COURT FILE NO.: CR18-0011-00AP DATE: 2019-06-03
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent on Conviction Appeal/ Appellant on Sentence Appeal
– and –
Wyatt Kennedy Appellant on Conviction Appeal/ Respondent on Sentence Appeal
Richard Huneault, for the Crown
Brad Allison, for Mr. Kennedy
HEARD at Gore Bay: May 29, 2019
DECISION ON SUMMARY CONVICTION APPEAL
A.D. Kurke, J.
Overview
[1] Mr. Kennedy (the "appellant") appeals against his conviction of November 27, 2017 for sexual assault, asserting errors of law and fact, and the violation of his s. 11(b) Charter right. The Crown (the "respondent") appeals against the sentence imposed upon Mr. Kennedy on August 27, 2018, arguing that the sentence was demonstrably unfit in the circumstances of this case.
[2] For the following reasons, the conviction appeal is allowed, the conviction is set aside, and the matter is remitted back to the Ontario Court of Justice for a new trial. In that circumstance, the sentence appeal brought by the Crown need not be addressed.
Background Facts
Facts relating to delay
[3] The appellant was charged on January 15, 2016. His first court appearance in the Ontario Court of Justice at Gore Bay, Ontario was on January 25, 2016. From there the matter was adjourned to March 21, 2016, for disclosure and instructions from the appellant on waiving the 6-month limitation period so that the matter could proceed summarily.
[4] Disclosure was not immediately forthcoming, so the matter was adjourned to April 25, 2016 for that purpose. On April 25, 2016, the matter was adjourned for a judicial pre-trial on May 3, and returned to court May 16, 2016.
[5] From May 16, 2016, the matter was repeatedly adjourned while attempts were made to find trial dates. In this way, the case returned to court on June 27, 2016, July 18, 2016, August 25, 2016, September 12, 2016, October 4, 2016, November 1, 2016, and November 15, 2016.
[6] The second half of November 2016 involved a flurry of activity to set dates for the trial of the matter. An Affidavit of the Office Administrator for the Office of the Crown Attorney was filed on the s. 11(b) application. An exhibit to that Affidavit is made up of extended e-mail conversations about trial dates involving the Crown Attorney, Counsel to the Appellant ("Counsel"), and the Trial Coordinator. On November 17, 2016, the Trial Coordinator offered January 16, 17, 18, 19 and 20, 2017 as available for a four-day trial. Counsel indicated that he was not available on January 18 and January 19, 2017, given other engagements.
[7] Counsel also indicated on November 18, 2016 that in his view the other dates offered in January 2017 were not practical, as both the accused and the complainant were college students. The Trial Coordinator accordingly suggested looking to spring trial dates, when school was out. The Crown Attorney wrote to Counsel: "I hear what you are saying but there may be a benefit to closing the book on this. If you can waive delay, we can look to the summer but short of that, it's half a dozen of one, six of another."
[8] Counsel indicated that the appellant was not prepared to waive delay, so on November 18, the Trial Coordinator proposed again January 16, 17, and 20, 2017, with a fourth date to be scheduled. Counsel accepted the January 2017 dates on November 19, 2017, but sought an additional date to argue delay. The only available date for the delay argument prior to January 2017 trial would have been December 6, 2016, but Counsel indicated that that was insufficient time to acquire transcripts.
[9] On November 24, 2016, Counsel announced that some of the defence witnesses were students, and that they would not be available in January 2017, and accordingly the entire week of January 2017 was not acceptable to the defence.
[10] Ultimately, on December 6, 2016, trial dates of June 6, July 4, July 18, and August 1, 2017 were set.
[11] All of June 6, 2017 was consumed in dealing with evidence and submissions relating to the s. 11(b) application. The trial judge provided Reasons on July 4, 2017 dismissing the s. 11(b) application.
[12] The trial evidence was heard July 4, 2017, July 18, 2017, and August 1, 2017, on which date the Crown closed its case. The defence opened on August 1 with a brief witness, but then asserted that it had more witnesses to call, but that none was available that day. The case was adjourned, ultimately to August 29, 2017.
[13] On August 29, 2017, the defence advised Crown and court that it had no further evidence to present. The matter went to submissions, and the trial judge reserved his decision. The case went to September 5, 2017 to set a date for decision.
[14] On November 27, 2017, the trial judge read Reasons for Judgment into the record convicting the appellant of sexual assault. Counsel requested a pre-sentence report, which was ordered. The matter was adjourned to November 28, 2017, to set a date for sentencing.
