R. v. Russell, 2015 ONSC 2090

ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: R v. Russell, 2015 ONSC 2090

COURT FILE NO.: Cr-13-800-00

DATE: 20150331

B E T W E E N:

Her Majesty the Queen

Scott Latimer, for the Respondent

Respondent

• and -

Michael Russell

Susan Chapman, Jennifer Micallef for the Applicant

Applicant

HEARD: March 27, 2015

REASONS FOR JUDGMENT

Justice Skarica

NATURE OF PROCEEDING

1The defence applies to quash the amended preferred indictment, made pursuant to section 574(1)(b) of the Criminal Code of Canada, on the ground that the amendments are not based on evidence that was given at the preliminary inquiry. The defence further asks for a stay of proceedings, pursuant to section 24 (1) of the Charter, due to an alleged abuse of process.

OVERVIEW

2This is an historical sexual assault allegation. The original charges relate to events that occurred before the complainant’s 18th birthday, which occurred on Feb. 15, 1994. At the preliminary hearing, the complainant wavered on the dates. The Crown added a count to extend the sexual assaults to beyond the complainant’s 18th birthday. The Crown says there was evidence to support the amendment. The defence says there was not. Further, the defence was told at the preliminary hearing that the Crown was not alleging any offences beyond the complainant’s 18th birthday, and the defence relied upon that assertion and deliberately asked no questions about any sexual activity when the complainant was an adult.

BACKGROUND FACTS

3The original information, dated on or about October 2012 charged the accused with six counts of sexual assault and nine counts of sexual exploitation relating to a single individual. All counts related to an 18-month period before the complainant’s 18th birthday on February 15, 1994.

4The preliminary hearing was held on December 3, 2013, and the accused was committed to trial.

5The Crown filed an indictment on or about January 6, 2014, before the Superior Court of Justice in Brampton. I note that this indictment contains 15 counts, all alleging the same date of offence, i.e. during an 18-month period ending on or about February 15th, 1994. The indictment appears to be in in substantial conformity with the original information, as amended, that the accused was committed on.

6On September 5th, 2014, the Crown laid a new indictment. The first 3 counts are sexual offences that are alleged to have occurred during that same 18-month period ending on or about February 15th, 1994. These first 3 counts are duplicates of the charges laid in the original indictment filed on or about January 6, 2014, and relate to charges of sexual assault and sexual exploitation, contrary to sections 271, 153(a) and 153(b), respectively, of the Criminal Code of Canada.

7However count 4 on the new indictment adds an additional sexual assault allegation that is said to have occurred in the 19-month period ending September 15, 1995. For seven months of count 4, the complainant was an adult. This new count obviously extends the date of the alleged sexual assault beyond the original period before the complainant’s 18th birthday.

8Section 574(1)(b) of the Criminal Code allows the Crown to add charges when preferring an indictment after a preliminary hearing, “on any facts disclosed by the evidence taken on the preliminary inquiry.”

THE EVIDENCE AT THE PRELIMINARY INQUIRY

9The complainant was in Grade 12. He was under 18. He was going out with a girl named Julia and was sexually active with her. The accused was his volleyball coach. The complainant testified to the following chronology of events in examination in chief:

1. In Grade 12, the accused, during a volleyball practice, grabbed the accused’s penis over his shorts while the complainant was in a line during a spiking exercise and the accused was behind him.

2. The complainant injured his ankle and the accused was taping the complainant’s ankle in the phys-ed office. After the ankle was taped, the accused grabbed the complainant’s penis over his shorts for three to four seconds.

3. The accused would have pool parties at his place and at another teacher’s pool. The other teacher was named Ned. At a pool party, the accused swam up behind the complainant and reached in under the complainant’s bathing suit and touched the complainant’s rear end and genitalia and held on for about six seconds.

4. The accused invited the complainant over for sexual activity at the accused’s home. One of the incidents involved the accused inserting a dildo into the complainant’s rectum and then having oral sex while on a blanket in the basement of the accused’s home. This incident was referred to as the blanket incident.

10The complainant in chief indicated these events occurred when he was 16, 17. The last event he described, the “blanket incident”, occurred in December or January, during the holidays of his Grade 12 year, just before he turned 18. This event occurred just before or just after New Year’s in his Grade 12 year. He was no longer going out with Julie and had briefly dated Carrie-Ann and was now meeting Tracy. The pool incident occurred between Grade 11 and Grade 12.

