ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 1705/12
DATE: 2015 08 19
BETWEEN:
HER MAJESTY THE QUEEN
A. Bernstein, for the Crown
- and -
BRANDON HINDS
S. Williams, for Brandon Hinds
HEARD: August 17, 2015
RULING
APPLICATION FOR ADJOURNMENT
FAIRBURN J
Overview
[1] Brandon Hinds faces a single count indictment for a sexual assault alleged to have occurred on January 3, 2010. His trial was scheduled to commence on August 17, 2015. He brought an application to adjourn the trial in order to pursue a third party record application. The adjournment application is dated August 14, 2015. For the following reasons I dismissed the application with written reasons to follow. These are the reasons.
[2] This case has a long history.
[3] Three males were arrested for a sexual assault said to have occurred in January of 2010. Both Mr. Hinds and an alleged co-accomplice, Donovan Jones, had a joint preliminary inquiry which occurred in 2011. They were ordered to stand trial.
[4] Mr. Hinds made his first appearance in this court three and a half years ago on February 17, 2012. The matter was first scheduled for trial in April of 2013. On March 12, 2013, in anticipation of the trial, the Crown brought an application seeking the admission of the complainant’s evidence from the preliminary inquiry. It was said that the complainant was too fragile to testify and to require her testimony would cause her serious harm. The Crown sought to rely upon her preliminary inquiry testimony in lieu of viva voce evidence.
[5] The application was heard by a case management judge, pursuant to the powers set out in s. 551.3(1)(g)(ii) of the Criminal Code. The Crown relied upon both s. 715(1)(c) of the Criminal Code and the principled exception to the hearsay rule. Dr. Gail Robinson gave evidence on the application. She was cross-examined by counsel to both accused.
[6] Dr. Robinson was declared an expert in post-traumatic stress disorders [“PTSD”] and women’s mental health. She offered the opinion that the complainant, who she met on January 31, 2013, suffers from PTSD. Among other things, she testified about a suicide attempt and suicidal ruminations that had resulted in the complainant’s hospitalization. Dr. Robinson expressed the opinion that the complainant would suffer significant adverse consequences if she were required to testify again and, indeed, would be at a heightened risk of suicide.
[7] On March 13, 2013, Justice Edwards granted the application and the preliminary inquiry transcripts were ruled admissible: R. v. Hinds and Jones, 2013 ONSC 1557. Pursuant to s. 715(1)(c), Edwards J. concluded that the complainant is so ill that she is unable to testify: “To require her to testify would take an individual, who is already mentally fragile, and significantly impair her mental health [at para. 28]”. Although not strictly necessary, Edwards J. also concluded that the preliminary inquiry transcripts were admissible under the principled exception to the hearsay rule.
[8] The accused argued that the complainant had testified on eight prior occasions about the matter before the court. They suggested that it would be unfair to preclude them from putting the complainant’s prior inconsistent statements into evidence. Justice Edwards adverted to this argument and ruled that counsel should determine what portions of the prior proceedings they wished to place into evidence and raise the issue with the trial judge.
[9] A short while after the ruling, it was discovered the Jones’ counsel had a conflict. He was replaced by amicus curiae. The first trial date was lost. Before the second trial date, the Attorney General stayed the proceedings against Jones. This was done under s. 579 of the Criminal Code. Mr. Hinds now stood alone on the indictment.
[10] On September 27, 2013 – almost two years ago – Mr. Hinds was remanded to December 20, 2013 for trial readiness. His trial was scheduled for January of 2014. At the beginning of January 2014 – one year and eight months ago – the defence requested an adjournment resulting from medical issues on the part of counsel. The second trial date had now been lost. A third trial date was set for September of 2014. On September 22, 2014, a defence application was brought seeking an adjournment of the third trial date to determine the “current status” of the complainant’s ability to testify at trial.
[11] Justice O’Connor exercised his discretion in favour of granting the adjournment and endorsed the indictment as follows: “Crown to obtain up-dated medical report on witness”. On September 23, 2014, the matter was adjourned to a fourth trial date of August 17, 2015, with a readiness date of August 7, 2015.
[12] The Crown did as directed and quickly sought an updated report from Dr. Robinson. The eight page report is dated October 20, 2014, less than a month following Justice O’Connor’s September 22nd direction. Counsel acknowledges having received the detailed report within about a week of October 20, 2014. This was about ten months ago. The report states that Dr. Robinson has only seen the complainant on two prior occasions: January 31, 2013 and October 11, 2014. The January 31, 2013 meeting formed the foundation for Dr. Robinson’s evidence before Justice Edwards. She was fully cross-examined by counsel to Mr. Hinds at the March 12, 2013 application.
[13] Dr. Robinson’s October 20, 2014 report commences with the following statement about her earlier conclusions regarding the complainant:
[The complainant] continues to suffer from symptoms of PTSD. These symptoms of PTSD, depression and an eating disorder all become exacerbated as she contemplates the next court date. She has made several suicide attempts with the last one being quite serious. I would strongly advise against her having to testify again. I think her mental and physical health are both very fragile and that there is a high likelihood of her making another serious suicide attempt if she has to go forward and testify once more.