[15] Sentencing submissions were heard July 19, 2018, and the sentencing decision was rendered August 27, 2018. There is no evidence or explanation in the record with respect to what happened on the case between November 28, 2017 and July 19, 2018. No further s. 11(b) application appears to have been argued.
Facts relating to the sexual assault
[16] Given that there will be a new trial on this charge, the circumstances of the case will be set out in brief compass.
[17] The 16-year-old complainant took part in a "girls' night" starting on April 2, 2015 at the home of a friend. Persons in attendance used the hot tub at the home and watched a movie in the basement. The complainant admitted to consuming several mixed drinks during the course of the evening. A group of males also attended the home, among whom was the appellant.
[18] At some point in the early morning hours of the following day, April 3, 2015, the complainant absented herself from the rest of the young people in the home, and went to sleep in one of two single beds in the bedroom of a son of the family, who was among the males also congregating in the home. She was the first in the room, though the son and a friend came in afterwards and went to sleep in the other bed in the bedroom.
[19] The complainant awoke in the dark to a male on top of her, with his penis inside of her. Her shorts had been taken down. She did not know who this male was, and she was terrified. She pretended to be asleep. She did not see her assailant because of the darkness in the room, and because she kept her eyes closed during the incident. While the incident was occurring, the male said her name. He kissed her breasts, grabbed them, "went down on" her, tried to kiss her mouth, and put her hand on his penis. Finally, the male got up and left the room, and the complainant took the opportunity to pull her shorts back up.
[20] The male returned to the room, got back in the bed, and seemed eventually to go to sleep. The complainant fled the room, hid in another bedroom behind a door when the male came looking for her, and then she got into the bed in that room with other females. All that the complainant could describe of her assailant was his boxer shorts and that he seemed to have a deep voice when she heard him say her name.
[21] Based on the deep voice of her assailant, the complainant initially believed that he was one of the males in the other bed in the room in which she went to sleep. However, both males in that bed testified at trial. Their testimony was to the effect that they were not the male involved in assaulting the complainant, and they saw and heard nothing of any assault. They both provided to police consent samples of their DNA for forensic comparison.
[22] After the complainant's escape from her assailant, police were contacted, and the complainant was interviewed. She was brought to a hospital in Sudbury, where a nurse named "Barb" conducted a "rape kit" examination. Neither "Barb" nor anyone else was called to testify about the examination of the complainant, about the taking or preservation of any samples of bodily substances that were taken from the person of the complainant, or about the nature of any paperwork that accompanied the rape kit: who filled it out, when or where it was filled out, the accuracy of such paperwork, or whether it was made in the usual and ordinary course of hospital business.
[23] Cst. Coultis, the investigating officer, testified that she first had contact with the rape kit at the police detachment in Gore Bay. She testified that a different officer, Cst. Smith, had taken possession of the kit in Sudbury and brought it to Gore Bay, though Cst. Coultis did not witness this herself. Cst. Coultis and Cst. Smith repackaged the contents of the kit and sent them to the Centre of Forensic Sciences ("CFS"). Cst. Smith was not called to testify at trial.
[24] A sample of the appellant's DNA was taken from him by warrant. The continuity of this sample from its taking through its analysis at the CFS was admitted by Counsel.
[25] At trial Crown counsel (who was not the Crown on appeal) filed, as Exhibit 10, eleven pages of documents that were purportedly part of the rape kit, "under the authority of Ares v. Venner as records made to be relied on". Counsel agreed that the papers could be filed, subject to proof and submissions about weight. No proof was ever forthcoming at trial about these documents. And indeed, Exhibit 10 notes an officer other than Cst. Smith as the officer to whom the rape kit was given for transport.
[26] Michael Bissonnette from the CFS was qualified to give opinion evidence and testified that based on the DNA sample taken from the appellant, he could not be excluded as the donor of amylase samples purportedly taken from the breast area and lip of the complainant. The DNA from the other boys excluded them as donors. Mr. Bissonnette was not himself involved in the collection of the DNA samples.
ISSUE 1: Section 11(b) of the Charter
[27] The appellant submits that the trial judge erred in determining that the appellant's s. 11(b) Charter right was not breached.
