1287 (OCA, July 16, 1990) at paras. 23 and 24.

additional or substituted charges based on evidence at a preliminary hearing

[48] Upon completion of evidence at a Preliminary Hearing an accused may face additional or other charges in the Superior Court based on facts disclosed by the evidence.

See Criminal Code s. 548(1)(a) re: committal on other indictable offences in respect of the same transactions.

s. 574(1)(b) Prosecutor may prefer any charges founded on the facts disclosed on the preliminary hearing, in addition to or substitution for any charge on which person was ordered to trial.

[49] The right of the Crown to prefer further or substituted charges on an Indictment pursuant to s. 574(1)(b) may be exercised at any time after committal until the accused is called upon to plead.

R. v. Garcia 1990 216 (BC CA), 75 C.R. (3d) 250 (B.C. C.A February 1990).

R. v. Yonadam [2009] O.J. No. 1213 (S.C.O. March 2, 2009).

analysis

[50] The Applicant filed an Affidavit setting out the prejudice he has suffered in support of his claim under sections 7 and 11(a) of the Charter.

[51] The asserted prejudice primarily relates to the stress and anxiety flowing from the length of time awaiting trial. This is the type of prejudice often referred to in applications under s. 11(b) of the Charter.

[52] It is noteworthy that the affidavit in support of the s. 11(a) motion also refers to s. 11(b). A review of the chronology of this case explains why the s. 11(b) motion was abandoned. It also illustrates tactical decisions by the Applicant that undermine his motion under s. 11(a).

[53] The first three factors that must be assessed in an application under s. 11(a) are as follows:

1. the length of the delay

2. the waiver of any time periods

3. the reasons for the delay.

R. v. Delronde, para. 37.

[54] The Applicant had a choice to make in June and July of 2010 when the first Preliminary Hearing proceeded. He was not obliged to proceed in the manner suggested by the Crown on July 26, 2010. However, that tactical decision added some 15.5 months to the time before committal on November 1, 2011. This was likely significant in the later decision to abandon the s. 11(b) application. It also is important in assessing the prejudice asserted on the s. 11(a) motion.

[55] The Applicant’s decision to apply for an adjournment of the original trial date in the Superior Court added a further 8.5 months of delay.

[56] Tactical decisions by the Applicant in both levels of the Court added approximately two years to the time to trial.

[57] Tactical decisions by counsel that have an effect on the progress of proceedings are attributable to the defence in assessing responsibility for delay under s. 11(b) of the Charter.

R. v. Kugathasan, 2012 ONCA 545 at para. 12.

[58] Where an Applicant under s. 11(a) of the Charter alleges prejudice based on delay the same principle should apply.

[59] Prejudice in the context of s. 11(a) of the Charter relates to fair trial interests.

R. v. Delaronde (supra).

[60] There are two aspects of the prejudice asserted by the Applicant that potentially relate to fair trial interests. They are:

1. concern that the Applicant’s memory of relevant events will fade over time; and

2. the challenge of dealing with different available defences for some of the charges.

[61] As a very general proposition it is reasonable to assume that some memories may fade over time. However, the Applicant made tactical decisions that significantly elongated the time to trial. That diminishes the weight attributable to this assertion on a motion to stay these serious charges.

[62] The Applicant has been represented by counsel throughout. They have reviewed and prepared the case as it progressed. The Applicant will not be starting from a blank slate when the trial commences. He will be able to prepare and refresh his memory with the assistance of his counsel.

[63] The passage of time in this case, much of it attributable to the Applicant, has given him ample time to prepare for the allegations that have been known to him since June of 2009. The sole complainant has been examined and cross-examined at the Preliminary Hearing.

[64] If the Applicant claims that he is prejudiced in dealing with different defences to the various charges he may seek a severance of counts at trial.

Criminal Code, s. 591(3)(a).

[65] A fair trial does not mean the most favourable trial possible from the accused’s point of view.

R. v. Harrer (1995) 1995 70 (SCC), 101 C.C.C. (3d) 193 (SCC) at paras. 15 and 45.

R. v. R.D.S. 1997 324 (SCC), [1997] 3 S.C.R. 484 at para. 96.

[66] I do not see how the Applicant’s fair trial interests have been adversely impacted in this case.

conclusion

[67] From June 17 of 2009 when he was arrested the Applicant knew he faced allegations of inappropriate sexual contact with a child, the sole complainant, who was less than 14 years of age. The first three counts of the current Indictment reflect those allegations. The fourth count on the Indictment alleges sexual assault against the same complainant when he was between 14 and 17 years of age.

[68] All four counts on the Indictment are founded on evidence led at the two Preliminary Hearings. Counsel for the Applicant had full opportunity to cross-examine the complainant at the Ontario Court level.

[69] The specific charges changed as the case progressed. However, the allegations of sexual misconduct with a young person have been apparent from 2009.

[70] For purposes of s. 11(a) and s. 7, prejudice refers to fair trial interests. The Applicant refers to the length of time to trial impacting these interests. However, tactical decisions by the defence significantly protracted the time to trial.

[71] The onus is on the Applicant to establish a violation of s. 11(a) or s. 7. He has failed to do so especially on the critical issue of prejudice to his fair trial interests.

result

[72] Applications pursuant to ss. 11(a), 7 and 24(1) of the Charter are dismissed.

B. P. O’Marra J.

Released: November 7, 2013

COURT FILE NO.: CR13300005990000

DATE: 20131107

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

D.C.

Defendant

rulings

B. P. O’Marra J.

Released: November 7, 2013