Court File and Parties

COURT FILE NO.: CR-19-00000004-00MO NJ DATE: 20200303

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – WAYNE BEAU McALLISTER and DAVID LAWRENCE STEWART Applicants

Counsel: Richard G. Floyd, for the Crown Stephen Zap, for Wayne Beau McAllister Douglas Caldwell, for David Lawrence Stewart

HEARD at Napanee: 13 January 2020

An order restricting publication in this proceeding has been made pursuant to section 486.4(1) of the Criminal Code of Canada.

mew j.

Reasons for Decision

(Application for Stay of Proceedings)

[1] Between 2002 and 2004, the applicants were investigated by the Ontario Provincial Police in connection with complaints of sexual abuse made in respect of four children (three of them members of the same family). Charges were not laid at that time. In the case of one of the children, his mother decided that for the mental health of her son, it would be best not to pursue charges. With respect to the three children who are members of the same family, it was concluded that there had been no clear disclosure and that there were contradictory statements pertaining to the alleged wrongdoing of the applicants.

[2] During the course of the investigations, the applicants were interviewed and had offered to turn themselves in if warrants for their arrest were issued. They both consulted lawyers and were advised not to provide polygraph tests that had been requested by the police.

[3] The OPP’s files were closed in 2002 and 2003 respectively. No further investigation was done until 2017, when the police approached the three related individuals from the 2002 investigation as part of their investigation of a complaint that had been made in 2017 by another individual, CG, in respect of incidents said to have occurred between 2011 and 2013, solely involving Mr. McAllister. At that time, the three related individuals, now all adults, disclosed significantly more detailed and serious allegations of abuse. Police then contacted the complainant RM. RM and the three siblings subsequently each gave a statement to police in February 2018. As a result, the applicants were arrested and charged in April 2018.

[4] The applicants seek a stay of the charges against them on the grounds that there has been a violation of their rights under sections 7, 11(b) and 11(d) of the Canadian Charter of Rights and Freedoms and on the basis that the pre-charge delay amounts to an abuse of process.

[5] At common law, the court has inherent jurisdiction to protect itself against abuses of process. As Lord Parker C.J. said, in Mills v. Cooper, [1967] 2 Q.B. 459 (EWCA) at p. 467:

… every court has undoubtedly a right in its discretion to decline to hear proceedings on the ground that they are oppressive and an abuse of the process of the court.

[6] To all intents and purposes, the principles of fundamental justice enunciated in the Charter “both reflect and accommodate the nature of the common law doctrine of abuse of process”: per L’Heureux-Dubé J. in R. v. Connor, [1995] 4 S.C.R. 411 at para. 71.

[7] Pre-charge delays can amount to an abuse of process. In Mills v. The Queen, [1986] 1 S.C.R. 863, Lamer J. (dissenting in the result but not on the point cited) stated, at para. 231:

Pre‑charge delay is relevant under ss. 7 and 11 (d) because it is not the length of the delay which matters but rather the effect of that delay upon the fairness of the trial. Pre‑charge delay is as relevant as any other form of pre‑charge or post‑charge conduct which has a bearing upon the fairness of the trial. In other words, pre‑charge delay is relevant to those interests which are protected by the right to a fair trial whereas it is irrelevant to those which are protected by s. 11 (b). Similarly, pre‑charge delay may be a relevant consideration under the doctrine of abuse of process in the same manner as any other conduct by the police or the Crown which may be held to constitute an abuse of process.

[8] Notwithstanding this passage, McIntyre J. for the majority in R. v. Kalanj, [1989] 1 S.C.R. 1594 stated, at pp. 609-10:

The length of the pre-information or investigatory period is wholly unpredictable. No reasonable assessment of what is, or is not, a reasonable time can be readily made. Circumstances will differ from case to case and much information gathered in an investigation must, by its very nature, be confidential. A court will rarely, if ever, be able to fix in any realistic manner a time limit for the investigation of a given offence. It is notable that the law -- save for some limited statutory exceptions -- has never recognized a time limitation for the institution of criminal proceedings. Where, however, the investigation reveals evidence which would justify the swearing of an information, then for the first time the assessment of a reasonable period for the conclusion of the matter by trial becomes possible. It is for that reason that s. 11 limits its operation to the post-information period. Prior to the charge, the rights of the accused are protected by general law and guaranteed by ss. 7, 8, 9 and 10 of the Charter.

[9] Relying on this passage, the applicants submit that the clock for the s. 11(b) analysis begins at the point in time at which sufficient evidence had been revealed by the investigation to justify the swearing of an information.