[28] In particular, the appellant asserts the trial judge erred in assigning to the defence delay caused by the appellant's rejection of trial dates in January 2017. The trial judge reckoned this as a period of six months of delay. The appellant further submits that the trial judge erred in failing to recognize that even if the trial dates in January 2017 had been accepted, some delay was inevitable in any event, as only three days were available at that time, and more trial time would have been required.
The law
[29] The decision in R. v. Jordan, 2016 SCC 27, provides a framework for the determination of unreasonable delay in criminal proceedings. For trials in the Ontario Court of Justice, 18 months of net delay – that is, total delay less waived periods of time and delay caused by the defence – is the ceiling. If the net delay exceeds the ceiling, then the delay is presumptively unreasonable, and the Crown has the burden of showing that exceptional circumstances justified the delay. Below the ceiling, the defence has the burden of showing that the delay was nevertheless unreasonable: R. v. Jordan, 2016 SCC 27, at paras. 5, 46-49, 60, 68; R. v. McManus, 2017 ONCA 188, at paras. 21-22.
[30] Where the presumptive ceiling is not exceeded, a stay of proceedings will be rare and granted only in clear cases, and only where the defence establishes both that it took meaningful steps demonstrating a sustained effort to expedite proceedings, and that the case took markedly longer to complete than it reasonably should have: Jordan, at paras. 82-89.
Analysis
[31] In the circumstances of this case, it is apparent that sentencing was delayed for a significant period of time. However, there was no evidence before the trial court or now before this court to assist in interpreting the delay from November 27, 2017, the date of the conviction, until August 27, 2018, the date of sentencing. Nor was the trial court called upon to re-adjudicate the s. 11(b) Charter issue at any point after the trial judge rendered his s. 11(b) ruling on July 4, 2017. In the absence of a proper record, that period cannot now be adjudicated. Nevertheless, the determination of guilt was made on November 27, 2017, and it is to that date that a reviewing court can fairly look to assess the correctness of the trial judge's decision.
[32] In this case, the total period of delay from the laying of the charge (January 15, 2016) through to the finding of guilt (November 27, 2017) was 22.5 months. From this total delay must be deducted waived periods of delay and defence-caused delay. The trial judge found no evidence of clear and unequivocal waiver. The issue to be determined is whether there was any defence-caused delay, and, if so, how much delay there was.
[33] Concerning the selection and use of trial dates, the following observations can be made:
a. In November 2016, there were initially five trial dates on offer: January 16-20, 2017;
b. The appellant turned down two of those dates because of the unavailability of his choice of counsel;
c. The Court and Crown were obviously prepared to proceed on any or all of the January 2017 dates that were offered. The Crown Attorney wanted either the trial to proceed in January 2017 or a waiver of delay by the appellant. The defence chose to refuse the January dates, and take much later dates, based on the school schedules of the appellant and student witnesses for the defence;
d. On August 1, 2017, the appellant offered a single witness, and there is no evidence that her educational situation would have limited the appellant's ability to adduce her evidence in January 2017;
e. The trial could have been completed on August 1, 2017, but for the appellant's request to adjourn it so that more witnesses could be called. The appellant in fact called no other witnesses to testify on the August 29, 2017 continuation date, after a month of apparently unnecessary delay;
f. It would be speculative to attempt to determine when the trial judge could have delivered his decision on the trial if evidence and submissions had been completed on August 1, 2017, when the trial was supposed to have finished, and perhaps could have finished;
g. The actual trial evidence was completed in less than three days;
h. Based on the actual trial, three days in January 2017 should have sufficed for the evidence and submissions. Reasons would likely have been given long in advance of November 27, 2017.
[34] In his Reasons on the s. 11(b) application, the trial judge focused on three available days in January 2017, but should have determined that the entire week was appropriate for consideration. The Jordan s. 11(b) regime does not concern itself with laying blame. Rather, it looks to availability. Under the Jordan framework, defence delay that gets subtracted from total delay is delay that results "if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence": Jordan, at para. 64. While it was not the fault of Counsel that he was unavailable due to prior professional commitments on January 18 and 19, 2017, his unavailability on those dates figures in the calculation of defence delay: R v. Albinowski, 2018 ONCA 1084, at paras. 28-33. The trial evidence and submissions, at least, could have been completed in January 2017.
[35] Most importantly, however, under the Jordan regime inconvenience to accused and witnesses is not sufficient justification to refuse earlier trial dates in favour of later dates. Rather, such refusal is an indication that the defence is not ready to proceed on the offered date, because of a choice freely made. Such a calculation may represent consideration for the personal lives of accused and witnesses, but it disentitles the defence from advancing the resulting delay as "unreasonable" in the quest for a remedy for the breach of the s. 11(b) Charter right.
