2010 QCCQ 12895, 2010 QCCQ 12895

Rodgers c. R. 2010 QCCQ 12895 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF TEMISCAMINGUE TOWN OF VILLE-MARIE Criminal & Penal Division No: 610-01-004573-089 DATE: December 7, 2010 ______________________________________________________________________ BY THE HONOURABLE NANCY McKENNA, J.C.Q. ______________________________________________________________________ VICTOR RODGERS Accused - Applicant v. HER MAJESTY THE QUEEN Prosecutor - Respondent ______________________________________________________________________ JUDGMENT ON A MOTION FOR STAY OF PROCEEDINGS ______________________________________________________________________ [ 1 ] This judgment is subject to an order pursuant to

section 486.4 of the Criminal Code prohibiting the publication or transmission of any information that could identify the complainants in any way. [ 2 ] The accused stands trial on seven counts of sexual offences against two different victims. [ 3 ] At the beginning of the trial, before any evidence is heard, he seeks a stay of proceedings on the first three counts, pursuant to sections 7 , 11a) , 11b) and 24(1) of the Canadian Charter of Rights and Freedoms .

He challenges the prosecution on a number of grounds. [ 4 ] Firstly, the applicant argues that the crown did not disclose all the evidence supporting the indictment before the preliminary inquiry. Secondly, he alleges that the pre-charge delay denies his right to a fair trial. Thirdly, he asserts that the state conduct amounts to abuse of process. In a much less vigorous manner, the applicant states there is a reasonable apprehension of bias based on the fact that the presiding judge at the preliminary inquiry had previously been involved in the case, in his prior practice as a crown prosecutor.

Lastly, he also argues that his client’s right to full answer and defence is denied since the complainant alleges the applicant and his brother sexually abused her. The applicant’s brother has since died. [ 5 ] The defence is of the opinion that the grounds of challenge viewed in context and cumulatively taken rise to the level of an abuse process which warrant the Court staying the current proceedings. FACTS [ 6 ] In January 2007, sergeant detective Richard Ayotte from the Regional Investigation unit of the Sûreté du Québec takes over from the Ville-Marie detachment a complaint of sexual assault filed by A.

P. [ 7 ] In the course of the investigation, information following which the applicant might also have sexually abused two other victims is brought to sergeant detective Ayotte’s attention. One of the alleged victims suffers from a mental disability. The other one is K. P. H. Thus, he meets her for the first time on February 16, 2007. On this occasion he learns that she had filed a complaint against the applicant in 1991 at the Winneway police station, then part of the Pointe Bleue Native Police Force. Sergeant Ayotte asserts that before February 2007 , he wasn’t aware of the complaint previously filed by K. P.

H. At this point, she explains she never heard back from the police and needs time to reflect on the opportunity to reactivate her complaint made several years ago. On March 9, 2007 , sergeant detective Ayotte meets with K. P. H. at which date the complainant gives a written statement concerning the sexual abuse, which occurred in the 1990's. [ 8 ] Thereafter, sergeant detective Ayotte undertakes to find the police report pertaining to the 1991 complaint made by K. P. H.

On March 29, 2007, he meets James Simpson who worked as a police officer at the Long Point police force as well as for Pointe Bleue Native Police Force in the community of Winneway in the 1990’s. Mr Simpson vaguely recalls K. P. H. filing a complaint for sexual offences in the early 1990's , but cannot assist the police as to further details on the matter. [ 9 ] It is important to add that in 2007, the native community of Winneway no longer had its own police force.

The Sûreté du Québec was responsible for law enforcement within the community. [ 10 ] Accordingly, on April 9, 2007 , sergeant detective Ayotte pursues his search for the file by requesting the assistance of Jean Vicaire, officer of the Sûreté du Québec.

[ 11 ] Officer Vicaire designates officer Jean-François Baril to locate the said file. During the course of his search , officer Baril is given the run-around. He first meets Nelly Mathias who acted as a police officer for Long Point police force until the takeover by the Sûreté du Québec. She explains that Winneway Long Point police force was established in 1996 and that accordingly the police archives began the same year. She was unable to find any police files dating back to 1991. [ 12 ] Furthermore, officer Baril meets Martin Mathias , once also a police officer for the community of Winneway.

