R. v. Kporwodu (A.), (2005) 196 O.A.C. 272 (CA)

• Judge: Moldaver, Gillese and Juriansz, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 15, 2005
• Jurisdiction: Ontario
• Citations: (2005), 196 O.A.C. 272 (CA);2005 CanLII 11389 (NS CA);2005 CanLII 11389 (ON CA);75 OR (3d) 190;195 CCC (3d) 501;29 CR (6th) 60;[2005] CarswellOnt 1404;[2005] OJ No 1405 (QL);132 CRR (2d) 324;196 OAC 272

R. v. Kporwodu (A.) (2005), 196 O.A.C. 272 (CA)

MLB headnote and full text

Temp. Cite: [2005] O.A.C. TBEd. AP.051

Her Majesty The Queen (appellant) v. Anthony Kporwodu and Angela Veno (respondents)

(C40276)

Indexed As: R. v. Kporwodu (A.) et al.

Ontario Court of Appeal

Moldaver, Gillese and Juriansz, JJ.A.

April 15, 2005.

Summary:

On March 6, 1998, a three month old infant (Athena) died. On May 3, 1999, Athena's father was charged with manslaughter. On May 15, 2000, the father and Athena's mother (the accused) were charged with second-degree murder. The manslaughter charge was withdrawn. The trial commenced on October 23, 2002, and was subsequently adjourned. On April 7, 2003, the trial resumed. The accused applied to stay the proceedings on the ground that their s. 11(b) Charter right to be tried within a reasonable time had been breached.

The Ontario Superior Court, in a decision reported at [2003] O.T.C. 600, allowed the application and stayed the charges. The Crown appealed.

The Ontario Court of Appeal dismissed the appeal.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - The accused's infant child (Athena) died on March 6, 1998 - The accused were charged with second-degree murder - On June 23, 2003, the trial judge stayed the proceedings on the ground that the accused's s. 11(b) Charter right had been breached - In calculating the overall delay, the trial judge included the time from Athena's death to the laying of the charges so as to remedy a breach of the accused's right to make full answer and defence (Charter, ss. 7, 11(d)) - The ss. 7 and 11(d) breaches related to the negligence of the police, the Deputy Chief Coroner and the pathologist who performed the autopsy (Smith) in failing to preserve Athena's remains so that the accused could obtain a second autopsy report - The breaches also related to Smith's negligence in not producing a "pending further tests" report - The Ontario Court of Appeal held that the trial judge erred in including the pre-charge delays in the calculation - When the cremation of Athena's remains occurred on May 29, 1998, the remains were in the accused's and the crematorium's control - None of the State actors had a duty to preserve the remains - Smith did not have a duty to produce a "pending further tests" report, and certainly none that would have required him to do so before May 29, 1998 - See paragraphs 24 to 29.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - The accused were charged with the second-degree murder of their infant child (Athena) - On June 23, 2003, the trial judge stayed the proceedings on the ground that the accused's s. 11(b) Charter right had been breached - In calculating the overall delay, the trial judge included the time from Athena's death to the laying of the charges so as to remedy a breach of ss. 7 and 11(d) - The ss. 7 and 11(d) breaches related to the State's negligent failure to preserve Athena's remains - The Ontario Court of Appeal held that the State had not been negligent - Alternatively, the ensuing breach of s. 7 (and perhaps s. 11(d)) did not entitle the trial judge to include pre-charge delay for s. 11(b) purposes - The accused were entitled to seek a remedy that redressed their inability to make full answer and defence, not one that redressed the time it took to get their matter tried - Further, had the matter been approached as a "lost evidence" breach under s. 7, the accused would not have been entitled to a remedy where they had not been prejudiced - See paragraphs 30 to 36.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - [See second Civil Rights - Topic 3133 ].

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - The trial judge stayed the accused's second-degree murder trial on the basis that the accused's s. 11(b) Charter rights had been infringed - The Crown appealed, asserting that, given the seriousness of the offences, the trial judge failed to properly consider the societal interest in ensuring that the accused were brought to trial and dealt with according to law - The Ontario Court of Appeal agreed that as the seriousness of the offence increased, so did the societal demand that the accused be brought to trial - However, the trial judge gave this interest due consideration - The seriousness of the offence was not a separately enumerated factor to be considered in and of itself - Rather, it had to inform both the court's consideration of factors relevant to delay and its balancing of the protected interests - While society had a heightened interest in seeing that serious offences were tried, the Crown had a heightened obligation to ensure that such trials were held in a timely fashion - Societal interests and an accused's interest did not automatically conflict in a s. 11(b) analysis - See paragraphs 189 to 197.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - The accused were charged with the second-degree murder of their infant child - The Ontario Court of Appeal affirmed a decision staying the proceedings on the basis that the accused's s. 11(b) Charter right to be tried within a reasonable time had been infringed - The Crown was responsible for 55 months of post charge delay in trying the father and 42 months of post-charge delay in trying the mother - There was an inference of prejudice which was not rebutted - The trial judge erred in assessing prejudice by considering events that pre-dated the charges - However, after the charges were laid, the accused's lives were devastated - The bail conditions restricted their freedom of movement - Their security interests were seriously impaired - The accused had made considerable efforts to move the case along and have it tried - Their interest in being tried within a reasonable time paralleled those of society - The delay was unreasonable - See paragraphs 156 to 199.