[36] The delay that resulted from the appellant's refusal of the January 2017 trial dates was, in the final analysis, more than 7 months (January 20, 2017 to August 29, 2017). That period of delay, under the Jordan regime, must be deducted from total delay. While it appears likely that the total period of delay would have been far less than 22.5 months if the matter had proceeded in January 2017, it would be speculation to determine what the total delay would have been. Accordingly, the deduction of seven months of defence-caused delay from 22.5 months yields a net delay of 15.5 months. This period of delay is nevertheless below the Jordan ceiling.
[37] As to a stay in circumstances where the delay lies below the Jordan ceiling, the trial judge found that it would be hard for the appellant to argue that his Counsel "took all meaningful steps which demonstrated a sustained effort to expedite the proceedings" in this case, given his rejection of the January 2017 trial dates. Such a finding was open to the trial judge on the evidence before him, and the unnecessary delay in the trial by the defence from August 1, 2017 to August 29, 2017 only solidifies this point. Such a finding disentitles the appellant to s. 11(b) relief for delay below the Jordan ceiling
[38] This ground of appeal fails.
ISSUE 2: Consent
[39] The appellant asserts that the trial judge erred in finding that any assault took place, given reliability issues concerning the complainant's evidence. The appellant asserts that although the complainant believed that she did not consent, she could not recall events prior to the alleged assault, so as to conclusively affirm that she did not consent at some time preceding intercourse.
The law
[40] For a finding of guilt to the charge of sexual assault, the Crown must prove, beyond a reasonable doubt: a direct or indirect application of force to another person, of a sexual nature, in the absence of consent. As to mens rea, the accused need only intend to do the touching, as it is a general intent offence: Criminal Code, ss. 265(1) and (2), 271; R. v. Ewanchuk, [1999] 1 S.C.R. 330, at paras. 25, 41; R. v. Chase, [1987] 2 S.C.R. 293, at para. 12.
[41] For there to be consent to a sexual act, a complainant must provide actual active consent to the sexual activity that is taking place. An unconscious or sleeping complainant cannot offer consent at the time of the act, and consent given in advance of an act to take place during unconsciousness is not effective: R. v. J.A., 2011 SCC 28, at para. 66.
Analysis
[42] This issue relates to a matter of fact. The complainant's recollection, though at points incomplete, particularly on tangential detail, was certainly clear on one essential point: "when I woke up there was a guy inside of me". The trial judge found, on the evidence in the case, that the appellant "was placed not only in the room, but also in the bed in which the complainant slept and was sexually assaulted" [emphasis added]. The trial judge was entitled to find, and did find, that the complainant was asleep when the application of sexual force commenced.
[43] This ground of appeal fails.
ISSUE 3: Proof of identity
[44] The appellant argues that there was insufficient evidence to establish him as the perpetrator of the sexual assault. The appellant submits that "eye witness" evidence was not sufficient to support conviction, and that forensic evidence of DNA and continuity of samples of bodily substances was inadmissible or completely absent.
[45] This issue turns in large part on the admissibility of Exhibit 10 at trial, pages of notes perhaps made by the nurse at the rape kit examination, and purportedly tendered at trial as business records.
The law
[46] Business records can be entered as evidence in a criminal proceeding either at common law, or pursuant to s. 30 of the Canada Evidence Act ("CEA").
[47] For admissibility under s. 30 of the CEA, the record must have been made in "the usual and ordinary course of business", and must be otherwise admissible (s. 30(1)). Admissibility requires at least seven days' notice to the other party (s. 30(7)).
[48] Common law admissibility is specifically provided for pursuant to CEA s. 30(11)(b). Admissibility at common law requires that a record be authenticated as containing an original entry, made contemporaneously, in the routine of business by a recorder who has a duty to make the record, and who had no motive to misrepresent: R. v. Monkhouse, 1987 ABCA 227, [1987] A.J. No. 1031 (C.A.), at 4 (QL). This rule was adapted from that set out for nursing notes in Ares v. Venner (1970) 14 D.L.R. (3d) 4 (S.C.C.), at 16:
Hospital records, including nurses' notes, made contemporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the record or entry or record should be received in evidence as prima facie proof of the facts stated therein.