He informs officer Baril that all police files of Long Point police force were transferred to the Sûreté du Québec. He adds that certain files might still be found either in the exhibit room or in the filing cabinets still at the police station. [ 13 ] Officer Baril then turns to Ms Mélanie Pichette, previously a secretary for the Long Point police force. He accompanies her to the police station and searches in the filing cabinets. No files are found. It is agreed that Ms Pichette will find the keys to the exhibit room in order to locate the missing file.

Officer Baril returns the next day and Ms Pichette isn’t in the office so he leaves her a message. According to the agreed statement of facts, no other measures are taken in 2007 to access the 1991 police report. [ 14 ] Sergeant detective Ayotte submits his file to the crown on July 24, 2007. The crown prosecutor responsible for the file, at that point in time, M e Diane Gagné, meets with all the complainants and requests a psychological report concerning one of the victim’s. This gave rise to a certain delay.

On September 9, 2008, the crown prosecutor proceeds with an information, which includes nine counts of sexual offences involving three complainants. [ 15 ] Following the applicant’s failure to attend Court on June 25, 2009, he is released on undertaking with conditions after which several changes to the undertaking are brought upon agreement by both parties. The preliminary inquiry is held on January 21, 2010, at the beginning of which the crown prosecutor requests the withdrawal of two counts concerning A. P.

The Court grants the withdrawal. [ 16 ] After the preliminary inquiry the crown now in charge of the prosecution, M e Mélanie France Tourigny , requests further pursuit of the 1991 police report. On February 2010, sergeant detective Ayotte meets with Ms Marielle Rannou who works for the Winneway community council. It is understood she will ask employees to search for the file in the former Long Point police station. The agreed statement of facts shows that Ms Rannou phoned K. P. H. and told her she would give her the keys to the police station and that she could take a look for the 1991 police file. As K. P.

H. had previously acted as a police officer, she accepted. She found the file and remitted it to sergeant detective Ayotte on February 4, 2010. The investigation officer in 1991 was James Simpson. He confirms the police report found by K. P. H. seems complete. The evidence shows there are some discrepancies between the statement made by the complainant in 1991 and the one she made in 2007.

Attached to the police report was a letter from Mr Richard Laflamme, then a crown prosecutor, in which he states that after meeting with the alleged victim he concludes that due to the weakness of the complainant it is not advisable to lay charges. [ 17 ] On February 5, 2010, the crown prosecutor informs defence counsel of the existence of the 1991 police report which was disclosed on February 9, 2010. Not long after, Laflamme J. was informed by the parties of the discovery of the police file and of his letter dated April 5, 1991.

From the agreed statement of facts Laflamme J. stated to both parties having no recollection whatsoever of his implication in the file as a crown prosecutor, almost 19 years earlier. THE LAW [ 18 ] The test for abuse of process was laid down by the Supreme Court of Canada in R. v.

Jewitt : [1] […] there is a residual discretion in a trial court judge to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency and to prevent the abuse of a court's process through oppressive or vexatious proceedings".

I would also adopt the caveat added by the Court in Young that this is a power which can be exercised only in the "clearest of cases". [ 19 ] Although the notion of abuse of process has its origin in the common law, the analysis of that issue in Canada is now subsumed with that of the Charter . [2] [ 20 ] Abuse of process requires that the prosecution be tainted to such a degree that to allow it to proceed would tarnish the integrity of the Court.

It entails the affront to fair play and decency that is disproportionate to the societal interest in the affective prosecution of criminal cases that the administration of justice is best served by a stay of proceedings. [3] [ 21 ] Understandably so, the residual discretion to remedy an abuse of the Court's process is limited to the "clearest of cases" which means to say a conduct that shocks the conscience of the community and is so detrimental to the proper administration of justice that it warrants judicial intervention.

The evidence must therefore be overwhelming that the proceedings under scrutiny are unfair to the point that they are contrary to the interest of justice. [4] [ 22 ] Accordingly, in R. v. O'Connor [5] the Supreme Court adopted the position that a stay of proceedings will only be appropriate when two criteria are fulfilled: (1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and (2) no other remedy is reasonably capable of removing that prejudice.

[ 23 ] Thus, the applicant bears the onus to show on a balance of probabilities that the state, by its conduct, breached his Charter rights and that such a conduct viewed globally, constitutes an abuse of process. Pre-charge delay [ 24 ] It is well established that the fairness of a trial is not automatically undermined by lengthy delay.

