R. v. B., 2003 NSSC 173

IN THE SUPREME COURT OF NOVA SCOTIA Citation: R. v. B., 2003 NSSC 173 Date: 20030403 Docket: SP 186488 Registry: Halifax Between: Her Majesty the Queen Crown v. J.A.B. Defence Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on May 2, 2008. Judge: The Honourable Justice Arthur J. LeBlanc Heard: March 31, 2003 at Pictou, Nova Scotia Written Decision: August 13, 2003 Counsel: Michelle James, for the Crown Howard MacKinnon, for the Defence

By the Court: [ 1 ] J.A.B. is charged with one count of sexual intercourse with a female under the age of 14 years and one count of indecent assault, between the periods 1979 and 1981. [ 2 ] J.A.B. applies for a stay of proceedings on the basis that: 1. An agreement was reached that he would undergo counselling rather than face criminal charges. 2. That the file has been destroyed. BACKGROUND [ 3 ] When J.A.B. was just under 16 years of age it is alleged that he had inappropriate sexual contact with J.M. who was at the time approximately seven years of age. [ 4 ] Detective Sergeant C.C.

Martin investigated the incident. At the time, he was a member of the [...] Police Department. After spending time with J.M. and her family, Mr. Martin felt that a trial would probably do more harm to J.M. and her family than good for the community and J.A.B. as an individual. In his police notes, he noted that J.A.B. was undergoing a regular therapeutic program at the time.

However, he added, given the feeling of the members of the community and the tender age of the witnesses involved, and considering the fact that the suspect seems to be trying to do something to help himself, that there might not be a need to lay a charge.

He added in a letter to the Crown Prosecutor that he felt that this might be an incident where the laying of a charge might be held off for a period of time to further assess the situation, after having kept the suspect under scrutiny for a period of a few months. [ 5 ] In this proceeding, J.A.B.'s mother signed an affidavit indicating that at the time this incident arose, she and her husband were contacted and, along with Sgt. Martin, met with the parents of J.M.. According to both Mr. M. and Mrs.

B., at that time it was agreed that no charges would be laid, but that both J.M. and J.A.B. would undergo psychological counselling. At the hearing Ms. B. said she was surprised to learn that the charges were being proceeded with as she thought the matter had been dealt with back in 1981. I have taken into account that the burden of proof is on the applicant, namely J.A.B., and proof is on a balance of probabilities. ISSUES [ 6 ] Counsel have identified a number of issues that I should consider. 1. Whether or not the police were crown agents or servants? [ 7 ] Mr. MacKinnon argues that in this case Mr.

Martin was indeed a crown servant or agent and Ms. James acknowledge that, in theory, the police can act as crown agents but did not necessarily agree that this was the case in this instance. [ 8 ] Ms. James argues that the complainant, or in this case, her parents, had no roles to play in deciding whether charges are laid, withdrawn, placed in abeyance or stayed. She adds that in cases where the complainant is an infant or under the age of majority, any so called agreement cannot be reached by her parents or guardian. [ 9 ] The case also involves a consideration of whether there was indeed an agreement reached.

Mr. MacKinnon claims that there was

an agreement whereby J.A.B. would undergo counselling and no charges would be proceeded with. The Crown advised that, as indicatedin Mr. Martin's reports, J.A.B. was already undergoing therapy or counselling at the time, and so there was no basis for an agreement. [10] The question is, did J.A.B. make a concession and as a result, did he compromise his rights. [11] This case is unlike the decision of R. v. D. (E)(1990), (ON CA), 57 C.C.C. (3d) 151 (Ont.

C.A.) where ArbourJ.A. (as she then was) stated, at pages 163 and 164: Several courts have found it to be an abuse of process for the Crown to renege on an agreement with the accused. Typically, though,these cases involved "deals" in which the accused had genuinely compromised his or her position and made a real concession inanticipation of some reward, such as the abandonment of prosecution. Moreover, and largely because of that, they were all cases wherethe accused had been prejudiced by the Crown reneging on the deal.

The issue in this case is whether there was real agreement that genuinely compromised the position of the accused in anticipation of theabandonment of prosecution. [12] Mr. MacKinnon also referred to a number of cases including R. v. Desmond, [2002] N.S.J. No. 27 (S.C.); Re: Smith and theQueen (1974), (BC SC), 22 C.C.C. (2d) 268 (B.C.S.C.) and R. v. Crneck, Bradley and Shelley (1980), (ON SC), 55 C.C.C. (2d) 1 (Ont. H.C.J.). In all of these cases the compromise was clear.

In Desmond it was the return of thejewellery on an agreement that there would be no charges laid that later aided in his conviction, and in Smith the accused returned drugshe had hidden on the promise that charges would not be laid. In Crneck the accused had been tricked into giving a formal statementwhich would not have been obtained otherwise. [13] As I have indicated, there is a divergence of opinion whether J.A.B. was in counselling at the time the agreement was allegedlymade. His mother, Mrs. B., indicates in her affidavit that as a result of the agreement, J.A.B. agreed to undertake counselling.

Incross-examination, she was unaware when this counselling commenced, even the year or the length of time it lasted. Mr. M.'s affidavitdoes not speak to that issue. He does not know, or at least did not speak to, when J.A.B.'s counselling started. Another point raised by theCrown is the fact that Mr. Martin did not state there was an agreement in his letter to the Crown Prosecutor.

In these circumstances, theCrown says, how can there be an agreement? [14] Dealing with those two issues, I find that the fact that J.A.B. agreed to go for counselling, regardless of whether or not he was incounselling at the time, is indeed a concession and a change of position. [15] I have reviewed the correspondence from Mr. Martin to the Crown. From that correspondence and the file material, it is clear tome that Mr. Martin intended not to proceed with the charges against J.A.B. in respect of these two matters, if J.A.B. undertookcounselling. That is the only reasonable explanation and

interpretation I can place on this correspondence. If there had been furthercomplaints against J.A.B. arising out of the alleged offences, or if J.A.B. had not undergone counselling to Mr. Martin's satisfaction, thenI agree that there would be no basis to say that there was an agreement. [16] I also want to speak briefly on the issue of the loss of the file. If I understand its position correctly, the Crown is saying, "we keptthe files for the requisite period." There is no evidence as to what that period was, except the letter written to Mr. MacKinnon, which isnot before me.

Assuming for the moment that the Crown did keep the records for the requisite period of time, it was incumbent on theCrown, before destroying the file, ten years after it was opened, to determine whether there was a possibility or probability the chargescould be proceeded with. Admittedly, the reviewing officer may not have known at that time that J.M. was going to proceed and lay acomplaint of her own 20 years after the alleged incident. Nevertheless, it was a requirement, I believe, to retain that file. [17] Therefore on both grounds I am granting the applications and staying the two charges against J.A.B..

J.