COURT FILE NO.: CR-15-00001387 DATE: 20170525 CORRIGENDA: 20170602
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – T.G. Defendant
Counsel: J. McIntyre, for the Crown O. Widgerson, for the Defendant
HEARD: April 18 and 19, 2017
PUBLICATION RESTRICTION NOTICE
Pursuant to subsection 486.4 of the Criminal Code, there is a ban on disclosing the name of any person involved in the proceedings as a party or a witness or any information likely to identify any such person. This judgment complies with this restriction so that it can be published;
Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.
REVISED RULING ON APPLICATION
The text of the original ruling has been corrected with the text of the corrigendum (released today’s date)
DI LUCA J.:
[1] T.G. is charged with three counts of sexual assault, three counts of sexual interference and invitation to sexual touching against his step-daughter A.G. His trial is scheduled to commence in June, 2017 before me with a jury.
[2] T.G. brings an application seeking a discharge on all counts on the basis of cause of action estoppel. Alternatively, he seeks a stay of proceedings on the basis of abuse of process. This matter was the subject of earlier rulings dealing with a review of redactions to the disclosure package, as well as a determination of the scope and application of solicitor-client privilege in relation to certain communications between Crown counsel and the police involved in this investigation.
[3] For the reasons that follow, I am of the view that the doctrine of cause of action estoppel is not applicable. I am also of the view that this is not the clearest of cases of abuse of process warranting a stay of proceedings. As a result, I dismiss the application.
The Evidence on the Application
[4] In support of this application, T.G. filed an application record containing a transcript of A.G.’s testimony at a preliminary inquiry that occurred in Winnipeg, Manitoba. He also called the viva voce testimony of Sergeant Kelly Chester, the investigating officer with York Region Police. While a copy of the transcript of Sgt. Chester’s evidence from the preliminary inquiry in this matter was included in the application record, it was not relied upon by the defence. The Crown, however, had Sgt. Chester adopt certain portions of that evidence before me.
[5] During the course of her testimony, the defence identified a package of documents from the Winnipeg Police Service that were obtained by Sgt. Chester. On consent, those documents were tendered as exhibits on this motion. Lastly, the Crown was permitted to file a transcript of A.G.’s testimony at the preliminary inquiry that occurred in Newmarket, Ontario.
The Background Facts
[6] On March 28, 2011, A.G. attended at the Winnipeg Police Service and made a complaint regarding alleged sexual abuse by her step-father. The allegations included incidents that happened in York Region between 1999 and 2000 and Winnipeg between 2005 and 2011.
[7] On the basis of the complaint, charges were laid in Winnipeg on June 24, 2011. The charges included one count of sexual assault with an offence date of February 6, 2011, as well as one count of sexual assault and one count of sexual interference with the offence date of November 1, 2005 to November 30, 2005.
[8] On May 31, 2011, Detective Webb of the Winnipeg Police advised Sgt. Chester of the York Region Police of the allegations. In July 2011, a package of material containing police reports, notes, arrest reports, synopses and a video and transcript of the complainant’s statement was sent by the Winnipeg Police to the York Region Police for review. The “hope” of the Winnipeg Police was that the York Region Police would act on the package and presumably lay charges. That said, they did not directly suggest to Sgt. Chester of the York Region Police that she should lay charges, nor did Sgt. Chester tell the Winnipeg police that she was going to lay charges.
[9] Sgt. Chester received the package and completed her review of all of the material in the package by August 31, 2011. Sgt. Chester believed at that time that she had grounds to lay charges in York Region but did not do so.
[10] T.G.’s matter proceeded to a preliminary inquiry in Winnipeg in April 2012. The complainant testified and recounted in her testimony both the incidents that allegedly happened in York Region and those that happened in Winnipeg. At the completion of her testimony, the Crown offered to stay the prosecution upon T.G. agreeing to enter into a s. 810 peace bond. The resolution was accepted and the Winnipeg charges were stayed.
[11] Between August 2011 and November 2013, no substantive investigation was done by Sgt. Chester, though there was some email communication with Det. Webb inquiring as to the name of the Crown prosecuting the matter and also seeking an update on the case. For one year of this time period, Sgt. Chester was away on a maternity leave.