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - [See third Civil Rights - Topic 3265 ].

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - On May 3, 1999, the accused was charged with manslaughter - On July 16, 1999, the Crown made its initial disclosure - On July 20, 1999, the pathologist who performed the autopsy (Smith) verbally provided new information to the Crown and police - On April 4, 2000, Smith produced a 1.5 page addendum to his autopsy report confirming the new information - On May 15, 2000, the accused was charged with second-degree murder based on the new information - The manslaughter charge was withdrawn - The trial judge subsequently stayed the proceedings on the ground that the accused's s. 11(b) Charter right had been breached - The Crown asserted that the trial judge erred in calculating the overall delay by including the 2.5 months that it took them to make initial disclosure and by not considering the intake requirements - The Ontario Court of Appeal stated that the transition phase from May 3, 1999 to May 15, 2000, should not be carved into pieces - That phase was a lost year for the accused - Smith was primarily to blame - The Crown and the police should have made considerably greater effort and been more resourceful in obtaining the addendum from Smith - Nevertheless, the court addressed and rejected the Crown's assertions - See paragraphs 52 to 62.

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - Two accused were charged with second-degree murder - A controversy arose over the competency of the pathologist (Smith) who had performed the autopsy on the victim - On February 5, 2001, the Crown obtained an adjournment of the preliminary inquiry to obtain an independent review of Smith's autopsy report - The preliminary inquiry resumed in November 2001 - The trial judge subsequently stayed the proceedings on the ground that the accused's s. 11(b) Charter right had been breached - The Crown asserted that the trial judge erred in calculating the overall delay by including the time related to the independent review - The Crown asserted that the inquiry into Smith's competency and the need for an independent review were unforseen events and that the time associated with the review was part of the case's inherent time requirements - The Ontario Court of Appeal rejected the assertions - There was evidence to support the trial judge's finding that the police and Crown counsel were aware of the controversy as early as July 1999 - Accordingly, the review was not unforeseeable - Further, although the Crown had legitimate reasons to seek an adjournment, it could not rely on the resulting delay to explain away delay that was otherwise unreasonable - The Crown was responsible for the seven month delay in obtaining a review report, the following two months that it took to resume the preliminary inquiry and the three weeks of delay occasioned by Smith's unavailability to complete his evidence - See paragraphs 63 to 97.

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - A trial judge stayed a murder trial on the ground that the accused's s. 11(b) Charter right had been breached - In making that determination, the trial judge held that the Crown was responsible for the time spent at the preliminary hearing and at trial litigating the accused's motion for production of coroner reports - The trial judge concluded that the Crown and the Coroner's Office had engaged in oppressive conduct by resisting the motion and caused unnecessary delay - The Ontario Court of Appeal held that the trial judge erred in assigning to the Crown the time spent litigating the production issue - The Crown and the Coroner's Office had reasonable grounds to resist the production motion - Accordingly, their decision to resist did not constitute oppressive conduct - Positions that were reasonably held and legitimately advanced might, in the end, prove unsuccessful - That, however, did not make them oppressive - See paragraphs 101 to 138.

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - A trial judge at a murder trial was critical of counsel for the Crown (Zaied) and counsel for the Coroner's office (Dwyer) - The trial judge made findings of misconduct that impugned Zaied's and Dwyer's professional integrity - In light of those findings, Zaied and Dwyer were replaced as counsel of record - The trial judge subsequently stayed the trial on the ground that the accused's s. 11(b) Charter right had been breached - In making that determination, the trial judge assigned responsibility for the four month delay that resulted from the change in counsel to the Crown - The Ontario Court of Appeal affirmed that the Crown was responsible for the four month delay - Zaied and Dwyer reasonably believed that they could not remain on the record following the findings of misconduct - The findings of misconduct were unwarranted and, accordingly, the State had to bear responsibility - See paragraphs 140 to 155.

