Court File and Parties
Barrie Court File No.: CR-15-183 Date: 2016-04-22 Ontario Superior Court of Justice
Between: Her Majesty the Queen, Respondent – and – Orville Dungey, Applicant
Counsel: Kathryn Hull, for the Crown Jessica Sickinger, for the Applicant
Heard: April 18, 2016
Reasons for Decision
DiTOMASO J.
The Application
[1] The applicant, Mr. Dungey, applies for an order to stay his charge of sexual assault because of a heart condition. He submits that his continued prosecution amounts to an abuse of process and violates his rights under ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms (the “Charter”). Mr. Dungey further submits that the appropriate remedy is a stay of proceedings pursuant to s. 24(1) of the Charter.
[2] In support of the application, Mr. Dungey relies upon the affidavit of Mindy Wagner and the viva voce evidence of Dr. Peter Moran.
Overview
[3] Mr. Dungey is an eighty year old man charged with sexually assaulting his niece on about five or six occasions between 1992 and 1996. At the time, his niece was between fifteen and nineteen years old.
[4] The police arrested Mr. Dungey for these alleged sexual assaults on June 10, 2015. The arrest took place while Mr. Dungey was incarcerated for offences unrelated to his niece. Mr. Dungey pleaded guilty to these prior charges on November 18, 2015.
[5] Dr. I.A. Gray has been Mr. Dungey’s physician since 1973. On August 1, 2014, Dr. Gray submitted a letter to the court advising that Mr. Dungey had suffered from chronic obstructive lung disease and a worsening congestive heart failure due to coronary disease. Dr. Gray’s letter also stated that Mr. Dungey may soon need oxygen, that he had significant cognitive dysfunction, and that his memory and executive functions were impaired. Dr. Gray opined that Mr. Dungey would not be able to tolerate incarceration.
[6] On November 10, 2014, Dr. Gray submitted a new letter. This letter added that Mr. Dungey’s coronary artery disease began as angina about twenty-five years prior and that symptoms of heart failure began about fifteen years prior. The letter goes on to explain that his heart rhythm disturbances lead to losses of consciousness, and that it was creating a risk of a stroke and required a pacemaker. The letter also went on to state that Mr. Dungey was experiencing shortness of breath, difficulty walking long distances, and poor memory. Dr. Gray’s letter of August 1, 2014 and November 10, 2014 can be found in Mr. Dungey’s application record.
[7] While Mr. Dungey was incarcerated at Central North Correctional Centre (“CNCC”) nursing staff prepared a Health Care Record. A note made on July 19, 2015, states that Mr. Dungey’s condition was stable while waiting for a medical referral to have a pacemaker implanted (see Appendix A of respondent’s factum). As of July 23, 2015, that pacemaker was in place. Staff noted that he was “alert and oriented” and was able to walk.
[8] The same medical record includes notes that in the months that followed, Mr. Dungey’s condition remained relatively stable. While he experienced some dizziness and required the use of a walking cane, he was still able to walk. On October 19, 2015, medical staff noted on the medical record that he reported to be “feeling good at this time”.
[9] Marked as Exhibit 1 on this application was a report dated January 26, 2016 from Dr. Peter Moran who has been seeing Dr. Dungey regularly since his transfer to CNCC in July 2015. In his report, Dr. Moran, who is a family physician, described Mr. Dungey to be in poor health and that Mr. Dungey suffered from a number of chronic medical diseases including:
- Ischemic heart disease (angina causing frequent chest pains requiring nitro-glycerine)
- Congestive cardiac failure which means he has fluid in his lungs which causes him to be short of breath, both at rest and with minor exertion
- Cardiac arrhythmias and heart block. He required a pacemaker shortly after admission to our jail
- Hypertension
- Chronic obstructive pulmonary disease which further aggravates his shortness of breath
- Glaucoma
- Enlarged prostate
- Significant hearing loss and would benefit from bilateral hearing aids
[10] In Dr. Moran’s opinion, he considered Mr. Dungey to be in a fragile medical state as at January 26, 2016. Clinically, Mr. Dungey was medically stable. However, he was only capable of minimal exertion on account of his heart and lung disease. This would explain why his colour appeared poor and he was short of breath when seen in court. Mr. Dungey’s progress was described as guarded.