[14] In assessing her “current state of mind”, as of October 20, 2014, Dr. Robinson concludes that the complainant continues to have “marked psychological problems”. She is anxious and has panic attacks. She feels depressed and “periodically has suicidal ruminations”. The symptoms become “exacerbated” when legal action is pending. She has thoughts of jumping off of the balcony. Her current partner checks on her when he comes home, fearful that he will find her dead.
[15] Dr. Robinson notes that the delay in the trial is causing significant hardship to the complainant and the status of her mental health. She remains of the view that there could be serious adverse consequences to the complainant if she were required to testify:
I find that she is suffering from a Major Depressive Episode, General Anxiety Disorder, PTSD, and Alcohol Abuse in complete remission. I still feel that it would be a very bad idea for her to have to testify. Even the thought that the trials are going on is extremely upsetting to her. She has a history of marked suicidal ideation. I think that her mental health and, indeed, her life would be at risk if she had to testify in the trials.
[16] In short, Dr. Robinson’s view of the complainant’s inability to testify did not change between her evidence in March of 2013 and her report of October of 2014. The accused did not make any follow-up requests after receiving the October 20, 2014 report.
[17] The matter appears to have been brought forward on July 2, 2015. Justice Durno endorsed the indictment that if the accused wished to have a judge consider whether it is in the interests of justice to hear another “KGB application” regarding the complainant, then the application had to be filed by July 22, 2015.
[18] In an application filed with the court and dated July 31, 2015, which I have reviewed, the accused brings a third party record application for the first time, seeking the clinical records of Dr. G. Robinson. The defence had a subpoena duces tecum issue for the records, returnable August 12, 2015. This application is said to be in support of reopening Justice Edwards March 13, 2013 ruling. The accused takes the position that his ruling can only be effectively challenged by getting into the records held by Dr. Robinson. To be clear, he does not seek another opinion from the expert. Rather, he seeks to challenge her prior opinions by analyzing the records she has on file.
[19] In the Notice of Application for the third party records, the defence state the relevance as helping to determine: (1) the “complainant’s condition” as stated by Dr. Robinson in March of 2013 and whether it continues; (2) the complainant’s ability to testify given the passage of time; and (3) the “Applicant’s ability to confirm or confront the credibility of Crown witnesses on cross-examination”.
[20] When asked why the application for third party records was brought so late in the day, I was informed that it was because the defence were originally contemplating requesting an order requiring the complainant to be assessed by a psychiatrist. I understand that the defence ultimately decided, correctly in my view, that there is no jurisdiction to have the court order any such assessment. Having abandoned that idea, I am informed by counsel that the third party record application was pursued. Counsel acknowledges that she should have been more prompt in her pursuit of the records.
[21] The Crown takes the position that nothing new has happened in this case. As Crown counsel puts it, the defence have known the landscape for the case since October of 2014 and before. The Crown argues that the accused is asking this court for an adjournment to pursue a “fishing expedition” and that I should deny the application.
[22] On Friday August 14, 2015, the accused brought an adjournment application in order to pursue the third party record application. The application was heard and dismissed by Durno J. on that day. The trial was to commence on August 17, 2015, the same day that the adjournment application was renewed.
[23] The defence again applied for an adjournment to obtain Dr. Robinson’s file. In addition to what is set out in the Notice of Application for the third party records, the defence added that the records may disclose the identities of the two mental health professionals referred to by Dr. Robinson in her October 20, 2014 report. Specifically, at page four of the report, Dr. Robinson makes reference to the fact that the complainant was seeing a psychologist weekly and a psychiatrist every 6-8 weeks for medication management. Counsel says that if she can get into Dr. Robinson’s records, and if the records contain the identities of the unnamed mental health professionals, and if the professionals can be tracked down, then she can also attempt to subpoena the records of these professionals and bring another third party record application for the records.
[24] I am informed by the Crown, and the defence accept, that Dr. Robinson has not seen the complainant since October of 2014. This means that Dr. Robinson has only seen her on two prior occasions: (1) January 31, 2013 in preparing for Dr. Robinson’s voir dire evidence; and (2) October 11, 2014 in preparing the report. I am further informed by the Crown, and the defence accept, that the Crown does not know the identity of the mental health professionals referred to in Dr. Robinson’s report. Finally, I am informed by the Crown that no follow-up inquiries were made by the defence after release of the October 20, 2014 report.
