COURT FILE NO.: CR-19-0069-000
DATE: 2019-10-11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
A. Sadler, for the Crown (Respondent)
Crown (Respondent)
- and -
Melissa Casson
N. McCartney, for the Accused (Applicant)
Accused (Applicant)
HEARD: October 9, 2019 at Thunder Bay, Ontario
Mr. Justice W. D. Newton
Reasons on Application
Overview
[1] Ms. Casson is charged with defrauding the complainant and using forged documents contrary to ss. 380(1)(a) and 368(1)(a) of the Criminal Code.
[2] She brings this application for a stay of proceedings on the grounds that the cumulative effect of the Crown’s conduct in arranging two preliminary inquiries that did not proceed and in preferring the indictment constitute an abuse of process.
The Facts
[3] The following chronology taken from the accused’s factum is not disputed.
[4] Ms. Casson was charged on February 11, 2017. Counsel was retained by July 2017. Between July 2017 and May 2018, disclosure was completed, and “extensive” resolution discussions were held. Ultimately, it was determined that “a contested proceeding was unavoidable”. Following a case management pretrial, a one-day preliminary inquiry was set for December 6, 2018.
[5] On November 13, 2018, the Crown sought and obtained an adjournment of the preliminary inquiry since a recently taken witness statement necessitated further investigation. It is not disputed that the expectation was that if the Crown intended to proceed with the charges that the preliminary inquiry would be rescheduled. On December 9, 2018, the complainant died. Further resolution discussions were held and, on April 17, 2019, the preliminary inquiry was set for November 14 and 15, 2019. Two days were set because the death of the complainant required a Crown application to introduce the complainant’s statement and since committal to trial was now a “live issue”. It is acknowledged, that on April 17, 2019, the Assistant Crown Attorney with carriage of the file informed counsel for Ms. Casson that the Crown was considering applying for a direct indictment.
[6] On June 12, 2019, the Crown exercised its power to prefer a direct indictment.
[7] The presumptive “Jordan date” was August 12, 2019. Counsel for Ms. Casson stated that there would be delay attributable to Ms. Casson. No evidence was led nor were submissions made with respect to the actual “Jordan date”.
Positions of the Parties
[8] Counsel for Ms. Casson argues, that these special circumstances, the change in position by the Crown and the loss of the opportunity to contest committal to trial, constitute an abuse of process and that a stay of proceedings is the only appropriate remedy.
[9] Counsel for the Crown argues that there is no unfairness caused by the Crown decisions in this case and that, even if the conduct did constitute an abuse of process, the appropriate remedy would be to order that a preliminary inquiry be held.
The Law
[10] Counsel for Ms. Casson acknowledged that the onus is upon her, on a balance of probabilities, to satisfy me that these circumstances amount to an abuse of process and that a stay of these proceedings is the appropriate remedy.
[11] Counsel also agree on the abuse of process doctrine:
… there is residual discretion in the trial judge to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community sense of fair play and decencies and to prevent the abuse of a court’s process by oppressive or vexatious proceedings. (See for example R. v. M. (R.). (2006) 2006 CanLII 32999 (ON SC), 83 O.R. (3d) 349 at para. 33.)
[12] In the context of prosecutorial conduct that constitute an abuse of process the Supreme Court of Canada has stated this: “abuse of process refers to Crown conduct that is egregious and seriously compromises trial fairness and/or the integrity of the justice system.” See R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167 at para. 50.
Analysis and Disposition
[13] I am not satisfied that there is any unfairness to Ms. Casson arising from the Crown’s decisions in this case.
[14] The decision to adjourn the first preliminary inquiry was a reasonable decision to make in the circumstances. Unfortunately, the death of the complainant meant that her evidence could not be tested at a preliminary inquiry. The Crown now has the task of convincing the trier of fact that the complainant’s statement should be admitted. That task is the same whether there was a preliminary inquiry or not. The Defence concedes that there is no right to a preliminary inquiry. The preferring of the indictment addresses the Jordan issue and gets the issue of the admissibility of the complainant’s statement directly before the trier of fact.
[15] Accordingly, there is no compromise of trial fairness, serious or otherwise, and the conduct of the Crown in this case is reasonable, not egregious. The application is dismissed.
“Original signed by”
The Hon. Mr. Justice W.D. Newton
Released: October 11, 2019
COURT FILE NO.: CR-19-0069-000
DATE: 2019-10-11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Crown (Respondent)
- and -
Melissa Casson
Accused (Applicant)
REASONS ON APPLICATION
Newton J.
Released: October 11, 2019
/lvp