COURT FILE NO.: CR-19-30000764

DATE: 20211202

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JS

Applicant

Sara MacDonald, for the Crown

Royland Moriah, for the Applicant

HEARD: November 30, 2021

Allen J.

REASONS FOR DECISION

(Application for an Adjournment)

PUBLICATION RESTRICTION NOTICE

An Order restricting publication in this proceeding was made pursuant to section 486.4 the Criminal Code. Any information that could identify the complainant and her mother shall not be published in any document, broadcast or transmission.

TEMPORARY SUSPENSION OF THE COURT

[1] This application was heard and decided during the COVID-19 pandemic under the direction of the Chief Justice of the Ontario Superior Court of Justice’s decision to suspend regular court operations, effective March 16, 2020. It was decided that cases involving urgent matters that can be decided on written materials or on consent and not requiring a courtroom would be conducted by teleconference or videoconference. It has since been decided that some proceedings will be held in courtrooms as fully in-person proceedings while others would be held as hybrid proceedings with some participants attending in court and others remotely by Zoom video.

[2] The parties agreed to this trial and the herein application proceeding fully by videoconference. A registrar and court monitor were present to maintain the court record. The judge, witnesses and counsel attended remotely by videoconference. Witnesses testified under affirmations to tell the truth. Materials were delivered and filed with the court via the CaseLines platform and by email.

THE ALLEGATIONS

[3] JS, the Applicant, is before the court on two counts of sexual interference, two counts of invitation to sexual touching and two counts of sexual assault, contrary to sections 151, 152, and 271 of the Criminal Code. The complainant, AE, was 8 years of age in 2017 when the alleged offences occurred. At that time AE’s mother, CR, resided with AE and her 6-year-old son in a domestic relationship in a home with the Applicant.

[4] On the afternoon of December 15, 2017, the mother went to the basement of the home to lay down. The Applicant was on the main floor with AE and her brother. AE alleges that the Applicant took off her pants and underwear and sexually assaulted her by putting his finger into her vagina and licking her vagina. AE alleges that following the assault, the Applicant told her to leave which she did, putting on only her tights as she could not find her underwear. The mother came upstairs from the basement and found a pair of underwear on the floor. She did not know they were her daughter’s underwear.

[5] The further allegation is that in the evening of that day AE was in bed with her mother and the Applicant. AE was giving the Applicant a massage. When her mother realized AE was not wearing underwear, she got upset asking what was going on and told AE she should speak to her mother. AE asked her mother if she could write her a note which the mother agreed to. The written note, which AE handed to her mother, says, “J.’s trying to rape me :( .”

[6] The mother asked AE what she meant by the Applicant trying to rape her and AE replied that he licked her today which the mother confirmed meant he licked her vagina. AE disclosed further forms of sexual abuse, that he attempted to stick his penis in her. She told her mother it was “okay” because the Applicant assured her that she would not get pregnant because “he’s on the pill.”

[7] The mother confronted the Applicant and demanded he leave the home. The police were called that evening. AE told the police she did not disclose the sexual abuse sooner because she was afraid her mother would get angry.

PROCEDURAL BACKGROUND

[8] The chronology of procedural events that occurred before the application for an adjournment was brought is important to consider and is as follows:

• the alleged offences occurred between June 1, 2017 and December 15, 2017;

• the accused was arrested and charges laid on March 19, 2018;

• the preliminary hearing was held November 25 to 27, 2019;

• defence counsel inquired at the preliminary hearing about a prior allegation made by the complainant against a third party;

• defence counsel expressed he may bring an application for disclosure of the third party allegation;

• by early 2018 the statements by the complainant about the prior complaint were disclosed;

• a judicial pre-trial at the Superior Court was held on February 6, 2020;

• the pre-trial form states that Crown disclosure is complete.

• the matter was set down for a judge and jury trial for January 11, 2021;

• the trial was adjourned as no jury was available;

• the matter was rescheduled for November 29, 2021 as a judge and jury trial;

• on November 30, 2021, the accused re-elected a trial by judge alone; and

• on November 30, 2021, this court heard an application to adjourn the trial to obtain disclosure of the complainant’s allegation against the third party.

[9] On the application, the Applicant relied on the affidavit of a paralegal at his law firm attesting to the factors that form the background of the application. The Crown called AE’s mother, CR, as a witness who testified about the impact that the trial proceedings and delays have had on the emotional and psychological wellbeing of AE and herself and the effect on their relationship.