[12] On or about October 24, 2013, Sgt. Chester learned of the outcome of the Winnipeg charges. On November 14, 2013, Sgt. Chester communicated with the complainant for the first time and asked whether the complainant wished to pursue charges against T.G. in York Region. The complainant replied in the affirmative 11 days later.
[13] On February 12, 2014, Sgt. Chester met with the complainant to review her initial statement given to the Winnipeg Police. A further statement was taken. The decision to proceed with charges was made following the taking of this statement.
[14] During the time period following the arrival of the package from the Winnipeg Police until May of 2014, Sgt. Chester also sought legal advice from Crown Attorneys in relation to how to proceed with the file. The final advice was received on May 29, 2014.
[15] On June 16, 2014, over two years after the Winnipeg charges had been stayed and more than three years after the complainant gave her initial statement to police, T.G. was notified that the police in York Region would be laying charges in relation to incidents that allegedly occurred in this jurisdiction. Following negotiations between his then counsel and the police, T.G. voluntarily surrendered to York Region Police and was charged.
[16] The York Region charges include three counts of sexual assault with the offence date of January 1, 1999 and December 31, 2000, three counts of sexual interference with the same offence dates and one count of invitation to sexual touching, also with the same offence dates.
Cause of Action Estoppel
[17] The defence argues that the doctrine of cause of action estoppel operates in this case to bar the proceedings in York Region. In brief, the defence argues that one broad count of sexual assault and sexual interference could have been laid encompassing the events which are alleged to have occurred in both Ontario and Manitoba between January 1, 1999 and February 6, 2011. Had the offence been so framed, it could have been prosecuted in one province, in this case Manitoba. And if that had happened, the defence argues that T.G. would have been in a position to have the entire matter stayed in exchange for a peace bond. The bifurcation of the proceedings has deprived T.G. of the opportunity to resolve the entire matter favourably. It has also resulted in T.G. having to face a second proceeding despite the earlier resolution of the Winnipeg charges.
[18] The defence argues that once the police had reasonable and probable grounds to lay the charges in both Manitoba and Ontario, they should have acted on both. The failure to proceed on the Ontario charges, while the Manitoba charges were prosecuted and resolved gives rise to a cause of action estoppel as discussed in R. v. Ward, [2002] O.J. No. 5398 (ONSC).
[19] Before discussing the Ward decision, I want to unpack some of the constituent elements of the defence argument. Section 581(1) of the Criminal Code requires that each count in an information or indictment count apply to a “single transaction.” The case law interpreting this provision suggests that a “single transaction” is not restricted to a single incident or event but can be comprised of multiple related incidents; see R. v. Hulan, [1969] 2 O.R. 283 (Ont.C.A.) at p. 290, R. v. Chamot, 2012 ONCA 903 at paras. 49-50 and R. v. S.(F.) (1997), 34 O.R. (3d) 332 (Ont.C.A.) at p. 339. In cases where a number of acts are linked by factual similarity involving the same parties, the “single transaction” rule is not violated where one count is used to capture a number of acts. On the other hand, in cases where the acts encompassed in a single count involve different complainants, places and times, the “single transaction” rule will be violated; see R. v. K.(C.), 1999 CarswellOnt 3951 (ONCA).
[20] The “single transaction” rule is permissive in its operation. As long as individual acts are sufficiently related such that they can be said to form a “single transaction” as that term has been interpreted, they may be included in a single count in an information or indictment. However, there is no rule or requirement that related acts must be charged together in a single count. The police in framing counts in an information are free to charge individual acts as separate counts.
[21] As a matter of practice, counts are drafted in different fashions depending on the facts of the case and related prosecutorial decisions. It is not uncommon for broadly drafted counts to be used to capture a series of events. It is equally not uncommon for a narrowly drafted count to be used in relation to a discrete or distinct event. At times, both are found on one indictment or information. Indeed, the information used on the Winnipeg charges in this case contains both broadly dated counts that encompass more than one incident of alleged sexual assault and one specifically dated count relating to one single alleged incident.
