R. v. J.D.T., 2020 NSSC 261

SUPREME COURT OF Nova Scotia Citation: R. v. J.D.T. , 2020 NSSC 261 Date: 20200924 Docket: CRBW 492012 Registry: Bridgewater Between: Her Majesty the Queen v. J.D.T. DECISION RE: STAY APPLICATION PUBLICATION BAN: s. 486.4 and s. 539(1) of the Criminal Code Judge: The Honourable Justice Jamie Campbell Heard: August 31, 2020, in Halifax, Nova Scotia Counsel: Daniel Rideout, for the Crown Michael Power, Q.C., for the Defence By the Court (orally): [ 1 ] J.D.T. is an 81-year-old man who is now facing what are sometimes referred to as historical sexual assault charges.

There are three charges of indecent assault and one charge of attempted rape with dates ranging from January 1, 1972 to December 31, 1976. There are two complainants. The Application [ 2 ] The defendant says that the charges should be stayed. He argues that the allegations cover wide time spans and that, along with the passage of time, has made it impossible for him to advance an alibi defence. During the time covered by the charges he was working in positions that required him to be away for extended periods of time from the locations in which the offences are alleged to have taken place.

The records of his employment are no longer available, and his co-workers are no longer available to give evidence as to where he was. One of the physical locations, a house in which the offences are alleged to have taken place has been destroyed by fire. He argues that his own age, the passage of time, the broad range of dates, the loss of potential witnesses and evidence have created extraordinary prejudice to his right to make full answer and defence. [ 3 ] The defendant also says that some of the Crown witnesses have demonstrated that they are carrying out a vendetta against him.

They were involved with a potential land deal that did not proceed and that they referred to the allegations that form the basis of the charges when they demanded money from him. The charges were not laid against him until almost four years after what he says was the attempted extortion.

Pre-charge Delay and the Alibi Defence [ 4 ] Pre-charge delay is not in itself an abuse of process. There are no limitation periods with respect to most criminal charges. Historical sexual assault cases are not unusual in Canada. By their very nature they present a degree of prejudice in almost every case to the accused person. Memories dim. Witnesses become inaccessible. Some evidence may be lost. A person defending themselves in such circumstances faces challenges. [ 5 ] The law also recognizes that a complainant in a sexual assault matter may not be able to make a complaint until years have passed.

Courts cannot consider the length of time between the alleged incident and the making of a complaint in assessing the evidence. That time cannot be considered in assessing the evidence and it cannot be used to support a motion for a stay in the absence of circumstances that distinguish the case as one of the clearest of cases justifying a stay. Time itself is not enough.

The court must consider the effect of the passage of time on the ability to make full answer and defence in the context of that case. [ 6 ] In this case, the defendant says that the passage of time and the broad range of dates, have made it practically impossible for him to advance an alibi defence. This case shares those features with many other historical sexual assault cases. Adult complainants are often called upon to recount what they allege to have happened to them when they were children.

They are not required to name specific dates and often can give only a range of time based on where they were living at the time or what school grade they were in. A defendant in such cases then cannot provide a list of dates or times when they were not in the location where the assault is alleged to have happened. The inability of the accused person to put forward an alibi defence is an impediment. [ 7 ] People are entitled to a fair trial. There is no entitlement to a perfect trial.

This is a feature of historical sexual assaults that is not uncommon and does not make this case one of the clearest of cases justifying the granting of a stay. The Age of the Defendant [ 8 ] Age does not act as a grant of immunity from prosecution. The defendant is 81 years old. There has been no indication that he is unfit to stand trial because he is not able to instruct counsel or to participate in his own defence in a meaningful way.

There is no set combination of age and time elapsed from the date of the incidents giving rise to the charges that would necessarily prevent a person from facing a criminal trial. In the context of this case, the defendant has shown that he is able to instruct counsel and recall his living circumstances and work history over the period covered by the charges. Witnesses [ 9 ] Witnesses that the defendant may seek to call are no longer available. At least one witness is dead. Some may just be very difficult to find. Again, those are features of prosecutions involving claims of historical sexual assaults.

The situation might be different if a witness had given a statement indicating that they had relevant evidence and had died subsequent to giving that statement. The situation might be different if a missing witness could be identified and specific information about the evidence that they would give had been identified. In this case, there is no information about what any witness could or would say. Physical Evidence [ 10 ] The house in which some of the assaults are alleged to have taken place is no longer standing. That structure is not a piece of evidence that is argued to be exculpatory.

To the extent that the physical layout of the house is relevant, witnesses can give evidence about that. The house itself does not need to be available. [ 11 ] This is not a case in which a piece of physical evidence that could potentially help to raise a reasonable doubt as to the guilt of the defendant has been lost or destroyed. Nor is this a case in which a specific witness has been identified, who but for the fact that they are no longer available, could give evidence that would help to raise a reasonable doubt.

The cases cited by the defence each dealt with circumstances in which specific evidence that was identified as potentially serving to exonerate the defendant was no longer available. An evidentiary foundation was put forward for the assertion that the missing evidence would have that effect. What has been put forward here is more general and more speculative. Allegation of Extortion [ 12 ] The defendant has also argued that Crown witnesses have been involved in an attempt to extort him for money based on the complaints that form the basis of the charges.

He says that one of the witnesses is highly vindictive and ill-motivated toward him. The evidence provided in the form of emails suggests that there are questions that could be asked of the Crown witnesses to challenge their motivation and their credibility. A determination on those matters would require a trial on the merits of the case itself. A finding of credibility should not be based on reading emails without even hearing the witnesses themselves.

The fact that there are emails that would allow the defence to seriously challenge the credibility of some Crown witnesses does not justify the granting of a stay. [ 13 ] That issue when considered together with the concerns raised that relate to the passage of time between the alleged incidents and the laying of charges does not mark this case as one of the clearest of cases that would merit the issuing of a stay. Campbell, J.