THE PARTIES’ POSITIONS

[10] The Applicant brings an application for an adjournment of the trial to obtain disclosure of records of an allegation of sexual assault made by AE against a third party. The third party, a neighbour, was charged and the charges were eventually withdrawn. The charges arose within the same timeframe as the case before the court. The Applicant seeks to use the disclosure to cross-examine AE on the credibility and reliability of her allegations against the Applicant.

[11] The Applicant relies on R. v. Riley which considered the appropriateness of allowing the defence to impeach a complainant through cross-examination on a sexual assault by a third party external to the case before the court who had been acquitted. The court was concerned whether there was a sufficient record before the court about the reason for the acquittal to allow cross-examination. The court held:

The only legal basis of which we are aware that would justify the cross-examination of this complainant along the lines suggested would be in order to lay the foundation for a pattern of fabrication by the complainant of similar allegations of sexual assault against other men. This should not be encouraged unless the defence is in a position to establish that the complainant has recanted her earlier accusations or that they are demonstrably false.

R. v. Riley, [1992] O.J. No. 4072 (Ont. C.A.), at para. [8]

[12] The Applicant also cites a case of this court, R. v. A.G., where, in the circumstances of that case, the court found that occurrence reports revealed that the allegations of sexual assault against a third party met the requirements of R. v. Riley: [R. v. A.G. [2015] O.J. No. 894 (Ont. C.A.), at paras. 7 and 8].

[13] As it stands, the Applicant knows little about the third party case except that the offender was a neighbour who was alleged to have sexually assaulted AE during the same timeframe as the sexual assaults alleged before this court. The Applicant is unaware whether AE recanted her evidence or whether the allegations were found to be demonstrably false. The Applicant is hoping to discover the basis of the acquittal from the disclosure and to achieve this the defence will require time to obtain the necessary documentation.

[14] The disclosure sought is in the custody of the Toronto Police Service. Given the possible privacy interests at stake in the contents of the third party records an application under s. 278 would be required. The parties agreed the records would likely have elements of other sexual conduct by AE and as such a s. 276 application would also be required to be brought. When considering a further delay in the proceedings under these circumstances, regard must be had to the time factors involved with sections 276 and 278 applications, that is, the two-step regimes on each application where, if the complainant should choose she can consult counsel and have counsel make submissions on admissibility at the second step.

[15] The starting point of the Respondent’s submissions was the broad discretion of the court in deciding adjournments. Discretion will not be interfered with unless the trial judge has failed to exercise their discretion “in a judicial way” or the refusal to grant an adjournment has resulted in a miscarriage of justice: [R. v. Olbey, [1977] O.J. No. 1199 (Ont. C.A), at para 27]. The following cases allowed adjournments under a variety of fact situations:

• a decision to deny an adjournment did not result in unfairness and as such the trial decision was not disturbed on appeal: [R. v. Olbey, at paras. 24 and 27];

• an accused obtained an adjournment to seek consultation with counsel and requested a second adjournment on the basis that he did not have counsel at trial; adjournment denied; appeals to the Ontario Court of Appeal and the Supreme Court of Canada deferred to the trial judge’s discretion; laches in the procurement of a witness was a factor considered: R. v. Darville, 1956 CarswellOnt 28 (S.C.C.), at paras. [7 and 13];

• an accused sought an adjournment during trial to procure the testimony of a doctor as an expert witness in a complex medical liability case; the appeal court, citing R. v. Olbey, denied the adjournment due to concern that a break in the complex evidence would be a risk to the jury’s recollection: [R. v. Smith, 2001 CarswellOnt 4436 (Ont. C.A.), at paras. 47 – 49];

• an accused’s lawyer did not appear at trial so the accused was without counsel at trial on an assault police charge; the trial judge refused the adjournment and the accused sought a new trial because the adjournment was denied; the Supreme Court of Canada upheld the adjournment holding that the accused did not suffer prejudice for being required to proceed to trial without counsel: [R. v. Barrette, [1977 2. S.C.R. (S.C.C.), at p. 127].

[16] Decisions on the appropriateness of an adjournment in a particular case must be viewed in the total context of that case. No two circumstances will be the same. The court must consider its broad discretion ensuring that it is exercised in a judicial manner. The court must fairly weigh the defence’s right to full answer and defence with victims’ rights and the public interest in the finality of trials being disposed expeditiously.

[17] Care must be taken that an adjournment does not result in a miscarriage of justice, an unfair denial of individual rights or a failure to recognize broader public interests. The added reality is that delay can also unfavourably affect an accused who also looks forward to the finality of having their day in court.

