ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-01188

DATE: 20140307

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TYLER WHITE

Defendant

Mr. R. De Chellis, for the Crown

Mr. A. Herscovitch for the Defendant

HEARD: February 28, 2014

RULING ON ADJOURNMENT REQUEST

bOSWELL J.

Background

[1] On May 22, 2012, Mr. White entered a guilty plea to the following offences: (1) luring a child; (2) sexual interference; and, (3) making child pornography.

[2] The court accepted Mr. White’s plea following an inquiry regarding voluntariness as mandated by s. 606 of the Criminal Code.

[3] The Crown indicated that it wished to proceed with a dangerous offender application. Mr. White had been aware of the Crown’s intention before he entered his plea. An assessment report was immediately ordered, on consent, pursuant to s. 752.1(1) of the Code. The report took a considerable time to complete and was not made available to the parties and to the court until December 7, 2012. Thereafter, it was necessary for the prosecutor to obtain the consent of the Attorney General to proceed with the dangerous offender application. On February 6, 2013, the court was advised that the consent of the Attorney General had been granted.

[4] On March 21, 2013, counsel advised the court that six weeks would be required to complete the dangerous offender hearing. Prior to that time, the estimated time requirement identified by counsel had been three days. A judicial pre-trial was accordingly arranged in an attempt to narrow the issues and to find a block of time when the hearing could proceed. The pre-trial took place on May 23, 2013. Ultimately it was agreed that the hearing should be scheduled for five weeks and was set to begin before me on May 12, 2014.

The Change in Circumstances

[5] As a result of changes in the judicial complement in Newmarket, I was assigned to hear a six month homicide trial involving five accused persons commencing with pre-trial motions in January 2014 in Newmarket. The commitment to the homicide trial meant that I was no longer available to preside over the dangerous offender application in this matter scheduled for May 2014. Counsel arranged to speak to the matter before me on February 28, 2014 in an effort to obtain the court’s direction as to how and when this hearing would proceed.

[6] The Crown submitted that I am seized of the sentencing, including the dangerous offender application, on the basis that I took Mr. White’s plea and ordered the assessment report.

[7] Defence counsel agreed that I am prima facie seized of the sentencing, but noted that there was mechanism in the Code for the replacement of a judge who can no longer continue with a matter.

Discussion

[8] I accept counsel’s joint submission that I am seized of the sentencing of Mr. White, including the disposition of the dangerous offender application: see R. v. Cataract, 1994 SKCA 4616, [1994] S.J. No. 524 (Sask. C.A.).

[9] That said, s. 669.2(1) of the Code provides that where an accused is being tried by a judge and the judge dies, or is for any other reason unable to continue, the proceedings may be continued before another judge.

[10] The Crown urged a narrow reading of s. 669.2(1) and submitted that I am, in fact, able to continue with Mr. White’s sentencing hearing, but just not on the dates presently scheduled.

[11] Defence counsel urged me to interpret s. 669.2(1) more broadly, particularly in view of the fact that I will not be able to reschedule this sentencing until sometime in 2015, given that I am committed to hearing another homicide trial after the one I am currently hearing concludes.

[12] I accept the submissions of defence counsel. Section 669.2(1) does not restrict or limit the circumstances in which another judge may continue a proceeding already commenced. The section uses open-ended language: if the judge “is for any other reason unable to continue…”

[13] In my view, the section must be interpreted in a manner that is, in each case, in the interests of justice. Here, the interests of justice favour another judge continuing with the sentencing and dangerous offender application for the following reasons:

(a) I am unable to hear the matter commencing in May 2014, which is a date that has been scheduled for almost a year;

(b) Mr. White had to wait a particularly long time for the assessment to be completed and that has delayed his sentencing hearing. He has already been awaiting sentencing for almost two years;

(c) I will, in fact, be unable to hear this matter until early 2015 if I am to continue with it. In other words, it will have to be adjourned almost a year. Quite apart from the obvious unfairness to Mr. White in having to wait another year for his sentencing to be completed, such an adjournment may have a serious impact on his s. 11(b) Charter right; and,

(d) Mr. White is not the only interested party who has been waiting for this matter to be completed. The young complainant and her family also share an interest in seeing this matter concluded in the time presently allotted.

[14] In the result, the matter will remain scheduled to proceed on May 12, 2014 before a justice to be assigned by the Regional Senior Justice.

Boswell J.

Released: March 7, 2014