An attraction courtroom has thrown out a sexual-assault conviction towards Durham police officer Jack Stelwagen attributable to a delay primarily attributable to the prolonged trip of the semi-retired trial decide.
Stelwagen, then 43, was convicted in 2020 of sexually assaulting a lady in her mid-20s whereas he was off responsibility, and was later sentenced to 12 months in jail. He was granted bail shortly after, pending the result of his attraction.
Courtroom heard the girl had fallen asleep following a celebration at a mutual pal’s home in 2018 and she or he testified having no reminiscence of the incident. Stelwagen was found alone with the girl in a bed room by the householders.
On condition that Stelwagen was an area police officer, his trial, which started in November 2019, was heard by an out-of-town decide. The case was assigned to Ontario Courtroom Justice Bruce Frazer, a per diem decide — jurists who’re semi-retired and who preside on a part-time foundation. Frazer was allowed to work as much as a most of 96 days a 12 months.
His unavailability within the months following the beginning of the trial, together with attributable to an prolonged trip, would in the end result in the case towards Stelwagen being tossed attributable to delay.
The decide would additionally later face criticism after being accused of desirous to conduct Stelwagen’s sentencing listening to remotely whereas allegedly on trip in Barbados on the top of the COVID-19 pandemic in early 2021.
In his attraction choice launched final week, Superior Courtroom Justice Jonathan Dawe discovered that Stelwagen’s constitutional proper to a trial inside an inexpensive time had been violated. He quashed Stelwagen’s conviction and stayed the proceedings towards him.
The Supreme Courtroom of Canada has stated that provincial courtroom circumstances should be accomplished inside 18 months. In any other case, they should be tossed until there have been distinctive circumstances for the delay.
Dawe dominated that the “major supply of delay” was Frazer’s unavailability and his prolonged winter trip overseas for the primary three months of 2020, which prevented the trial from persevering with till April of that 12 months.
“Put merely, the foundation of the issue on this case was the choice to assign a comparatively prolonged, though not overly advanced, trial that was scheduled to start out in November to a per diem decide who was fully unavailable to take a seat for a lot of the subsequent 4 months,” Dawe wrote.
“The principle supply of delay on this case was the trial decide’s prolonged unavailability due to his per diem standing and prolonged winter trip schedule.”
The Ontario Courtroom of Justice confirmed that Frazer is now absolutely retired, however declined to touch upon the result of Stelwagen’s case, provided that it could possibly be appealed once more.
After all, Stelwagen’s trial didn’t recommence in April 2020 — on the time, the COVID-19 pandemic had precipitated a shutdown in legal courtroom operations.
These solely resumed in December of that 12 months, when Frazer dismissed Stelwagen’s utility to remain the cost attributable to delay and convicted him of sexual assault.
In dismissing Stelwagen’s delay utility, Frazer subtracted from his calculation the three months he was away on trip in 2020, writing that “the Crown couldn’t have been conscious of this eventuality and it was a matter over which the Crown had no management and no affordable risk to treatment.”
However Dawe wrote in his attraction ruling that the “risk that assigning this trial to a per diem decide may trigger scheduling difficulties” and create a delay drawback was “readily foreseeable” and will have been foreseen by each the trial coordinator’s workplace and the Crown legal professional.
Stelwagen stays employed with Durham police, his lawyer Leo Kinahan informed the Star. He stated his shopper is relieved with Dawe’s ruling.
“It’s equally disappointing that it has taken this period of time, expense and use of beneficial and stretched judicial assets to achieve this level,” he wrote in an e-mail, “primarily attributable to an annual trip schedule, that I might counsel, offered apparent and foreseeable potential difficulties for the trial within the first place to anybody who was conscious of it.”
After subtracting months of delay attributable to the pandemic and some different weeks of delay attributable to different elements, Dawe was left with a interval of delay of about 19 months, simply over the 18-month restrict.
“The web result’s that the justice system failed to supply Mr. Stelwagen with a trial inside an inexpensive time,” Dawe wrote.
Questions on Frazer’s whereabouts had been raised publicly in February 2021 when Kinahan informed courtroom the decide was in Barbados and will probably sentence his shopper from there — on the top of the COVID-19 pandemic when governments had been urging folks to not journey and airways had been suspending flights.
“To condemn someone when you’re on trip is totally and completely offensive to the administration of justice,” Kinahan had informed a distinct decide in digital courtroom.
On the time, the Ontario Courtroom of Justice had informed its judicial officers to not preside remotely exterior the province, reminding them of presidency advisories towards non-essential journey.
In 2021, the courtroom refused to say if Frazer had been presiding from the Caribbean.
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