[11] On March 8, 2016, the CNCC provided defence counsel with a letter to update her on Mr. Dungey’s medical status. The letter, marked as Exhibit 2 on this application, alluded to Mr. Dungey’s shortness of breath as well as his limited physical capabilities and mobility. The letter simply concluded by stating, “at his present rate of physical deterioration I would be very surprised if he will be medically fit to attend his upcoming trial.”
[12] Dr. Moran attended on this application heard April 18, 2016. He was qualified as an expert witness in the field of family medicine and he was further qualified to give expert opinion evidence regarding Mr. Dungey’s current physical condition and prognosis. He was cross-examined by the Crown and also re-examined by the defence. I will have more to say about his evidence later in my reasons.
Position of the Parties
Position of the Applicant
[13] Mr. Dungey submits that his continued prosecution amounts to an abuse of process and a violation of his rights under ss. 7 and 11(d) of the Charter. He further submits that the appropriate remedy is a Stay of Proceedings pursuant to s. 24(1) of the Charter. He submits that his s. 7 and 11 (d) rights as guaranteed by the Charter are infringed by the continued prosecution of this matter and that the continued prosecution amounts to an abuse of process. Mr. Dungey submits that he has a right to remedy pursuant to s. 24(1) of the Charter.
[14] Mr. Dungey relies on his right to life, liberty and security of the person pursuant to s. 7 of the Charter. He also relies on his right to the presumption of innocence and a fair trial pursuant to s. 11(d) of the Charter. Further, he submits the appropriate remedy pursuant to s. 24(1) of the Charter is a stay of proceedings.
[15] He submits that the trial process itself would seriously imperil his health. When the public interest is factored into the balance, Mr. Dungey submits that his case falls into the category of the most clearest of cases where a stay of proceedings should be imposed.
Position of the Crown
[16] The Crown submits that Mr. Dungey has failed to satisfy his onus on the balance of probabilities to demonstrate a breach of ss. 7 and 11(d) of the Charter. The Crown submits a stay of proceedings pursuant to s. 24(1) of the Charter would be inappropriate because Mr. Dungey cannot demonstrate that his condition would render him unable to defend himself at trial, nor that the trial process would cause significant harm to his health. Further, the Crown submits that a stay of proceedings is an extraordinary remedy and it should be granted in only the clearest of cases. In applications for stays on medical grounds, a court should only grant the remedy if compelling the accused to stand trial would be oppressive and would violate the principles of fundamental justice underlying the community’s sense of fair play and decency. The Crown submits that this is not one of those clearest of cases.
[17] It is submitted that Mr. Dungey has not presented evidence to demonstrate sufficiently that a trial would significantly endanger his health. Further, measures less drastic than a stay are available to address difficulties that may arise as a result of Mr. Dungey’s health conditions. Also, the Crown submits that the public interest calls for the adjudication of this case given the egregious nature of the charge. This is not the clearest of cases where a stay should be imposed. The Crown submits that the application be dismissed.
Analysis
The Evidence of Dr. Peter Moran
[18] Dr. Moran testified at this application. He has worked as a corrections physician specialising in family medicine at CNCC for the past twenty-six years. He has treated Mr. Dungey while at CNCC for approximately the last year. He sees Mr. Dungey three or four times a week in the medical unit at CNCC for approximately three to four minutes per visit.
[19] Dr. Moran reviewed the contents of his report dated January 26, 2016 and his opinion of that date. He described the various illnesses, mostly cardiac and pulmonary, that affect Mr. Dungey’s health. Mr. Dungey’s glaucoma, enlarged prostate and significant hearing loss pose no risk to his health at this point in time.
[20] As of January 26, 2016, Dr. Moran was of the opinion that Mr. Dungey was in a fragile medical state of health and he continues to hold that opinion. He has seen a deterioration in Mr. Dungey’s health resulting from his documented heart disease. Mr. Dungey has undergone three or four hospitalizations including a hospitalization for the purpose of implanting a pacemaker and a hospitalization in February 2016 at Southlake Regional Hospital where it was decided that his pacemaker would be left “as is”.
[21] Dr. Moran testified that within the last couple of weeks Mr. Dungey’s health has stabilized a little bit and he is doing reasonably well at the jail. Nevertheless, he is weaker, less mobile and appears unwell.