11The complainant struggled with the dates as it was twenty years ago, but eventually agreed with the Crown, at page 58 of the preliminary hearing, that all the incidents occurred over a four and a half month span between September to roughly January when he was in Grade 12. In cross-examination, the complainant was unsure whether the pool incident was at the accused or Ned’s house. The complainant testified at page 101 of the preliminary hearing, “it’s unclear to me whether it was the summer of Grade 12 to OAC or Grade 11 to 12. I don’t recall. I think I was dating Tracy and that is why I think it was grade 12 to OAC.” He repeats the gist of this evidence again at page 102, indicating, “I was dating Tracy… and so I believe that it’s the end of Grade 12 to OAC…The incident is unclear…I know that it happened.” At page 121, the complainant indicates that who he was dating is his guide post and he indicates that he was dating Tracy at the time of the pool incident, so it would be after the oral sex incident. This chronology is contrary to his evidence in chief.

12In re-examination, the complainant again indicated that he can’t remember the months, but he can remember who he was dating and that is his reference point.

THE TEST FOR COMMITTAL

13The test for committal is whether there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty: see R. v. Sheppard (1976), 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067, 30 C.C.C. (2d) 424 (S.C.C.) at paras. 1, 21 and R. v. Arcuri, 2001 SCC 54 at paras. 22, 23. It has been long settled law that a judge at a preliminary inquiry is “required…to assess the inferences from the evidence adduced by the Crown in a manner most favourable to the Crown” (see R. v. Coelho, [1998] O.J. No. 5325, 40 W.C.B. (2d) 402 (Ont. Ct. (Gen. Div.) at para. 33).

14In my opinion, the evidence adduced during the cross-examination of the complainant is evidence from which a reasonable jury could conclude that the pool incident happened in the summer between Grade 12 and OAC. The complainant at that time would have been 18 years old. Accordingly, there was evidence adduced at the preliminary hearing which would entitle the Crown to add count 4 to the new indictment, pursuant to section 574(1)(b) of the Criminal Code.

15The defence contends that the word “consent” was never used at the preliminary hearing. However, at page 62 of the cross-examination, in reference to the accused grabbing both his suit and another boy’s at the pool, the complainant indicates that if he were a teacher, he would never grab a boy’s bathing suit in general, “so yeah that’s an assault.” At page 84, the complainant agrees with the suggestion that these inappropriate things happened during the second year of coaching. At page 102, the complainant, regarding the pool incident, indicates he was concerned about his friend being grabbed in the pool and he is unclear about the chronology “because I felt very, very violated…” In the context of the other student being grabbed in the pool, the complainant testified at pages 103-104, “I think that at any point in time where someone that is clearly your mentor grabs you by the bathing suit, that’s an assault.”

16In light of the evidence detailed above, I am of the opinion that there was some evidence, upon which a reasonable jury could find that the complainant was sexually assaulted in the pool when he was an 18 year old adult. Accordingly, a reasonable jury could convict upon count 4 on the indictment on the evidence adduced at the preliminary inquiry.

TIME AS ESSENTIAL ELEMENT OF THE OFFENCE

17I agree with the defence that, with respect to counts 2 and 3 of the indictment, involving sexual exploitation under section 153 of the Criminal Code, time is an essential element of the offence in that the complainant at the time of the offence must be under 18 years of age.

18However, with sexual assault regarding the complainant as an adult, time is not an essential element of the offence. The essential elements are an assault – the accused intentionally touching the complainant knowing that the complainant did not consent to the touching – and that the assault be of a sexual nature. Paragraphs 38, 43, and 44 of R. v. B. (G). 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, [1990] S.C.J. No. 58 (S.C.C.) are applicable to the fact scenario here:

38 From the foregoing, it is clear that it is of no consequence if the date specified in the information differs from that arising from the evidence unless the time of the offence is critical and the accused may be misled by the variance and therefore prejudiced in his or her defence. It is also clear from Dossi and other authorities that the date of the offence need not be proven in order for a conviction to result, unless time is an essential element of the offence. Accordingly, while it is trite to say that the Crown must prove every element of the offence in order to obtain a conviction, it is, I believe, more accurate to say that the Crown must prove all the essential elements. The Crown need not prove elements which are, at most, incidental to the offence. What the Crown must prove will, however, of necessity vary with the nature of the offence charged and the surrounding circumstances. Time may be an essential element of the offence in some circumstances, and it may be instructive, therefore, to look at a few cases where this was held to be so in order to respond to the appellant's third submission.

43 In my view, the following conclusions can be drawn from the authorities:

1. While time must be specified in an information in order to provide an accused with reasonable information about the charges brought against him and ensure the possibility of a full defence and a fair trial, exact time need not be specified. The individual circumstances of the particular case may, however, be such that greater precision as to time is required, for instance, if there is a paucity of other factual information available with which to identify the transaction.

2. If the time specified in the information is inconsistent with the evidence and time is not an essential element of the offence or crucial to the defence, the variance is not material and the information need not be quashed.

