Legal Feeds Blog

Monday, 10 December 2012 14:38

Is a 25-year delay enough to have criminal case thrown out?

Is a delay of 25 years from the laying of the information until trial enough to have a case thrown out? The answer seems obvious, but an Ontario judge had a tough job to do in parsing the advancements in DNA testing that resulted in an extraordinarily long investigation of the accused in R. v. Milani.

The fascinating case involves a string of home invasion sexual assaults between April 1985 and December 1987. While DNA testing was in its infancy, police believed they had enough evidence to charge Donald Milani in December 1987. The judge, however, found the evidence lacking and acquitted Milani on one charge and refused to commit him to trial in the three others at the preliminary inquiry stage.

By the 1990s, DNA testing had advanced somewhat through the use of restriction fragment length polymorphism, but that technique required more material than was available.

Eventually, with the development of short tandem repeat techniques and legal changes allowing police to obtain a warrant to collect DNA, authorities took a stab at the case once again in 1997. The results, however, were disappointing. While they didn’t exclude Milani, they didn’t do so with the degree of probability police were looking for, Superior Court Regional Senior Justice Helen Pierce noted in her ruling last week in Milani.

Finally, Y-chromosome testing became available in 2005 that would allow for a more accurate result. By that time, the officer who had been doggedly tracking the case and keeping up to date on forensic advancements had retired.

But police didn’t submit the materials to the Centre for Forensic Sciences until October 2007. In addition, there were problems with one sample, which meant police had to surreptitiously obtain a new one from a discarded cigarette in July 2008. The new results provided more solid evidence, including one that gave a probability of one in 18.8 billion. Police arrested Milani in August 2010. A trial by jury was to take place just a month from now.

Milani, however, applied for a stay given what Pierce determined to be a 301-month delay in the case.

In the Crown’s view, the clock didn’t start ticking for the purposes of analyzing the delay according to s. 11(b) of the Charter of Rights and Freedoms until the issuance of the preferred indictment in July 2010. Pierce, however, disagreed.

“I conclude that the time for assessing delay for the purposes of a s. 11(b) analysis runs from the date of the laying of the first information coincident with the applicant’s arrest on December 22, 1987,” she wrote.

At the same time, she attributed 32 months of delay to the Crown for, among other things, the unexplained failure by police to submit the exhibits to the centre until October 2007.

In the end, Pierce found herself commending certain police officers for the “doggedness and professionalism” in keeping the case — one she noted involved serious offences — alive. But balancing that against Charter protections, she stayed the charges against Milani.

“It is an acknowledgment that individuals should not have to live indefinitely with the prospect of prosecution hanging, like the sword of Damocles, above their heads,” she wrote.

This week at the SCC

The Supreme Court of Canada will hear five appeals this week, including a case in which the attorney general is challenging the courts’ authority regarding fees for amicus curiae and today’s emotional end-of-life case.

(Photo: Shutterstock)
Dec. 10 — Ontario — Cuthbertson v. Rasouli

Statutes: Hassan Rasouli is in a coma. His doctors, Brian Cuthbertson and others at Sunnybrook hospital in Toronto, want to end his life support and administer palliative care but Rasouli’s substitute decision-maker refuses to consent. The main question is whether the doctors need consent or a determination from the Consent and Capacity Board that ending life support is in Rasouli’s best interests.

Dec. 11 — British Columbia — Behn v. Moulton Contracting Ltd.

Aboriginal law: The Crown granted Moulton Contracting timber sale licences and a road permit to log certain areas of land within the Behn family territory, which is located within the Fort Nelson First Nation territory. Several members of the Behn family, most of whom are members of the Fort Nelson First Nation, impeded Moulton’s access to the area, so Moulton filed a claim for damages. The Behn family members argued the licences and permit were issued unlawfully, and the Crown failed to adequately consult with the First Nation and interfered with its ability to exercise its Treaty 8 rights. There are several constitutional issues in question here.

Dec. 12 — Ontario — R. v. Criminal Lawyers’ Association of Ontario

Constitutional law: The trial judges in these criminal cases appointed amicus curiae to make sure the cases would be fair and efficient. The judges also determined their fees to be paid by the attorney general. The attorney general challenged the courts’ authority to set fees for amicus curiae and the courts’ jurisdiction to order that amicus curiae be paid from public funds.

Dec. 13 — Quebec — Gauthier v. R.

Criminal law: Cathie Gauthier called 911, requesting an ambulance. She told the operator that her wrist was cut. When asked if it was a suicide attempt, she said “it was a pact; my husband killed our three children.” She claimed that she woke up lying in her bed with her children, who did not respond upon shaking them, and her husband was lying on the floor. She said her husband had cut her wrist and drugged everyone with sleeping pills. In question is whether the Court of Appeal erred by upholding Gauthier’s guilty verdicts on the ground that she should have prevented the children from consuming the drinks made by her husband.

Dec. 14 — British Columbia — IBM Canada Ltd. v. Waterman

Employment law: At age 65, Richard Waterman was dismissed without cause with two months’ notice after working at IBM for over 40 years. He was eligible for IBM’s pension plan, but he was not planning to retire so he sued for wrongful dismissal. The trial judge ruled that Waterman should have been given 20 months’ notice and awarded damages. Following his termination, Waterman received payments based on a fully vested pension. IBM filed an appeal, claiming that the judge should have deducted the amount of pension benefits paid during the notice period from the damages award, which the Court of Appeal dismissed.