[10] In O’Connor (at para. 73), two categories of abuse of process under s. 7 of the Charter were identified:

a. Police or prosecutorial conduct affecting the fairness of the trial (the “rights-based category”); and b. Police or prosecutorial conduct that contravenes fundamental notions of justice and thus, undermines the integrity of the judicial process (the “residual category”).

[11] There is no assertion in this case of prosecutorial misconduct. Although actual misconduct or improper motive on the part of the Crown “are but two of many factors to be taken into account” when a court is called upon to consider whether there has been an abuse of process (R. v. Keyowski, [1988] 1 S.C.R. 657, at para. 3), the applicants wisely focused their submissions on the residual category of abuse of process.

[12] They say, in a nutshell, that after an investigation which was sufficiently advanced, that they had retained lawyers and indicated their willingness to surrender into custody, but then having been advised, as long ago as 2003 and 2004 that they would not be charged, it would, to quote R. v. Conway, [1989] 1 S.C.R. 1659, at para. 22, amount to circumstances “where the afront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases” for the charges now laid against them to be permitted to go forward.

[13] Relying on Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at para. 122, the applicants submit that the following factors should be considered in assessing whether there has been inordinate delay amounting to an abuse of process:

a. The nature of the case; b. The complexity and volume of the case; c. The facts and issues; d. The purpose and nature of the proceedings; e. The delay that is solely attributable to state authorities; f. Whether the applicant i. contributed to the delay; or ii. wafted the delay; and g. Any other circumstances of the case.

[14] With respect to the charge involving RM, there was a thorough investigation in 2002 and 2003. Although the police disclosure recorded that the investigation file would be held and the videotapes archived for five years, should the need arise to pull them out for further investigation, a definitive determination not to proceed had, in fact, been made, given the position taken by the complainant’s mother, that “it would be best not to pursue charges”.

[15] With respect to the investigation involving the three siblings, as previously indicated, they had given inconsistent statements. A Crown Attorney was then consulted, and a decision made to re-interview the children, although it was felt that with the previous inconsistent statements, there would be no reasonable prospect of conviction. There were then further consultations with representatives of Children’s Aid Societies which had had involvement with the children. Ultimately, at the end of April 2003, the police occurrence report indicates that the children were going to receive further counselling and that the Children’s Aid worker would notify the investigating officer when the counselling had been completed, suggesting around six weeks. The record indicates that “interviews maybe conducted [with the children] after they have received counselling”. There was not, however, any follow-up and the investigation appears to have terminated at that time.

[16] The applicants argue that it could not have reasonably been foreseen that the investigation relating to RM would be re-opened and that they had every reason to believe that the investigation relating to the three siblings had also been terminated.

[17] In Keyowski, the Supreme Court held that it was not an abuse of process for the appellant to be ordered to stand trial for a third time on a charge of criminal negligence causing death, where the first two trials had ended with the jury failing to agree on a verdict. Wilson J. found that the appellant had failed to demonstrate that his was one of those “clearest of cases” which would justify a stay. While a third trial might stretch the limits of the community’s sense of fair play, having regard to the seriousness of the charge in particular, the court concluded that the administration of justice was best served by allowing the third trial to proceed.

[18] In R. v. Piccirilli, 2014 SCC 16, [2014] 1 SCR 309, at para. 32, the Supreme Court articulated three requirements of the test to be used to determine whether a stay of proceedings is warranted:

1. There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that "will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome" ([R. v. Regan, 2002 SCC 12, [2002] 1 SCR 297], at para. 54);
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 is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interest that society has in having a final decision on the merits" (ibid., at para. 57).

[19] When the residual category is invoked, as in the present case, “the question is whether the state is engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the fact of that conduct would be harmful to the integrity of the justice system”: Piccirilli at para. 35.

[20] Piccirilli, referring to Keyowski, continues, at para. 37, that circumstances may arise where the integrity of the justice system is implicated in the absence of misconduct.

[21] The second stage of the test requires consideration of whether an alternate remedy, short of a stay of proceedings, will adequately disassociate the justice system from the impugned state conduct going forward: Piccirilli at para. 39.

[22] Finally, with respect to the balancing of interests at the third stage, the court must consider such things as the nature and seriousness of the impugned conduct, whether the conduct is isolated or reflects a systemic and ongoing problem, the circumstances of the accused, the charges that he or she faces, and the interests of society in having the charges disposed of on their merits: Piccirilli at para. 41.

