COURT FILE NO.: CR-18-0049-00
DATE: 2019-01-16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
E. Delaney, for the Crown (Applicant)
Applicant
- and -
S.T.
R. Karlstedt, for the Accused (Respondent)
Accused (Respondent)
HEARD: January 16, 2019, at Thunder Bay, Ontario
Mr. Justice F.B. Fitzpatrick
Decision On Application
[1] The Crown brings a discreditable conduct application. It seeks to introduce various pieces of evidence obtained in the course of a search, with which the defence takes no exception, of premises occupied by the accused. The Crown admits the evidence sought to be introduced is presumptively inadmissible as it is similar fact evidence. The evidence comes from a non-functioning Acer computer that was found on the premises.
[2] To be clear, in dealing with this application I am not dealing with the evidence found on what the Crown has characterized as the "Residence SD card", despite the fact the Crown has included a description of this evidence in its application. It is clear to me that the Crown seeks to rely on this evidence as having been included in that described in the indictment before the court.
[3] In any event, with respect to the evidence that is included in this application, which is set out in paragraphs 3(i)(ii)(iii) and (iv) of the Crown addendum served January 14, 2019, the Crown relies on settled law that provides exceptions to the presumptive exclusionary rule and was articulated by the Supreme Court of Canada in the R v. Handy (2002), 2002 SCC 56, 164 CCC(3d) 481 and R v. Shearing (2002), 165 CC (3d) 225 decisions.
[4] A preliminary issue has arisen as the Crown admits it has late served this application. Rule 30.04(1) of the Superior Court of Justice Rules of Criminal Practice require the Crown to bring applications of this sort thirty days prior to trial, unless leave of the Court is obtained. Also, the Crown admits the initial notice of application was not fully compliant with Rule 30.05(1)(d) as it did not contain sufficient detail to show the essential features of the evidence proposed for admission. The Crown has sought to remedy this deficiency by serving an Addendum, dated January 14, 2019, the originally scheduled opening day of trial.
[5] Mr. S.T. opposes the application. He submits it should be dismissed now, as the "extensive lateness" which he describes has not allowed him to properly prepare a response to the application, and now that the trial has commenced, he will be prejudiced if forced to respond to this evidence.
[6] The Crown candidly advises that the lateness of the application can be understood in the context of how this matter has proceeded to date. Up until January 2, 2019, this matter was to proceed before a jury. On January 2, 2019, the accused re-elected to be tried by judge alone. The trial date of January 14, 2019 was maintained. The Crown submits this event significantly changed the trial strategy of the Crown.
[7] The Crown had not intended to put the discreditable fact evidence before the jury. Crown counsel explained that it made a tactical decision that such an application would fail if brought pre-trial in the face of the trier of fact being a jury, as a judge would see that this evidence as being far too prejudicial being in the main related to child pornography, to outweigh its probative value. The Crown submits a judge alone trial creates a different tactical environment and relies on the statement of Borins J.A. in R. v. B (RT), 2009 ONCA 177, 2009 O.J. No. 751 (Ont. C.A.) where he said:
As trial judges are presumed to know the law and the proper and improper uses of evidence, it seems counterintuitive that similar fact evidence could be excluded in a non-jury trial based on the trial judge's determination that the evidence would confuse him or induce him to put more weight on it than is logically justified.
[8] The Crown submits had the reelection been made sooner, it could have brought this application well within the time permitted by the Rules. However, things have not turned out that way.
[9] While I appreciate the Crown's dilemma, I am of the view that because of the manner in which this case has unfolded, it would be unfair for the accused to be required to proceed in the face of this late application by the Crown. On the face of the Crown's application, as amended, I am concerned that the prejudicial nature of the proposed evidence will ultimately completely outweigh the probative value of the evidence in any event. Also, as the evidence came from what is admitted to be an inoperative computer, I can see the inquiry about this evidence consuming a great deal of time, and, in any event, being such that it lacks a connectedness to the accused, sufficient to allow the evidence obtained from this computer to be admitted.
[10] I agree with the submission of the Crown that the criminal rules are made to be servants and not masters. Decisions were made by the Crown in this case that were legitimate in context. The context has changed. This is due to a decision of the accused. However, the accused also has the right to be tried in a reasonable time frame and to know in advance of trial the case they have to meet. The parties have alluded to Jordan issues in the trial management process. Crown counsel fairly conceded that if leave is granted to hear this application, it would have a difficult time opposing a request for an adjournment of the trial by the defence. An adjournment of the trial for an application that may or may not ultimately succeed will have an unintended consequence of trial delay.
[11] I am also concerned about the issues of fairness to the accused in knowing the case he has to meet. Despite the reelection, up to January 2, 2019, Mr. S.T. was not considering having to deal with this discreditable conduct application and the evidence the Crown now seeks leave to introduce.
[12] Balancing the various interests of the parties, I exercise my discretion not to grant leave to extend the time for the bringing of this application. The application is dismissed as it relates to the evidence set out at paragraphs 3(i)(ii)(iii) and (iv) of the Crown addendum served January 14, 2019.
[13] I want to make it clear that the dismissal of this application will have no bearing on any future decision that I may make with respect to any evidence the Crown may seek to introduce by way of reply or cross-examination if it has to meet evidence placed before the Court on the part of the accused.
"original signed by" The Hon. Mr. Justice F.B. Fitzpatrick
Released: January 16, 2019
COURT FILE NO.: CR-18-0049-00
DATE: 2019-01-16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and -
S.T.
Accused (Respondent)
DECISION ON APPLICATION
Fitzpatrick J.
Released: January 16, 2019
/sab