Analysis
[25] Where a party to a criminal proceeding seeks an adjournment, two important considerations must be balanced: (1) the fair trial interests of the accused, including his right to make full answer and defence; and (2) the court’s obligation to control the trial process: R. v. Hazout (2005), 2005 30050 (ON CA), 199 C.C.C. (3d) 474 (Ont. C.A.) at para. 31, leave to appeal refused [2005] S.C.C.A. No. 501; R. v. Nichols (2011), 2001 5680 (ON CA), 148 O.A.C. 344 at para. 23, leave to appeal refused [2001] S.C.C.A. No. 508; R. v. McCallen, 1999 3685 (ON CA), [1999] O.J. No. 202 (C.A.) at paras. 45-47 [McCallen]. A number of concepts are subsumed in protecting the trial process, including both the accused’s and public’s interest in having criminal cases disposed of on their merits in an expeditious and efficient manner: McCallen, at para. 46.
[26] The interest in timely trials is addressed in the majority and minority decisions in R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771 [Morin]. Justice Sopinka for the majority made the important observation that when trials are held promptly, they enjoy the “confidence of the public”: Morin at para. 29. In her concurring minority judgment, McLachlin J. (as she then was) remarked on the benefits to all when justice is dispensed in a timely way. Delayed justice can result in denied justice. As noted by Justice McLachlin, witnesses are vulnerable to fading memories and disappearance. Accused individuals are vulnerable to having their security and liberty interests impacted much longer than necessary. Delays in trials can lead to consequences for the accused and for the “public interest in the prompt and fair administration of justice”: Morin at para. 86.
[27] While these comments are made in the context of considering a stay of proceedings for a finding of unreasonable delay within the meaning of s. 11(b) of the Charter, the spirit of these comments is equally applicable to applications for adjournments. Efficient and fair justice is inextricably linked to timely justice. This constitutes one of the factors that must be considered when an adjournment request is made.
[28] Other factors to balance in the just determination of an adjournment request include the reasonableness and timeliness of the request, as well as the grounds for the request. The court should consider the prejudice that might arise to either party as a result of an adjournment or refusal to adjourn. The right to a fair trial and the integrity of the administration of justice should also factor into the ultimate determination: M. Fuerst, M.A. Sanderson, Ontario Courtroom Procedure, 3rd ed., (Toronto: LexisNexis, 2012) at p. 333. As noted by Dalphond J.A. for the majority in R. v. G.(J.C.) (2004), 2004 66281 (QC CA), 189 C.C.C. (3d) 1 (Que. C.A.) at para. 12, leave to appeal refused [2004] C.S.C.R. No. 456: “it is proper for the trial judge when asked for a postponement to consider other relevant circumstances such as the gravity of the charges, the number of previous postponements and the consequences of a postponement for the accused”.
[29] A decision about whether to grant an adjournment must be made on the facts specific to each individual case. Justice Durno has already dismissed the adjournment request and I agree entirely with his decision to do so. There is nothing in the argument placed before me, including the additional suggestion about determining the identity of the unknown mental health professionals, that causes me to reconsider the position.
[30] This trial has been outstanding for far too long. The allegation dates back to January 3, 2010. The indictment was lodged in this court in February of 2012. It has been up for trial four times. While Mr. Hinds is not responsible for each of the trial dates having been lost, he and his counsel have played a role in the extraordinary length of time the matter has been outstanding. This is particularly true of the last adjournment in September of 2014, following which Crown counsel quickly obtained an updated report from Dr. Robinson. Despite having received that report about ten months ago, nothing was done until now. If the accused had really wanted to pursue a third party records application, he had ten months to do it. He did not. This could hardly be called a timely request.
[31] Moreover, it is difficult to imagine the relevance of the material sought. I agree with the Crown’s characterization of the third party records application as a fishing expedition. Using the accused’s characterization of relevance, as set out in his Notice of Application, it is difficult to understand how Dr. Robinson’s records will give any insight into whether the complainant’s “condition” continues today. Dr. Robinson last saw the complainant on October 11, 2014 and the defence have the report that resulted directly from that meeting. It is also important to remember that the defence had a full opportunity to, and did, cross-examine Dr. Robinson back in March of 2013.
[32] As for determining the identity of the unnamed mental health professionals, this submission is based on pure speculation. Even if the names are in the file, there is nothing to suggest that there is anything in the files of those professionals that would meet the threshold for production. While I am not determining a third party record application on this motion for an adjournment, one of the circumstances I must take into account is the likelihood of its success, a matter inextricably linked to any prejudice that may result to the accused from a dismissal of the application to adjourn. It is difficult to imagine how the threshold test of likely relevance, only the first step in a third party record application, can be met. See: s. 278.5(1)(b); R. v. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668.
Conclusion
[33] The trial has been adjourned on three prior occasions. The matter has been in the Superior Court of Justice for three and a half years. However lacking in substance, there was plenty of time for the accused to pursue a third party record application or, as it is now articulated, applications. This is a serious matter and should go to trial. The integrity of the administration of justice points toward moving forward to trial without any further delay. The consequences to the accused are minimal to none. The adjournment request is
denied again. The trial should proceed.
FAIRBURN J
Released: August 19, 2015
COURT FILE NO.: 1705/12
DATE: 2015 08 19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
BRANDON HINDS
RULING
APPLICATION FOR ADJOURNMENT
FAIRBURN J
Released: August 19, 2015