Cases Noticed:

R. v. Rahey (1987), 75 N.R. 81; 78 N.S.R.(2d) 183; 193 A.P.R. 183; 33 C.C.C.(3d) 289 (S.C.C.), refd to. [para. 2, footnote 1].

R. v. Bennett (1991), 46 O.A.C. 99; 3 O.R.(3d) 193; 64 C.C.C.(3d) 449 (C.A.), affd. [1992] 2 S.C.R. 168; 138 N.R. 388; 54 O.A.C. 350; 74 C.C.C.(3d) 384, refd to. [para. 2, footnote 1].

R. v. Askov, Hussey, Melo and Gugliotta, [1990] 2 S.C.R. 1199; 113 N.R. 241; 42 O.A.C. 81; 59 C.C.C.(3d) 449, refd to. [para. 11].

R. v. Kalanj; R. v. Pion, [1989] 1 S.C.R. 1594; 96 N.R. 191; 48 C.C.C.(3d) 459, appld. [para. 31].

R. v. Atkinson (G.W.) et al. (1991), 50 O.A.C. 48; 68 C.C.C.(3d) 109 (C.A.), affd. [1992] 3 S.C.R. 465; 143 N.R. 389; 59 O.A.C. 41; 76 C.C.C.(3d) 288, refd to. [para. 58].

R. v. MacDougall (P.A.), [1998] 3 S.C.R. 45; 231 N.R. 147; 168 Nfld. & P.E.I.R. 83; 517 A.P.R. 83; 19 C.R.(5th) 275; 128 C.C.C.(3d) 483, refd to. [para. 75].

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241; 12 C.R.(4th) 1; 71 C.C.C.(3d) 1, refd to. [para. 95].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161; 68 C.C.C.(3d) 1, refd to. [para. 109].

R. v. Dawson (W.) et al. (1998), 77 O.T.C. 224 (Sup. Ct.), refd to. [para. 113].

R. v. Mills (B.J.), [1999] 3 S.C.R. 668; 248 N.R. 101; 244 A.R. 201; 209 W.A.C. 201; 139 C.C.C.(3d) 321, refd to. [para. 120].

R. v. Gingras (1992), 120 A.R. 300; 8 W.A.C. 300; 71 C.C.C.(3d) 53 (C.A.), leave to appeal dismissed, [1992] S.C.C.A. No. 348, refd to. [para. 127].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1; 103 C.C.C.(3d) 1, refd to. [para. 133].

R. v. Torotta, [2004] O.J. No. 2439 (C.A.), refd to. [para. 133].

R. v. Satkunananthan (S.) et al. (2001), 143 O.A.C. 1; 152 C.C.C.(3d) 321 (C.A.), refd to. [para. 158].

R. v. Qureshi (F.) et al. (2004), 192 O.A.C. 50; 190 C.C.C.(3d) 453 (C.A.), refd to. [para. 158].

R. v. Seegmiller (W.) (2004), 192 O.A.C. 320; 191 C.C.C.(3d) 347 (C.A.), refd to. [para. 158].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81; 52 C.R.(3d) 1; 26 C.C.C.(3d) 481, refd to. [para. 172].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 172].

R. v. W.B. (2000), 133 O.A.C. 3; 145 C.C.C.(3d) 498 (C.A.), refd to. [para. 185].

R. v. Allen (H.D.) (1996), 92 O.A.C. 345; 110 C.C.C.(3d) 331 (C.A.), affd. [1997] 3 S.C.R. 700; 220 N.R. 67; 104 O.A.C. 237; 119 C.C.C.(3d) 1, refd to. [para. 187].

R. v. Kovacs-Tatar (G.) (2004), 192 O.A.C. 268; 192 C.C.C.(3d) 91 (C.A.), refd to. [para. 193].

Authors and Works Noticed:

Martin Committee Report - see Ontario, Attorney General, Report of the Attorney General's Advisory Committee on Charge, Screening, Disclosure and Resolution Discussions.

Ontario, Attorney General, Report of the Attorney General's Advisory Committee on Charge, Screening, Disclosure and Resolution Discussions (Martin Committee Report) (1993), p. 256 [para. 127].

Counsel:

Michal Fairburn and Jennifer Woollcombe, for the appellant;

Marlys Edwardh and Breese Davies, for the respondent, Anthony Kporwodu;

John M. Rosen and Cindy R. Wasser, for the respondent, Angela Veno.

This appeal was heard on January 19, 20 and 21, 2005, before Moldaver, Gillese and Juriansz, JJ.A., of the Ontario Court of Appeal. The following decision was delivered by the court on April 15, 2005.