3. If there is conflicting evidence regarding the time of the offence, or the date of the offence cannot be established with precision, the information need not be quashed and a conviction may result, provided that time is not an essential element of the offence or crucial to the defence.

4. If the time of the offence cannot be determined and time is an essential element of the offence or crucial to the defence, a conviction cannot be sustained.

44 Accordingly, when a court is faced with circumstances in which the time of the offence cannot be determined with precision or the information conflicts with the evidence, the first question that must be asked is whether time is either an essential element of the offence or crucial to the defence. It will only be in cases where this first question is answered affirmatively that the trier of fact must then determine whether the time of the offence has been proven beyond a reasonable doubt. If the answer to the first question is in the negative, a conviction may result even although the time of the offence is not proven, provided that the rest of the Crown's case is proven beyond a reasonable doubt.

IMPACT OF PREJUDICE

19The only real major concern here is regarding prejudice. At page 134-135 of the preliminary inquiry, the Crown makes a submission that the defence is restricted to asking the complainant only questions regarding when he was under 18, and the defence, in response, indicates to the complainant that she just wanted to hear about sexual activities when he was under 18. Clearly, the defence would otherwise have been able to ask more about the summer of events when the complainant was 18.

20However, the defence was able to explore fully the pool incident, as the complainant was unsure initially exactly when it did occur. It is unclear to what extent the defence was in fact prejudiced. The defence argues they would have cross-examined on consent and they did not do so due to the underage issue. There is merit to this submission, even though the complainant did indicate he felt very, very violated.

21The important question, however, is whether this is an abuse of process? There is no evidence of any improper motives by the Crown in filing the new indictment. Time did not become an issue until the complainant in cross-examination started to waiver on the relevant time periods regarding the pool episode.

22A useful summary of the law regarding abuse of process appears in the recent case of R. v. Babos 2014 1 SCC 16 at paras 30-35:

A. Abuse of Process and Stays of Proceedings

30 A stay of proceedings is the most drastic remedy a criminal court can order (R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 53). It permanently halts the prosecution of an accused. In doing so, the truth-seeking function of the trial is frustrated and the public is deprived of the opportunity to see justice done on the merits. In many cases, alleged victims of crime are deprived of their day in court.

31 Nonetheless, this Court has recognized that there are rare occasions - the "clearest of cases" - when a stay of proceedings for an abuse of process will be warranted (R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 68). These cases generally fall into two categories: (1) where state conduct compromises the fairness of an accused's trial (the "main" category); and (2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the "residual" category) (O'Connor, at para. 73). The impugned conduct in this case does not implicate the main category. Rather, it falls squarely within the latter category.

32 The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:

(1) There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that "will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome" (Regan, at para. 54);

(2) There must be no alternative remedy capable of redressing the prejudice; and

(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interest that society has in having a final decision on the merits" (ibid., at para. 57).

33 The test is the same for both categories because concerns regarding trial fairness and the integrity of the justice system are often linked and regularly arise in the same case. Having one test for both categories creates a coherent framework that avoids "schizophrenia" in the law (O'Connor, at para. 71). But while the framework is the same for both categories, the test may - and often will - play out differently depending on whether the "main" or "residual" category is invoked.

34 Commencing with the first stage of the test, when the main category is invoked, the question is whether the accused's right to a fair trial has been prejudiced and whether that prejudice will be carried forward through the conduct of the trial; in other words, the concern is whether there is ongoing unfairness to the accused.

35 By contrast, when the residual category is invoked, the question is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution of offences. At times, state conduct will be so troublesome that having a trial - even a fair one - will leave the impression that the justice system condones conduct that offends society's sense of fair play and decency. This harms the integrity of the justice system. In these kinds of cases, the first stage of the test is met.

23Accordingly, a stay of proceedings can only be ordered in the clearest of cases and only where there is no alternative remedy capable of redressing the prejudice.

24In my opinion, this is not one of the clearest of cases where a stay of proceedings will be warranted. The Crown has indicated that they are prepared to offer the defence the opportunity of a further discovery to allow the defence to re cross-examine the complainant on the count 4 offence in the new indictment. Further, if the defence wishes to bring a fresh third party records application for the count 4 time period, I would hold that that would be an appropriate application in these circumstances.

ORDER

25The defence application for the quashing of the new amended indictment is dismissed. Further the defence application for a stay of proceedings is also dismissed.

26I understand that the trial is to take place in July of this year. It is ordered that the Crown provide the defence the opportunity to cross-examine the complainant regarding the count 4 sexual assault within the next 30 days or at some other time agreeable to both parties. Further, it is ordered that the defence may bring a further third party records application if it wishes and that the court expedite a hearing date for that application.