It is the effect of the delay upon the fairness of the trial, not its length that is relevant. [6] The Supreme Court has stated that to stay proceedings based on mere passage of time would be equivalent of imposing judicially created limitation period for criminal offences. [7] Hence, the accused bears the burden of showing that he suffered a prejudice regarding the fairness of the trial or his right to full answer and defence. [8] [ 25 ] Furthermore, the Court of Appeal of Quebec in R. v.

Papatie [9] reminds us that the assessment of the fairness of the trial must be made from the point of view of members of the community and the complainant and not only from the accused's stand point. Also, the Court must consider the prejudice suffered by an accused in light of the interest of society in having the trial process arrive at the truth. The Supreme Court in R. v. Bjelland recently expressed this same principle. [10] Conduct of the crown [ 26 ] The concept of a crown attorney was expressed by the Supreme Court in Boucher v.

The Queen : [11] It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be clone firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion 'of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility.

It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the just​ness of judicial proceedings. [ 27 ] Accordingly, it is expected that a crown prosecutor acts objectively, professionally and with due diligence. [ 28 ] It is well settled law that there is prosecutorial discretion to lay charges, provided the prosecution is not malicious. [12] Disclosure of evidence [ 29 ] The general principle regarding disclosure of evidence is that the crown prosecutor has a legal duty to disclose all relevant information to the defence. [13] Evidence bearing on the credibility of an important crown witness meets the test of relevance for disclosure purposes. [ 30 ] However, the automatic disclosure obligation is not absolute, it admits a few exceptions, such as information clearly irrelevant, privileged or otherwise governed by law.

As for the timing of disclosure, initial disclosure should occur before the accused is called upon to elect the mode of trial or to plead. [14] [ 31 ] The regime of disclosure extends only to material in the possession or control of the crown.

The means by which the crown prosecutor comes into possession, that material lies the corollary duty of the police to disclose to the crown all relevant evidence in their possession. [15] Moreover, the crown prosecutor cannot justify a failure to disclose relevant evidence by the fact the police force failed to disclose it to the crown. [16] [ 32 ] However, there are cases where the Court must ask itself what body constitute "the police" for the purpose of disclosure. In R. v.

Smith [17] the Nova Scotia Court of Appeal had to determine what was the crown's duty to disclose when relevant information wasn't obtained as part of the investigation and where the relevant material is in possession of some other police agency. The Court ruled that there was no probative evidence to show the material sought out by the defence was known to exist by the investigating police force.

Accordingly, the Court of Appeal determined that there was no legal obligation to disclose unknown material to the police force simply because it is within the possession of some police force somewhere in Canada. [ 33 ] In cases of late disclosure, Courts of Appeal are very hesitant to confirm a stay of proceedings. In fact, most cases involving late disclosure, the remedy of an appropriate adjournment will suffice in order to allow the accused to determine the proper manner in which to deal with the new evidence.

Thus, having the opportunity to make full answer and defence. [18] APPLICATION TO THE CASE AT BAR [ 34 ] It seems that the motion for stay of proceedings was brought forward after the discovery of the 1991 police file regarding the first complaint made by K. P.

H. [ 35 ] Addressing the matter of disclosure of the 1991 police file, the Court is convinced it satisfies the criterion of relevancy since the first statement made by the complainant can assist the defence as it can certainly pertain to credibility. [ 36 ] In the case at bar, the 1991 police file was not the "fruit of the investigation" pursued by sergeant detective Ayotte. However, the evidence shows the 1991 police report most likely existed and that Mr Ayotte knew that. The difficulty in accessing the file arose from the fact that in 2007, the Long Point police force no longer existed.

When the Sûreté du Québec took over as the appointed police force in Winneway, there was obvious disarray surrounding the transfer of existing files, more particularly the Long Point and Pointe Bleue Police Forces archives. The run-around given to officer Jean-François Baril proves that point. The evidence shows that neither the Sûreté du Québec nor Winneway band council workers knew exactly where the police archives were suppose to be stored. The Court

finds that both organizations certainly showed amateurism in this regard. The Court considers the investigation officer did make some efforts in order to get a hold of the file. It cannot be said that nothing was done in that respect. However, further steps should have been taken in 2007, in order to force Ms Mélanie Pichette to pursue her search. [ 37 ] Nevertheless, the file was found in 2010 albeit in an unconventional manner. The complainant is asked by a band council worker to personally search for a police file.