[22] As for Mr. Dungey’s prognosis, Dr. Moran testified that Mr. Dungey had serious underlying health problems. The prognosis was guarded and Dr. Moran did not know what was going to happen in respect of Mr. Dungey’s health. He could offer no opinion in respect of Mr. Dungey’s life expectancy.
[23] Clinically, he testified that Mr. Dungey was medically stable as stated in Dr. Moran’s report of January 26, 2016. There were no particular problems that were life threatening; that was not to say, however, that Mr. Dungey was still quite ill.
[24] Dr. Moran was asked for his opinion in respect of the trial of this matter scheduled for August 2016. He could not answer whether proceeding to trial in August 2016 posed a risk to Mr. Dungey’s health.
[25] He did testify that after his letter of March 8, 2016 (Exhibit 2) Mr. Dungey’s health had “rallied”, his colour was better, he looked better and his shortness of breath was better. He noticed a definite improvement since he wrote his letter in March 2016.
[26] Dr. Moran was asked to render his opinion today as to whether Mr. Dungey was physically able to attend his trial in August. He believed that Mr. Dungey was physically able to attend trial and he could not say categorically that Mr. Dungey was unfit for trial.
[27] He was asked point blank by Mr. Dungey’s counsel whether the trial would pose a significant risk to Mr. Dungey’s health. Dr. Moran did not know how to answer this question. He could not give an answer in percentage terms as to the possibility that the trial processes would cause a heart attack or sudden death.
[28] He agreed that there were available steps to ameliorate the potential of the risk to Mr. Dungey’s health such as wheelchair access, transportation by police in a police cruiser and optimizing treatment followed up by a cardiologist.
[29] Dr. Moran was cross-examined by the Crown. He testified that the pacemaker had improved Mr. Dungey’s health and that Mr. Dungey’s pulse rate is normal.
[30] Mr. Dungey takes a variety of medications administered three times a day by a nurse. A nurse could deliver a package of these medications to the Correctional officers to provide to the court officers in turn so that Mr. Dungey could receive his medications on a regular basis during trial.
[31] Given the occasions on which Dr. Moran saw Mr. Dungey, he could not comment on how Mr. Dungey managed with the activities of daily living or what assistance he requires or required. Nevertheless, whatever assistance Mr. Dungey required for court attendance was provided to him and would continue to be provided to him.
[32] Dr. Moran confirmed that Mr. Dungey speaks to him and understands what Dr. Moran tells him. Mr. Dungey appears attentive and answers questions. If there was something that he needed to say to Dr. Moran, Mr. Dungey would say it.
[33] Dr. Moran did not know if Mr. Dungey functioned better in the morning. He agreed that it would be a better preference to have a defibrillator in the court along with, a court officer with CPR training in attendance. If frequent breaks were required, this would also assist Mr. Dungey should he tire easily. Perhaps a court could sit for only a half day as this would also be of assistance to Mr. Dungey.
[34] Dr. Moran also testified that it would be preferable if Mr. Dungey testified while he remained seated in his wheelchair. Dr. Moran suggested that during the trial, CNCC could provide more care to Mr. Dungey.
[35] When asked whether or not all of these accommodations if made would allow Mr. Dungey to proceed through the trial, Dr. Moran testified that he did not know. Dr. Moran could not ascribe a percentage of risk to Mr. Dungey’s health attributable to trial.
[36] In re-examination, Dr. Moran testified that the trial would cause an increased risk to health particularly in regard to stress, anxiety and sleeplessness.
The Test for Granting a Stay of Proceeding for Medical Reasons
[37] In R. v. Hillier, [2000] OJ No. 3414 (Ont. C.A.) at paras 1-2, the Ontario Court of the Appeal set out the test for granting a stay of proceedings for medical reasons. The test can be summarized as follows:
The applicant bears the burden of demonstrating on a balance of probabilities that:
(i) he would probably not be able to defend himself; or (ii) that the trial process would cause significant harm to his health; and (iii) that his is one of the clearest cases where a stay of proceedings should be imposed.
[38] Counsel for Mr. Dungey cited the Alberta Court of Appeal decision in R. v. Magomadova, [2015] A.J. No. 62 (Alta. C.A.).
[39] In Hillier, the Ontario Court of Appeal held that a fair trial stay could be granted in the clearest of cases but declined to uphold the stay entered by the lower court as “the medical evidence did not show that the respondent would probably not be able to defend himself or that the trial process would probably cause significant harm to his self.”