[22] In my view, given the fact that the allegations in this case involve the same accused and the same complainant, it would have been permissible to frame the counts in a broad fashion covering all of the alleged incidents. However, there is nothing objectionable with the manner in which the police chose to frame the counts in the two informations in this case. Indeed, even if the events had been allegedly committed in one province alone, the separation of the allegations into the various counts set out in the informations would have been unobjectionable.
[23] I turn next to the cross-provincial aspect of this issue. There is no issue that an offence that starts in one province and is completed in another can be prosecuted in either province; see s. 476(b) of the Criminal Code. This section has been resorted to in sexual assault cases where a series of incidents occurred over a period of time and across provincial borders; see R. v. L.(D.A.) (1996), 107 C.C.C. (3d) 178 (B.C.C.A.) and R. v. F.R.H., 2013 ONSC 2238 at para. 25.
[24] In my view, there is nothing in s. 476(b) of the Criminal Code that requires the prosecution in one province of an offence comprised of multiple incidents occurring across provincial borders. While it would be permissible to prosecute such an offence in one or the other province, it would be equally permissible to have the incidents divided into separate counts prosecuted in the respective province where they allegedly occurred.
[25] Of course, where the “single transaction” is in fact a single incident that occurred across a provincial border such as for example trafficking a firearm or drugs, only one count will be appropriate. Where, however, the cross-provincial nature of the incident only arises if the police decide to lay a charge with broad offence dates capturing incidents that happened in both provinces, it does not appear to be improper for the police to lay separate charges in each jurisdiction.
The Doctrine of Res Judicata
[26] The doctrine of res judicata has a long history in our justice system. At its core, the doctrine is concerned with concepts of fairness and finality; see British Columbia (Workers’ Compensation Board) v. Figiola, 2011 SCC 52, [2011] 3 S.C.R. 422 at para. 34, Hoque v. Montreal Trust Co. of Canada 1997 NSCA 153 and Re Ontario Sugar Co. (1910), 22 O.L.R. 621 (Ont. H.C.J.) at p. 623, affd (1911), 24 O.L.R. 332. The doctrine is applied in both civil and criminal matters and has developed a variety of manifestations over the years which have been fairly described as “far too complicated”; see Saskatoon Credit Union Ltd. v. Central Park Entreprises Ltd. (1988), 47 D.L.R. 4th 431, at 435 and see also Sopinka, Lederman & Bryant, The Law of Evidence in Canada (4th ed.) Lexis Nexis Canada Inc. 2014 at para. 19.57.
[27] In R. v. Mahalingan, 2008 SCC 63 at paras. 14-17, the Supreme Court of Canada reviews the doctrine of res judicata and notes as follows:
[14] The common law developed two doctrines to deal with problems of unfair relitigation, consistency of result and finality. Both come out of the broad concept known as res judicata.
[15] The first branch of res judicata is sometimes called cause of action estoppel in the civil context, or double jeopardy in the criminal context. An argument on this basis asserts that the cause of action in a current proceeding is the same as the cause of action in a proceeding previously litigated, with the result that the current action should not proceed. In criminal law, the double jeopardy principle finds expression in the pleas of autrefois acquit and autrefois convict.
[16] The second branch of res judicata is issue estoppel. Issue estoppel is concerned not with whether the cause of action in two proceedings is the same, but with whether an issue to be decided in proving the current action is the same as an issue decided in a previous proceeding. The causes of action may be (and typically are) different. Issue estoppel in Canada has historically applied to both civil and criminal law.
[17] While double jeopardy is concerned with the total cause of action and the ultimate result of the litigation, issue estoppel is concerned with particular issues arising in two different pieces of litigation.
[28] Accordingly, the broad concept of res judicata is divided into two branches; issue estoppel and cause of action estoppel. As set out by McLachlin CJC in Mahalingan, cause of action estoppel in the criminal context is referred to as double jeopardy. While McLachlin CJC notes that double jeopardy in the criminal context is covered by the special pleas of autrefois convict and autrefois acquit, it is clear that the common law doctrine of res judicata, which is preserved by virtue of s. 8(3) of the Criminal Code, is broader in scope than the statutory provisions of the Code. In this regard, I note the comments of Laskin J. (as he then was) in R. v. Kienapple, [1975] 1 S.C.R. 729 at p. 748:
Where there has been a previous conviction of an accused, whether in a former trial or on one count of a multicount indictment, issue estoppel is obviously an inappropriate term to urge against a further conviction of another offence. So, too, would autrefois convict in its strict connotation; hence, the utility of res judicata.