Analysis
[49] At paragraph 36 of its Factum, the respondent appropriately concedes that "the Crown did not sufficiently authenticate the documents contained in Exhibit 10", and that therefore, that Exhibit was "not properly admitted into evidence and should not have been relied upon in the Trial Judge's Reasons." At the trial of this matter, it was only Exhibit 10 that set out information crucial to the identification of samples of bodily substances taken from the person of the complainant.
[50] The Crown at trial adduced no evidence regarding the rape kit examination of the complainant by the nurse or by anyone else, the taking of samples of bodily substances from the person of the complainant, the preparation of samples of bodily substances, the packaging of samples, or the identification of samples. The officer who collected the rape kit from Sudbury was not called as a witness, and Cst. Coultis could offer nothing but inadmissible hearsay about how the kit came to Gore Bay from Sudbury, the accuracy of which was anyway called into question by a note in Exhibit 10 itself. Mr. Bissonnette evidently knew of the origin of bodily substances from the person of the complainant only by inadmissible hearsay as well.
[51] No evidence was adduced at trial to authenticate Exhibit 10 under the CEA s. 30 regime or at common law. Rather, Exhibit 10 was simply offered into evidence by the Crown at trial "under the authority of Ares v. Venner", without any further offering of proof to establish the Exhibit as a business record.
[52] In his Reasons for Judgment, the trial judge observed that:
a. the report from the CFS from June 11, 2015 excluded the two males from the other bed in the bedroom where the sexual assault took place as contributors of the male DNA "located on the complainant's breasts and lips";
b. the report from the CFS from December 4, 2015 could not exclude the accused as the donor of the DNA "on the complainant's breasts and lips";
c. a "sexual assault kit" examination of the complainant on the day following the sexual assault was used to assist in determining the identity of the assailant;
d. Cst. Coultis stated that Cst. Smith had picked up the kit from Sudbury, as Cst. Smith had been on training in Sudbury.
e. The kit was opened at the police detachment in Gore Bay and the contents sent on to the CFS.
[53] Essential findings concerning the DNA evidence made by the trial judge are unsustainable:
a. The actual location of origin of the bodily substances that Mr. Bissonnette identifies as coming from the breasts and lip of the complainant is completely unknown on admissible evidence. Mr. Bissonnette did not himself take the samples, and was not present at their collection. The trial judge erred in using the CFS results in any way to determine these facts. Indeed, there is scarcely any evidence to indicate who did take the samples, except unsuitable evidence from the complainant that she was examined by a nurse named "Barb";
b. There is nothing to demonstrate the relevance of evidence that the appellant could not be excluded as the donor of DNA that that was sent to the CFS by police and that the other two males were excluded as donors. There was no admissible evidence that the evidentiary DNA, to which the appellant's DNA profiles and those of the two other young men were compared, came from the body of the complainant;
c. Cst. Coultis' knowledge of how the sexual assault kit got from Sudbury to Gore Bay is obviously based on hearsay, perhaps deriving from Cst. Smith, and this evidence is therefore inadmissible. No evidence accounts for the identification or transfer of the rape kit used in the examination of the complainant to the investigators in this case.
[54] The trial judge crafted a chain of continuity using the reasoning in R. v. Clancy, [2009] O.J. No. 1585 (Sup. Ct.), in which the trial judge found that there were sufficient indications of necessity and reliability to justify the reception at a 2009 trial of samples of crime-scene DNA from the person of a complainant in a 1988 allegation. This was so even though many witnesses had disappeared and there were allegedly gaps with respect to the maintenance of the crime-scene DNA in the intervening years until the sample was tested in 2002 or 2003. It bears noting that in Clancy, the taker of the swab sample of crime-scene bodily substance was known, as was the location on the body of the complainant from which the sample was taken, and the manner of packaging of the original sample.
[55] Based on Clancy, the trial judge stated:
I do not find that there exist any real issues with respect to the continuity of [the sexual assault kit] evidence in the present matter. I find it is necessary to admit the forensic evidence in question and that there are the required indicia of necessity and reliability surrounding the evidence to warrant its admission into evidence.
The trial judge found reliability in that the evidence was obtained in the course of business by personnel of the hospital sexual assault unit. He found that the evidence was treated "in a secure manner first by hospital staff and then by the police officers desirous of obtaining it for evidentiary purposes".