While the Court finds such delegation unprofessional, there is no evidence that shows that the police was part of those actions. Moreover, there is no evidence that suggests the alleged victim tampered in any way with the police file, once it was found. [ 38 ] Now that the 1991 police report has been disclosed to the defence, the Court considers that the applicant is not denied the opportunity to make full answer and defence, as there is ample time to take notice of the evidence and cross-examine the complainant at length as to her first statement given in 1991.

In particular, there is no basis for concluding that any prejudice to Mr Rodgers arose from late disclosure by crown counsel. [ 39 ] Turning to the pre-charge delay, the Court understands, from the defence arguments, that it would be contrary to principles of fundamental justice to bring Mr Rodgers to Court 20 years after alleged events, particularly when 19 years earlier, a crown attorney was of the opinion no charges should be laid. [ 40 ] First of all, there is no evidence to suggest that the crown’s prosecutorial discretion, in laying charges against the applicant in 2008, was exercised inappropriately, dishonestly or otherwise. [ 41 ] Although it would have been useful for the crown to have in its possession the 1991 police report before deciding to lay charges in 2008, the Court finds there was no impropriety on part of the crown since some efforts were made to get a hold of the said report. [ 42 ] Furthermore, nothing precludes a crown attorney to lay charges 19 years after another crown attorney had reasons not to prosecute.

In the matter under consideration, those reasons pertained to the weakness of the witness, not to bad faith or by the fact the complaint was tainted by oblique motives. As the case law on the matter [19] states the passage of time sometimes allows a complainant to gather the emotional strength necessary to testify in a court of law. [ 43 ] The defence also argues the applicant's right to full answer and defence is denied by reason of the death of the applicant's brother.

While noteworthy that the agreed statement of facts reveals the applicant and his brother both abused the complainant, nothing indicates that they would have been together at the time of the alleged abuse. In fact, the evidence shows the applicant and his brother were not together during the alleged incidents. It cannot be argued that the applicant's deceased brother could be a potential eyewitness. Therefore, no prejudice arising as a result of the death of the applicant's brother has been proven. [ 44 ] The delay in laying charges in 2008 was explained by the fact the crown asked for further disclosure.

The Court is in no position to second-guess that request. Furthermore, there is no evidence the accused was detained in the course to the investigation. [ 45 ] The applicant has not demonstrated, on a balance of probabilities, that his right to full answer and defence is prejudiced as a result of the pre-charge delay. [ 46 ] In its submission before the Court, defence did not seriously press the argument concerning the prior conduct of Laflamme J. who presided the preliminary inquiry.

Accordingly, the Court will not address it extensively in these reasons. [ 47 ] The defence essentially submits that Laflamme J., in his prior practice as a crown attorney, refused to lay charges against the applicant concerning the same complainant which gives rises to reasonable apprehension of bias, considering he presided the preliminary inquiry. [ 48 ] Upon discovery of the 1991 police report, both parties informed Laflamme J. who had no recollection of his previous involvement in the case, nearly 20 years earlier.

The Court is of the opinion reasonable apprehension of bias at preliminary inquiry cannot be raised in hindsight in front of the trial judge. The Court has no authority to control the preliminary inquiry process. In the case at bar, defence failed to address the competent jurisdiction by way of extraordinary remedies or otherwise. The Court does not attach any weight to this ground of the defence challenge. [ 49 ] After careful consideration of each of the challenges individually and in combination, the Court finds there is no evidence as to actual prejudice to the accused.

Therefore, the applicant doesn’t fulfill the criteria set forth by the Supreme Court regarding stay of proceedings based upon an abuse of process. Moreover, the conduct of the crown and the police doesn't meet the high threshold required to constitute an abuse of process.

We are clearly not in a case where there were improper motives or bad faith, which violates the conscience of the community such that it would genuinely be unfair to proceed. [ 50 ] In the present case, the interest of society will be much better served by having the trial process arrive at the truth. [ 51 ] Accordingly, the Court concludes that the submissions made by defence counsel, viewed either alone or in combination, do not rise to the high threshold required for a stay of proceedings. [ 52 ] FOR THE REASONS, THE COURT: [ 53 ] DISMISSES the motion.

__________________________________ NANCY McKENNA, J.C.Q. Mtre. Denis Harvey Legal Aid Rouyn-Noranda Lawyer for the accused - applicant Mtre. Mélanie France Tourigny Criminal and penal prosecuting attorney Lawyer for the prosecutor - respondent Date of hearing: October 26, 2010