[29] As well, double jeopardy is also captured by s. 11(h) of the Charter which provides that if a person is acquitted or convicted of an offence, he or she shall not be tried again for the same offence.
[30] The various manifestations of res judicata in criminal law all have the same general policy concerns. However, each manifestation is to be considered separately. As McLachlin J. (as she then was) explains in R. v. Van Rassel, [1990] 1 S.C.R. 225 at paras. 13-14:
[D]id the Court of Appeal err in considering only the defence of autrefois acquit, without dealing with the other principles relied on by the accused, namely res judicata, the rule in Kienapple, the Latin maxim nemo debet bis vexari pro una et eadem causa and s. 11(h) of the Charter?
I would answer this question in the affirmative. The double jeopardy concept expressed in the Latin maxim cited is a principle of general application which is expressed in the form of more specific rules, such as the plea of autrefois acquit, issue estoppel and the rule stated in Kienapple. The term res judicata, likewise, has sometimes been used in a broad sense to comprise all of these various principles, though since Laskin J. (as he then was) expressed his preference for the term in Kienapple, at p. 748, to describe the principle in that case it has often been used as a term of art. The case law shows that these principles differ in the way they are applied, despite their common origin. The application of s. 11(h) of the Charter must be determined by considering the wording of this provision. For these reasons, each of the defences put forward by the accused must be considered separately.
[31] One unifying theme in all the manifestations of res judicata is the requirement of prior adjudication. Indeed, the very phrase “res judicata” is defined in Black’s Law Dictionary as “a thing adjudged”.
[32] In the civil context, it has been repeatedly held that a final judicial decision on the merits is an absolute requirement, see Re Bullen (1971), 21 D.L.R. (3d) 628 at p. 631, Angle v. M.N.R., [1975] 2 S.C.R. 248 and more recently Re Cliffs Over Maple Bay, 2011 BCCA 180 at paras. 28-35.
[33] In the criminal context, the case law supports a similar, though not identical approach as it relates to the special pleas of autrefois acquit and convict, the Kienapple principle and s. 11(h) of the Charter. The accused must have been placed “in jeopardy”; see R. v. Belair (1988), 41 C.C.C. (3d) 329 (Ont.C.A.). The jeopardy must pertain to sufficiently related or similar offences; see R. v. Rinnie, [1970] 3 C.C.C. 218 (Alta.C.A.), R. v. Turmel (1996), 109 C.C.C. (3d) 162 (Ont.C.A.), R. v. Prince, [1986] 2 S.C.R. 480 and R. v. Wigman, [1987] 1 S.C.R. 246. As well, the matter must have been judicially determined, though not necessarily on the merits; see R. v. Riddle, [1980] 1 S.C.R. 380. A withdrawal of a charge or a stay of the charges by the Crown prior to a plea being entered is not a final determination for the purpose of the res judicata; see R. v. Tateham (1982), 70 C.C.C. (2d) 565 (B.C.C.A.), and R. v. Burrows (1983), 6 C.C.C. (3d) 54 (Man.C.A.).
R. v. Ward
[34] I turn now to the Ward decision. I note at the outset that the Ward decision is the only decision provided to me which applies the civil concept of cause of action estoppel in the criminal law context.
[35] The facts of Ward are notable. Following an incident involving Ward, the complainant went to police to make a statement. She advised that over a period of 24 hours between May 7 and 8, 1985, Ward had assaulted her with a weapon and confined her. She also told police that Ward had sexually assaulted her. The police told her that in view of her two prior divorces, she would not likely be believed in relation to the sexual assault allegation. The officers went so far as to tell her to avoid any mention of the purported sexual assault if asked.
[36] Ward was charged with assault with a weapon and forcible confinement only. He entered a guilty plea to common assault and was sentenced accordingly.