[56] Unfortunately, the Clancy decision does not assist in making determinations about the crime-scene DNA in this case. In the case before this court, there is simply no evidence to show reliability: about the taking of samples of bodily substances, the means of collection, the location of the bodily substances, the manner of storage of samples, or the means by which a secure chain of continuity could be commenced, let alone carried through even to the Gore Bay detachment. No details in evidence justify a finding that hospital staff or police treated the samples in a secure manner. There is no indication that it was necessary to rely upon the Exhibit 10 documents or hearsay evidence rather than to produce as witnesses nurse "Barb" or Cst. Smith. No evidence was offered to explain the absence of these witnesses.
[57] The Crown on appeal submits that this failure of proof may derive from a misunderstanding about a concession made at the judicial pre-trial in this matter, in which the defence conceded that the CFS reports would not be contested. This explanation, though possible, is mere speculation. Much clearer was Counsel's requirement for "proof" when the trial Crown filed the Exhibit 10 documents. That was the time, if any, for the Crown to explain that it had misunderstood the defence pre-trial concession, and to seek to adjourn the matter to allow for presentation of the necessary proof or to argue alternative grounds for admissibility of the documents under the principled exception to the hearsay rule.
[58] In this case, there can be no doubt that the trial judge considered the DNA evidence to be important, and relied on it in convicting the appellant. The trial judge puts the importance of the DNA evidence this way:
The inability of the complainant in this case to identify her aggressor would, without the forensic evidence tendered by the Crown, may well have led – may well have led to his acquittal.
[59] It cannot be said that but for the error in relying on the DNA evidence, the verdict must necessarily have been the same. The trial judge evidently felt that the DNA evidence was an important component in the proof of identity of the assailant in this case. The conviction must therefore be quashed.
[60] The question remains whether the error by the trial judge should result in an acquittal or in a new trial. If the forensic DNA evidence were the totality of the identification evidence in the case, then the verdict would be unreasonable, and an acquittal must result. However, where it cannot be said that there is no evidence to go to the trier of fact, the proper disposition is to quash the conviction and order a new trial, pursuant to s. 686(2)(b) of the Criminal Code: R. v. Woodward (1975), 23 C.C.C. (2d) 508 (Ont. C.A.), at para. 6 (QL).
[61] The trial judge's wording makes it clear that in his view there was much evidence besides the DNA to establish identity. Indeed, there was significant evidence of identification before the court, some of which the trial judge went on to summarize. I note the following evidence from the trial:
a. When the two males in the other bed in the room in which the complainant had allegedly been assaulted woke up the morning after the assault, they saw the appellant in the bed that had been occupied by the complainant. Those two males also testified and denied doing the sexual assault;
b. In her statement to police, which formed part of her evidence on the case, the complainant described going back into the bedroom later in the morning to collect her cell phone from beside the bed, at which point the accused grabbed her buttocks. Such evidence not only itself could constitute a sexual assault, but also suggests a degree of familiarity that calls for consideration on the issue of the identity of the complainant's earlier assailant, given her otherwise limited intentional prior interactions with the appellant;
c. In a text conversation the day after the alleged sexual assault, the appellant admitted to the complainant that he remembered getting into the same bed in which the complainant was sleeping, although he claimed that that was "the last thing I remeber [sic]";
d. There was evidence that the appellant also apologized to the complainant the day following the assault, in a separate text message.
[62] While the significance and weight to be accorded to these pieces of evidence can be debated, there remains substantial evidence relating to identity on which a trier of fact could have made a finding of guilt. It cannot be said that there would have been no evidence to go before a trier of fact on the issue of identity, even in the absence of the DNA evidence. Accordingly, a new trial must be ordered.
Conclusion
[63] The conviction is quashed, and a new trial is ordered before a different judge of the Ontario Court of Justice.
[64] The delay to this point in this proceeding has been considered under the rubric of s. 11(b) of the Charter or not advanced for consideration in the court below, and so is accounted for. Nevertheless, I order that the appellant's re-trial be expedited, given the amount of time that has now passed, and the appellant's concern over his s. 11(b) right. Crown and defence may wish to consider trial in jurisdictions outside of the District of Manitoulin, if that could assist in expediting the proceeding.
Released: June 3, 2019
Justice A.D. Kurke
COURT FILE NO.: CR18-0011-00AP DATE: 2019-06-03
HER MAJESTY THE QUEEN Respondent on Conviction Appeal/ Appellant on Sentence Appeal
– and –
Wyatt Kennedy Appellant on Conviction Appeal/ Respondent on Sentence Appeal
Released: June 3, 2019