[23] The applicants say that theirs are not complicated cases. They are “he said, (s)he said” cases. The applicants argue that they have contributed nothing to the delay and have cooperated (although I observe that they declined, as was their right, to undergo polygraph tests).

[24] From the perspective of the applicants, they would not have been formally advised that the police had decided not to prosecute. Rather, the cases fell into abeyance. The applicants argue that not granting a stay in the present case could encourage a practice of delaying the prosecution of cases involving young complainants until such time as the complainants are better able to testify. What might be lost in contemporaneity could be more than made up for by the more articulate testimony of an older witness, to the prejudice of the applicants.

[25] In R. v. Campbell, 2017 ONSC 3442, an industrial accident occurred on 21 June 2012 resulting in the death of an individual. An investigation, conducted concurrently by the Minister of Labour and the Ontario Provincial Police, culminated in the completion of an engineering report on 26 October 2012. On 6 May 2013, an information for Ministry of Labour charges was sworn to which the applicant pleaded guilty on 17 April 2014. He received a fine of $3,500. On 2 May 2014, the lead OPP investigator spoke with an assistant Crown Attorney regarding possible criminal charges. On 12 September 2014, the applicant was charged with criminal negligence causing death. The total pre-charge delay was calculated to be 26 months and 23 days.

[26] Del Frate J. concluded that the evidence made clear that both the Ministry of Labour and the police had concluded within three days of the incident that they had reasonable and probable grounds to lay charges. The Crown explained the delay in commencing criminal proceedings on the basis that the Ministry of Labour initially had carriage of the investigation and the Crown was waiting to see what would happen. Once the applicant had pleaded guilty to the Ministry of Labour charge, it was appropriate for the Crown to lay the criminal negligence charge. The Crown argued that the applicant had shown no evidence of prejudice that which any other individual facing criminal charges would be expected to experience. Del Frate J. disagreed, stating, at para. 44:

In my view, the applicant has been prejudiced by the pre-charge delay in laying the criminal negligence charge. Not only is there the additional turmoil associated with prolonging this matter, but one has to consider the financial cost of defending two separate charges arising from the same facts. Some five years later, he still does not have any finality to this incident.

[27] Del Frate J. ultimately found that the laying of criminal charges, after the applicant had pleaded to the provincial offences, constituted a breach of the sense of fair play, an act which offended the community, continuing that this was so “especially when one considers that this was not a detailed or sophisticated investigation”.

[28] While I agree with the applicants in this case that Campbell represents a good example of where pre-charge delay can amount to prejudice, the considerations of “fair play” in that case are very different to the present case.

[29] The record shows that the investigations undertaken by the police in 2002-2003 were in good faith, and resulted in a conclusion that charges should not be laid because evidence to support those charges was either unreliable (in the case of the three siblings) or unavailable (in the case of RM).

[30] It does appear that in January 2014, for reasons that are not readily apparent from the record, that a Kingston Police officer, who was aware of previous involvement between the OPP and Mr. Stewart, had videotapes of interviews undertaken in 2002 digitised so that they could be saved in their current condition to prevent degradation. At around the same time, an officer also spoke to RM by telephone and talked to him about his case. RM told the officer he would like to think about whether he wanted the case reopened and would get back to her the following day. A subsequent notation by the officer indicated that RM had not responded despite the passage of two weeks since her telephone call with him adding “this case will not be reopened at this time”.

[31] As already indicated, it was only after an alleged sexual assault by Wayne McAllister was reported in September 2017, that an interest in the 2002-2003 incidents was reawakened.

[32] I cannot agree with the submissions made by the applicants that the charges now faced by the applicants are based on evidence which was available in 2002 and 2003. Without knowing exactly what evidence was obtained from the complainants in 2018, I accept the submission made by the Crown that it is new evidence.

[33] Furthermore, there is nothing in the record that would suggest intentional delay on the part of the prosecution. Indeed, but for the complaint made in 2017 about Mr. McAllister (which does not form the basis of any charge in this proceeding), the present charges may never have been laid.

[34] Unlike typical “historic” sexual abuse cases, where there has been no investigation prior to a disclosure being made, sometimes many years after the incidents giving rise to the disclosure and subsequent charges, in the present case, there was, of course, a timely disclosure and investigation. But there was not a sufficient evidentiary basis to lay charges until further statements were forthcoming in 2018. And there was no state “misconduct”, using that term in its broadest meaning, which influenced the delay.