[37] Many years later, Ward found himself in trouble again. He was charged with a number of offences including sexual assault with a weapon and sexual assault causing bodily harm relating back to the original complaint in 1985. Ward objected to being tried on these counts and argued that the plea of autrefois convict should apply. He also raised the alternative grounds of res judicata and abuse of process.
[38] Nordheimer J. dismissed the autrefois convict argument on the basis that the charges which Ward entered a guilty plea were different than the two sexual assault based offences now before the Court. He then turned to a consideration of res judicata and the civil concept of cause of action estoppel. In this regard, he explained at para. 31:
There does not appear to me to be any reason why the principle of res judicata in its cause of action sense should not apply equally in the criminal context. In the civil context it requires that a party bring all of its causes of action and seek all of its relief in a single proceeding. In the criminal context, it would require the Crown to prosecute for all offenses revealed by the known facts or face the consequence of being subsequently foreclosed from doing so. I emphasize that the application of the principle would foreclose the Crown only from prosecuting for offenses that were known to arise on the facts at the time. It would not preclude prosecutions for offenses arising from subsequently acquired facts as in the case of R. v. Morris (1867), 10 Cox. C.C. 480 where there were successive successful prosecutions for assault and then manslaughter after the assault victim died.
[39] He concluded at paras. 37 and 38:
In this case, I consider it appropriate to apply the principle of res judicata in its broader scope to preclude the prosecution of the defendant on counts 10 and 11. I do so for the following reasons. All of the facts necessary to prosecute these charges were known to the police in 1986. It was a direct result of the actions of the police that these charges were not brought at the time. It is inherently unfair to the defendant to allow the State to hold in abeyance a prosecution for known offenses only to resurrect them at a later date when different officials with different views are then in charge. In my view, the Crown is not divisible in its prosecutorial function. If a mistake is made whether by the police or by Crown Attorneys in the course of a prosecution, they collectively bear the consequences of those errors. To permit otherwise would leave open a wide scope for abuse, although I do not suggest that any intentional abuse is present here. By way of example, the police could withhold information which would support other charges while the defendant was tried for a certain offence and, depending on the success or lack thereof of the first prosecution, the information withheld could then be used to bring a further prosecution once the credibility of witnesses had been tested and defence tactics and strategy revealed.
To permit such a state of affairs also results in the opposite of what the law and the principle of res judicata are designed to promote and that is the finality of proceedings. One can see the consequences in this very case. The defendant was arrested for the events of 1985 and he was charged with serious offenses. He pled guilty to a lesser included offence. He was sentenced. One can assume that in deciding to plead guilty, and in deciding to accept the sentence consequent on that plea, the defendant reasonably expected that he was putting this matter behind him. Instead, he now finds himself, some 15 years later, facing charges for the very events he thought he had dealt with in 1986. It is difficult to portray these events as other than an instance of double jeopardy. The fundamental unfairness of the result is manifest and ought not to be permitted.
[40] Accepting for the sake of argument that the criminal law branch of res judicata may be broader than the special pleas of autrefois convict and autrefois acquit, the Kienapple principle and s. 11(h) of the Charter, the question that needs to be addressed is whether and to what extent it includes cause of action estoppel in the civil law sense. The answer to this question is crucial.
[41] A key feature of the cause of action estoppel is that the party bringing an action is not permitted to split its case. The plaintiff must bring forward the entire action at once and not proceed in a piecemeal fashion; see Donald J. Lange, The Doctrine of Res Judicata in Canada, 3rd ed. (Markham: LexisNexis, 2010), at p. 11. A second cause of action is prohibited where that action should (as opposed to could) have been brought as part of the first action that was adjudicated. As Cromwell J.A. (as he then was) explains in Hoque, supra, at para. 37:
Although many of these authorities cite with approval the broad language of Henderson v. Henderson, supra, to the effect that any matter which the parties had the opportunity to raise will be barred, I think, however, that this language is somewhat too wide. The better principle is that those issues which the parties had the opportunity to raise and, in all the circumstances, should have raised, will be barred. In determining whether the matter should have been raised, a court will consider whether the proceeding constitutes a collateral attack on the earlier findings, whether it simply asserts a new legal conception of facts previously litigated, whether it relies on "new" evidence that could have been discovered in the earlier proceeding with reasonable diligence, whether the two proceedings relate to separate and distinct causes of action and whether, in all the circumstances, the second proceeding constitutes an abuse of process.