[40] In Magomadova, the Alberta Court of Appeal reviewed jurisprudence from the Ontario Court of Appeal, other appellate jurisdictions and trial decisions.
[41] Upon completing their review in Magomadova, supra at para 24, the Alberta Court of Appeal rephrased the test for a medical stay as follows:
[24] After considering all of the above, I conclude that the test for determining when mental and/or physical conditions will breach the right to a fair trial under ss 7 and 11(d) of the Charter is not whether an accused has simply established, on a balance of probabilities, that her right to a fair trial would be prejudiced by the fact that her mental and physical health prevented her from making full answer and defence. Rather, the proper test is:
An accused has established, on a balance of probabilities, that her right to a fair trial will be prejudiced by being required to stand trial when
a. her mental or physical health prevents her from adequately defending herself as a result of not being able to (i) understand the nature or object of the proceedings and the possible consequences of the proceedings, or (ii) adequately communicate with her counsel, or (iii) testify when necessary, or b. the trial process itself would seriously imperil her health.
Has Mr. Dungey Demonstrated that the Trial Presents a Serious Risk of Harm?
[42] I would answer this question in the negative.
[43] Counsel for Mr. Dungey has conceded that under the Magomadova test, only (b) whether the trial process itself would seriously imperil Mr. Dungey’s health, is the issue. It was submitted that based on the medical evidence, Mr. Dungey’s health has declined and currently he is very unwell and in a very fragile condition. Although Dr. Moran could not quantify the risk to Mr. Dungey’s health should the matter proceed to trial, Mr. Dungey’s counsel submitted that she was bound by Dr. Moran’s evidence. She further submitted that this court ought to consider a stay would be an appropriate remedy and that this case would be one of those clearest of cases where such a remedy would be appropriate.
[44] With respect, I disagree for the following reasons:
(a) I find that Mr. Dungey has not satisfied his burden of demonstrating on the balance of probabilities that the trial process would cause significant harm to his health or would seriously imperil his health and that his is one of the clearest cases where a stay of proceeding should be imposed. Whether he would probably not be able to defend himself is not an issue.
(b) In R. v. Blakeman, 1988 CarswellOnt 848 (Ont. Sup. Ct.) at para 73, Watt J. held that in order to grant s. 24(1) relief for medical reasons, a court must establish:
(i) whether the accused is in fact suffering from the specified disability or condition; (ii) to what extent or degree the accused is suffering from such disability or condition; and (iii) whether there is a substantial risk that requiring the accused to stand the proposed trial would seriously endanger his health and/or prevent him from making full answer and defence for the charges.
[45] In determining whether a substantial risk of harm exists, it is important to quantify it in some manner. As per R. v. Blakeman, this evaluation should include non-medical evidence (the accused’s activities before and during the proceedings, for instance), but this exercise will no doubt depend on expert opinion also. See R. v. Blakeman, supra at para 76.
[46] On the facts in this case, Mr. Dungey’s underlying medical condition remains more or less the same as when Dr. Gray wrote his 2014 letters. However, Mr. Dungey’s condition has stabilized. Since these initial reports to the court, Mr. Dungey’s angina and irregular heart rhythms have improved with the implanted pacemaker. The CNCC report speaks to his ability to walk and to be alert.
[47] Beyond the letters of Dr. Gray the court has considered the reports of Dr. Moran marked Exhibits #1 and #2. Dr. Moran opines that Mr. Dungey’s health is medically stable as at January 26, 2016. However, his prognosis is guarded. In his report of March 8, 2016, Dr. Moran again reports of the declining health of Mr. Dungey. He continues to suffer from shortness of breath caused by heart failure and coronary artery disease. He is only capable of minimal physical activity and is confined to bed or wheelchair all of the time. As of March 8, 2016, Dr. Moran was of the opinion that at the present rate of physical deterioration, he would be very surprised if Mr. Dungey was medically fit to attend his upcoming trial.
[48] However, the viva voce evidence of Dr. Moran, quite to the contrary, established that Mr. Dungey has “rallied” in respect of his physical condition and that there has been some improvement so that he would be physically able to attend trial. Further, Dr. Moran was unable to quantify the risk associated with Mr. Dungey attending trial. Dr. Moran could not estimate Mr. Dungey’s life expectancy.