[18] The Applicant submits that he will take responsibility for the delay occasioned by an adjournment by waiving his Charter rights under s. 11(d). But the Crown appropriately points out that there are broader questions of trial management to be considered in looking at whether a waiver, and deductions in time based on delay, are capable of remedying the possible inefficiencies and unfairness caused by delay. The Supreme Court of Canada in R. v. Cody addresses the important role trial courts must play in securing timeliness in court proceedings and in guarding against wasteful and undue delay, and I quote generously:

37. We reiterate the important role trial judges play in curtailing unnecessary delay and “changing courtroom culture” (Jordan, at para. 114). As this Court observed in Jordan, the role of the courts in effecting real change involves

implementing more efficient procedures, including scheduling practices. Trial courts may wish to review their case management regimes to ensure that they provide the tools for parties to collaborate and conduct cases efficiently. Trial judges should make reasonable efforts to control and manage the conduct of trials. Appellate courts must support these efforts by affording deference to case management choices made by courts below. All courts, including this Court, must be mindful of the impact of their decisions on the conduct of trials. [para. 139]

In scheduling, for example, a court may deny an adjournment request on the basis that it would result in unacceptably long delay, even where it would be deductible as defence delay.

R. v. Cody, 2017 SCC 31, 2017 S.C.C. 31 (S.C.C.), at para. [37]

CONCLUSION

[19] I find in weighing the equities in the case before me that granting an adjournment would lead to a miscarriage of justice.

[20] This matter was initiated some four years ago, the alleged sexual abuse occurring in 2017. It cannot be overlooked that the complainant is a young girl of 12 years of age presently, age 8 years when she disclosed the abuse. She has already spent half of her life in abeyance. Courts have recognized the particular problems young victims of sexual abuse can have with recall of the details of the traumatic experience: R. v. D.(D.), [2000] 2 S.C.R. 275, 2000 SCC 43 (S.C.C.), at paras. 31 and 32; R. v. B.(C.), 2008 ONCA 486 (Ont. C.A.), at p.p. 54-55].

[21] I take into account there has been a previous adjournment nearly a year ago at the request of the defence in part owing to the conditions of the pandemic. The pandemic is very likely to add to further delay because of the reduction in court services and the backlogs occasioned by this situation. As well, the prospect of bringing sections 276 and 278 applications in the context of the pandemic adds further layers of possible delay in that those procedures can be rather involved and have to be heard, decided in writing, and disposed of before the trial proper can proceed. And with that degree of potential delay, AE moves further away in time from being able to reliably recall the current allegations as well as the circumstances of the third party allegation.

[22] The equitable doctrine of laches was considered by the court in R. v. Darville, albeit in the context of lateness in procuring a witness. But considerations of lateness by a party are not restricted to tardiness in obtaining witnesses.

[23] I find the defence had notice of the third party allegation by AE a few times along the process before trial, but most significantly as long as two years ago at the time of the preliminary hearing. As well, the Applicant would reasonably have been aware of the allegations because he was residing with the mother at the time the allegations were made. I cannot fathom why he would not tell his counsel about this once counsel was retained.

[24] The use under 715.1 of the Criminal Code by the Crown of AE’s police statement to refresh her memory may go some distance in assisting AE to recall some details. But after four years or longer of delay the effectiveness of that tool may wane.

[25] Victims of sexual assault must not be discouraged from coming forward because of failings in the criminal justice system. Young victims are most at risk. I heard the mother’s credible testimony about the tremendous toll the trial and delay are having on AE, herself, and their relationship.

[26] The mother explained that the more the delay, the greater and more stressful the prospect of the trial becomes for AE. AE’s emotional state could understandably impact the clarity of her memory. I heard the mother’s testimony about not being able speak to her daughter about the case and will not be able to do so until they have both testified. She cannot provide the natural care and support a mother would give to a young vulnerable child during a scary time in their life. As time presses on, this situation will understandably increasingly impact AE’s emotional wellbeing and her effectiveness as a witness.

[27] The accused’s right to full answer and defence is one of the weightiest rights they enjoy. And that right must be protected. But that individual right is frequently set in balance with other individual rights and broader public interests, in this case the protection of victim rights and society’s interest in speedy and efficient dispositions of prosecutions. There is no mathematical or magical formula for determinations on adjournments. The court must ensure that no miscarriage of justice results and that it arrives at its decision in a judicial way. I find in all the circumstances that denying an adjournment in this case meets those standards.

DISPOSITION

[28] The application for an adjournment is dismissed.

Allen J.

Released: December 2, 2021

COURT FILE NO.: CR-19-30000764

DATE: 20211202

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

JS

Applicant

REASONS FOR Decision

(Application for an Adjournment)

Allen J.

Released: December 2, 2021