[42] In my view, the civil law cause of action estoppel doctrine does not apply in the criminal context. To the extent that Ward stands for this proposition, I respectfully disagree and decline to follow it. Simply stated, apart from the Ward decision, there is no authority for importing the concept of cause of action estoppel into the criminal context. To the contrary, the authority available suggests that in the criminal context, the comparable doctrine is double jeopardy, see Justice S. Casey Hill, David M. Tanovich and Louis P. Strezos in McWilliams’ Canadian Criminal Evidence, 5th ed. (loose-leaf) (Toronto: Canada Law Book, 2014), at 18.10.
[43] The concept of double jeopardy is similar in purpose to cause of action estoppel but has some key differences. One key difference is that double jeopardy does not address the problem of “case splitting” in the same sense that cause of action estoppel does. Double jeopardy acts to prevent an accused from being placed in jeopardy a second time for an offence that has been already adjudicated. It does not generally import a requirement on the Crown to prosecute all charges that “should” be prosecuted in relation to a set of facts or an incident at the same time. The only instance, to my knowledge, where this aspect of “case splitting” is imported into double jeopardy in the criminal law is found in s. 610 of the Criminal Code which extends autrefois acquit and convict to instances where the Crown seeks to re-prosecute an offence already determined by adding a further statement of intention or circumstances of aggravation warranting an increased punishment or where a Crowns seeks to re-litigate a manslaughter or infanticide charge as murder (and vice versa), see R. v. Hemmingway, Evert and Benford (1971), 5 C.C.C. (2d) 127 (B.C.Co.Ct.) and R. v. Hall (1999), 134 C.C.C. (93d) 256 (Alta.Q.B.).
[44] If I am wrong in this conclusion, there is another reason why cause of action estoppel is inapplicable and that is because the case against T.G. was never finally determined. The Crown stayed the prosecution after hearing from the complainant at the preliminary inquiry. As a result, T.G. was never arraigned and therefore never placed in jeopardy. As well, there was no judicial determination of the matter. These two factors entirely foreclose the application of the doctrine of res judicata whether framed as cause of action estoppel or double jeopardy.
Abuse of Process
[45] That, however, does not end matters. The doctrine of abuse of process provides an avenue to review and remedy instances where the Crown or police decision to split a case is manifestly unfair to an accused person. Indeed, in the civil context, the doctrine of abuse of process has been resorted to in addressing instances where the facts do not neatly fit within the confines of cause of action or issue estoppel but nonetheless render a proceeding unfair, see Toronto (City) v. C.U.P.E., 2003 SCC 64, [2003] 3 S.C.R. 149 at paras. 37-44.
[46] In the criminal context, resort to the abuse of process doctrine in addressing instances of charge splitting can be found inferentially in the “gating” cases which deal with instances where the execution of a warrant to arrest an accused is intentionally delayed in order to maximize the accused’s period of detention, see: Parker v. Canada (Solicitor-General) (1990), 57 C.C.C. (3d) 68 (Ont.H.C.J.) at p. 84-86 and R. v. Larche (2006), 2006 SCC 56, 214 C.C.C. (3d) 289 (S.C.C.) at para. 39.
[47] The case splitting/abuse of process issue was also directly addressed in R. v. B. (1986), 29 C.C.C. (3d) 365 (Ont.C.A.), where the Court of Appeal was confronted with a scenario where the accused had been put on trial for sexually assaulting his daughter. The daughter was a reluctant witness and had not spoken with police prior to being called as a witness. The defence advanced was consent and the accused testified that he had sex with his daughter but that it was consensual. Following his acquittal, he was charged with incest. The trial judge on the incest charge stayed the proceedings on the basis of abuse of process. The Court of Appeal disagreed and sent the matter back for trial, noting that the Crown would not have known about the evidence the complainant would give at trial until immediately before or even during the trial on the sexual assault charge. The Court also rejected the argument that the pursuit of the incest charge after the acquittal on the charge of sexual assault deprived the accused of the ability to favourably resolve the matter with a guilty plea to sexual assault. The Court noted that this situation was not “vexatious, unfair or oppressive”. Nonetheless, the Court of Appeal noted that “case splitting” could amount to an abuse of process in three circumstances (at p.10 QL):
(1) where the second trial is such that it will, in effect, force the accused to answer for the same delinquency twice; or
(2) where the second trial is such that it will, in effect, relitigate matters that have already been decided on the merits, raising the spectre of inconsistent verdicts; or
(3) where the second trial is brought because of malice or spite so as to harass the accused and not for any proper purpose.