[35] As the court in Piccirilli observed, when the residual category is invoked, the balancing stage takes on added importance. The more egregious the state conduct, the greater the need for the court to disassociate itself from it: Piccirilli at para. 41.

[36] As Stevenson J. observed in R. v. L. (W.K.), [1991] 1 S.C.R. 1091, at para. 22, “delay in charging and prosecuting an individual cannot, without more, justify staying the proceedings as an abuse of process”. He goes on to quote Chief Justice Laskin in Rourke v. The Queen, [1978] 1 S.C.R. 1021, at pp. 1040-41:

Subject to such controls as are prescribed by the Criminal Code, prosecutions initiated a lengthy period after the alleged commission of an offence must be left to take their course and to be dealt with by the Court on the evidence, which judges are entitled to weigh for cogency as well as credibility. The Court can call for an explanation of any untoward delay in prosecution and may be in a position, accordingly, to assess the weight of some of the evidence.

[37] Although Rourke was a pre-Charter case, Stevenson J. concluded, consistent with a number of the other authorities that have already been canvassed, that the Charter does not insulate accused persons from prosecution solely on the basis of the time that has passed between the commission of the offence and the laying of the charge.

[38] In R. v. Hunt, 2016 NLCA 61, Hoegg J.A., commenting on a ten-year investigation leading to charges of criminal fraud, observed that “determining that investigatory or pre-charge delay constitutes abuse of process requires more than conclusive statements that the pre-charge delay was egregious and that the Respondent suffered an exacerbation of personal prejudice due to the passage of time”: Hunt, at para. 84. She went on to observe that there needed to be oppressive action on the part of the state “so apparent as to permit an objective evaluation of it, and that it involve an element of injustice or unfairness, or at least result in injustice or unfairness to an accused”: Hunt, at para. 95 (although Hoegg J.A. was dissenting in the Newfoundland Court of Appeal, a subsequent appeal to the Supreme Court overturned the decision of the majority, substantially for the dissenting reasons given by Hoegg J.A.: 2017 SCC 25, [2017] 1 S.C.R. 476).

[39] As Pomerance J. observed in R. v. Wuschenny, 2018 ONSC 4169, at para. 1:

Cases that go cold can be revived. Charges may be laid many years after the alleged offence, just as offenders may be exonerated years after a wrongful conviction.

[40] Wuschenny involved an investigation conducted in the early 1990s into an alleged sexual assault. After consultation with a Crown Attorney, no charges were laid. It was not until 2015 that police re-examined the case file. At that time, they decided to send the exhibits back to the Centre of Forensic Sciences for forensic analysis. One of those exhibits was a t-shirt. Semen containing the DNA profile of the accused was detected on the t-shirt. Although certain exhibits had been sent to the Centre of Forensic Sciences during the original investigation, for some unexplained reason, the t-shirt had not been. The accused argued that the pre-charge delay of over 25 years violated his rights under sections 7 and 11(d) of the Charter.

[41] As in the present case, the accused in Wuschenny could not identify evidence that it would have called, and that would have been available, if the charge had been laid in the 1990s. Other observations which Pomerance J. made are also apposite in the present case. Although there would likely be some memory loss associated with the time that had elapsed between the incidents complained of and the laying of charges, the accused in Wuschenny, as with the applicants in the present case, would have had reason, when first informed about the investigation, to think about his whereabouts and other circumstances relating to the offence. The accused in Wuschenny, and the applicants in the present case, were told that they were being investigated. The applicants in this case assert that they cooperated with that investigation. Pomerance J. makes the statement, equally applicable to this case, at para. 58 of Wuschenny:

Whatever the state of his memory, the accused is able to challenge the case for the Crown through cross-examination of witnesses. If anything, the passage of time can inure to the benefit of the accused, given the Crown's duty to prove the crime.

[42] Even where a party under investigation has been notified that an investigation has been closed, if such notification is not made in bad faith and the decision to re-investigate was not arbitrary or irrational or unreasonable, there will be no abuse of process: R. v. R.G., 2018 ONSC 130 at paras. 37-39.

[43] The applicants say that no remedy short of a stay of proceedings would be appropriate in the present case. I accept the logic of that position. However, as will have become apparent, I find no abuse of process. The applicants’ right to make full answer and defence is, of course, paramount, but understood in the light of other principles of fundamental justice which may involve interests and perspectives beyond those of the applicants, I am satisfied that the interests of justice require that these charges proceed to trial to be heard on their merits.

[44] The applications are therefore dismissed.

Graeme Mew J.

Released: 03 March 2020