[49] While this court appreciates the forthrightness and candour in which Dr. Moran presented his viva voce evidence, I find that Dr. Moran simply could not give evidence to establish a substantial risk to Mr. Dungey’s health associated with the trial of this matter.
[50] I find that on all the evidence, Mr. Dungey has failed to show a substantial risk to his health or that the trial process itself would seriously imperil his health. I find Mr. Dungey has not met his burden on the balance of probabilities to establish that the trial process would seriously imperil his health. See: R. v. R. (J), [2006] O.J. No. 2531 (SCJ) at paras 1, 5, 10, 13-14, 17, 26. Dr. Moran’s testimony failed to assist Mr. Dungey in satisfying his onus.
Can Mr. Dungey’s Health Issues be Accommodated by Means Short of a Stay of Proceedings?
[51] I find that this question must be answered in the affirmative. Transportation to and from CNCC can be managed by way of police cruiser to provide maximum comfort and ease of transport to Mr. Dungey. His medications can be administered in a way so that he receives all of his medications daily as prescribed. Mr. Dungey can be accommodated by having a defibrillator in the courtroom with a court officer in attendance who has CPR training. If Mr. Dungey tires, he can be accommodated by way of frequent breaks. If necessary, the court may consider sitting for abbreviated hours. Mr. Dungey could remain seated in his wheelchair in the courtroom and could testify, if he testifies, from his wheelchair. During the course of the trial if required, certain additional accommodations could be provided by the staff of CNCC. All of these accommodations, short of a stay of proceedings, could be made available to Mr. Dungey.
Has the Clearest of Cases Standard Been Met by Mr. Dungey?
[52] I would also answer this question in the negative. For analysis of the third step in Hillier test, it is helpful to consider the three-step test for a stay of proceedings handed down in R. v. Babos, 2014 SCC 16, [2014] 1 SCR 309 (SCC) at para 32. In Babos, for a court to grant a stay of proceedings, the following steps should be met:
(1) there must be prejudice to the accused’s right to a fair trial or to the integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome, (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 must balance the interests in favour of granting a stay against the interest that society has in having a final decision on the merits.
[53] I find that only the third step requires consideration. Even where an accused has demonstrated on a balance of probabilities that a trial would present a real or substantial risk to his health, a court must counterbalance the public interest, assessing the seriousness of the offence, the strength of the Crown’s case, and the nature of the risk to the accused if the trial proceeds. (R. v. R. (J), supra at para 3, R. v. Blakeman, supra).
[54] A stay of proceedings brings the Crown’s opportunity to serve the public interest to a halt. In R. v. Babos, supra at para 30, Moldaver J. stated for the majority:
[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.
[55] Where the offence in question involves harm to children, the public interest in adjudication is all the more pressing. As stated by Moldaver J.A. for the Ontario Court of Appeal in the case of R. v. D.(D.), [2002] OJ No. 1061 (Ont. C.A.) at para 37:
[37] We as a society owe it to our children to protect them from the harm caused by offenders like the appellant. Our children are at once our most valued and our most vulnerable assets. …
(See R. v. D.(D.), supra paras 35-37.)
[56] Moldaver J.A. further commented upon the long term and serious psychological harm suffered by children as a result of being sexually abused.
[57] The Crown submits that Mr. Dungey’s alleged conduct constitutes an egregious breach of trust. The Crown submits that it falls squarely within the category of conduct Moldaver J.A. referred to in R. v. D.(D.). Mr. Dungey is charged with sexually abusing a child of his family. His niece had a reasonable expectation to feel safe around her uncle.
[58] I find that in the balancing of interests between the public interest and the prospect of Mr. Dungey’s imperiled health by the trial process, such a balancing does not favour Mr. Dungey. This is not one of the clearest of cases and I find that a stay of proceedings would be an inappropriate remedy.
[59] In conclusion, I find that the continued prosecution of Mr. Dungey does not amount to an abuse of process and violation of his rights under ss. 7 and 11(d) of the Charter. Further, a stay of proceedings pursuant to s. 24(1) of the Charter is not an appropriate remedy. For these reasons, Mr. Dungey has not established a breach of ss. 7, 11(d) of the Charter. Further, Mr. Dungey has not satisfied his onus to establish that the trial process would cause significant harm to his health or that the trial process would seriously imperil his health.
Disposition
[60] For these stated reasons, Mr. Dungey’s application is hereby dismissed.