[48] R. v. B. was decided over 30 years ago. The law on abuse of process has developed over those years. In view of the developments, it may well be that the list of examples in R. v. B. is not exhaustive and that similar scenarios warranting a stay of proceedings might arise. In my view, the facts in Ward could readily be one such example. It could easily be argued that the decision to lay the sexual assault related charges against Mr. Ward so many years after he had been initially charged with offences stemming from the same incident, in circumstances where the police made an initial decision to not pursue the more serious charges and where he had resolved the earlier charges and served his sentence, amounted to an abuse of process warranting a stay.
Application to this Case
[49] The claim in this case falls under the residual category of abuse of process as there is no suggestion that the Applicant cannot receive a fair trial; see R. v. Babos (2014), 2014 SCC 16, 308 C.C.C. (3d) 445 (S.C.C.). In my view, the conduct of the police here falls short of establishing an abuse of process warranting a stay of proceedings.
[50] While the police were legally free to frame this matter cross-provincially and proceed globally in either Manitoba or Ontario, they were not required to do so. While there is no evidence that the police contemplated framing a count in the information to encompass both the acts alleged in Winnipeg with those alleged in York Region, I do not fault the police for this failure. Moreover, I do not find that the police intentionally framed the counts as they did in order to prejudice the accused.
[51] On the evidence, it appears that the Winnipeg Police, upon taking the initial statement from the complainant, put together a package of material and provided it to the York Region Police with the expectation that charges would be commenced. To the extent that I can infer the nature of the decision made by the police, it appears to have been simply a decision that the Winnipeg Police would only deal with the incidents that happened in Winnipeg and would send the information relating to the York Region incidents to the York Region Police for consideration. In the absence of evidence that this was done for an improper purpose, I do not fault the Winnipeg Police for making this decision. Indeed, it strikes me as a common sense decision supported by the presumption in s. 478(1) of the Criminal Code which requires that offences be prosecuted in the province where they occur.
[52] In terms of the York Region Police, I find that reasonable grounds to lay a charge were formed upon receipt and review of the package of material from the Winnipeg Police. I find that once the information was received by York Region Police, the matter was effectively shelved for a period of time. Part of that time was due to Sgt. Chester’s maternity leave. Part of that time was also spent waiting to see what the outcome of the Winnipeg charges might be. Part of that time was ostensibly related to getting legal advice from the Crown on how/whether to proceed.
[53] In terms of the request for advice from the Crown, I note that solicitor-client privilege was not waived in this case. As a result, I do not know what precise advice was sought and given. I cannot speculate as to the nature of the advice and the impact it may have had on the proceedings. In view of the lack of waiver, the Crown is foreclosed from arguing that the police acted in “good faith” on the basis of legal advice, see: R. v. Campbell, [1999] 1 S.C.R. 565. As a result, I will not consider the fact that the police sought advice from the Crown in assessing whether or not they acted abusively in the case.
[54] The Applicant argues that the conduct of the York Region Police in waiting to see the outcome of the Winnipeg charges is abusive because it is based upon the officer’s personal feelings about the quality of the outcome in the Winnipeg charges. This, according to the Applicant, is arbitrary and inconsistent with fair play and decency.
[55] I agree with the Applicant that it would be an abuse of the Court’s process to permit the police to pursue charges against an accused as a form of vindication for the accused’s success in a separate matter. That said, there a number of reasons why the police and/or the Crown may consider legitimately delaying the commencement proceedings in certain cases, including considerations relating to the public interest, assessment of reasonable prospect of conviction and potential evidentiary and procedural issues stemming from multiple trials. Decisions made in relation to commencing and continuing prosecutions are generally accorded a significant degree of deference in view of the broad scope of prosecutorial discretion; see R. v. Nixon, 2011 SCC 34 and R. v. Anderson, 2014 SCC 41.
[56] I find that Sgt. Chester was not acting vindictively when she decided to pursue charges against the Applicant. I accept that following receipt of an update on the status of the Winnipeg charges, Sgt. Chester contacted the complainant to canvass whether the complainant wanted to “go forward” or “close” the matter. I infer from this evidence that if the complainant had indicated a desire to “close” the case, the police would have given appropriate consideration to not proceeding with the charges. While the police are not bound to follow the input of a complainant, the process of getting input is unobjectionable.
[57] On the whole, I have no basis upon which I can infer that Sgt. Chester pursued charges because of her displeasure with the outcome of the Winnipeg charges. I reject this basis for the abuse of process argument.
[58] The Applicant also argues that the delay in commencing the charges against him in York Region prejudiced him because it caused him to lose the opportunity to combine and favourably resolve all his matters in one instance. I reject this argument for a number of reasons.
[59] First, if the police and Crown had decided to commence the charges in Winnipeg and York Region at the same time, the Applicant’s ability to combine the matters would only have formally arisen if he was prepared to plead guilty; see s. 478(3) of the Criminal Code. While the Applicant would have been free to attempt to convince the Crown and/or the police to re-constitute the prosecution in one location, this would have been an informal or ad hoc process, without right or entitlement on his behalf.
[60] Second, it is speculative to suggest that the Crown in Winnipeg would have offered the same “deal” if the York Region charges were before the Court in Winnipeg. I acknowledge that the Crown called the entire narrative of events as part of the evidence at the preliminary inquiry before deciding to stay the charges, but the Crown was only deciding to resolve the charges in Winnipeg not the global set of charges. Moreover, the Crown, as it is entitled to do, gave no reasons why it reached the resolution it did in Winnipeg. The Crown may have had any number of reasons not to pursue the Winnipeg prosecution and I am no position to guess as to why it made the decision it made.
[61] Third, I agree that had the charges been extant in York Region at the time the resolution of the charges in Winnipeg had been reached, the Applicant could have sought the withdrawal or stay of those charges as part of the Winnipeg deal. However, whether this would have been agreed to by the Crown is a matter of speculation. I do not know whether the Crown in Winnipeg would have considered “rolling” the York Region charges into the Winnipeg deal, assuming of course those charges had been laid. If so, I do not know whether the Crown in Newmarket would ever have been agreeable to this resolution. In any event, the Applicant had his disclosure in the Winnipeg matter which included the material sent to York Region. Presumably, he was well aware of the fact that allegations had been made against him in relation to events that occurred in York Region. Nothing prevented him from seeking an undertaking to not prosecute the York Region charges as part of the Winnipeg deal.
[62] I do not view the loss of the opportunity to seek a favourable disposition of all charges against the Applicant as amounting to an abuse of process. While it may have been preferable from the Applicant’s perspective if his matters had aligned in a fashion that permitted global resolution, the fact that matters did not so align is not indicative of an abuse. Most importantly, I am not satisfied that what occurred here was orchestrated to by police in response to the favourable result the Applicant received in Winnipeg.
[63] I wish to add that while I am not satisfied that what occurred here is abusive, it is far from ideal and should not be encouraged. On the evidence before me, the police in York Region could have and indeed should have proceeded more expeditiously in assessing whether to commence charges against the Applicant. The grounds needed to lay charges were formed early in the process and no further investigation was undertaken for over two years. While pre-charge delay alone does not generally amount to an abuse of process, the police should not take the absence of an actual or constructive limitation period in indictable matters as an invitation to proceed in a less than expeditious and considered manner.
[64] The application is dismissed.
Justice J. Di Luca Released: June 2, 2017
CORRIGENDA
- First page Publication Ban: Addition of a s. 648(1) restriction on publication order.
ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – T.G. Defendant REVISED RULING ON APPLICATION Justice J. Di Luca Released: June 2, 2017