COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Szabo

 

2018 BCCA 101

Date: 20180312

Docket: CA44888

Between:

Regina

Respondent

And

Cory Carl Szabo

Appellant

Before:

The Honourable Madam Justice D. Smith

The Honourable Madam Justice Dickson

The Honourable Mr. Justice Fitch

On appeal from: an order of the Provincial Court of British Columbia, dated
December 2, 2016 (R. v. Szabo, Coquitlam Docket No. 96434)

Oral Reasons for Judgment

Counsel for the Appellant:

C.J. Nowlin

Counsel for the Respondent:

C. Lusk

Place and Date of Hearing:

Vancouver, British Columbia

March 12, 2018

Place and Date of Judgment:

Vancouver, British Columbia

March 12, 2018


 

Summary:

The appellant seeks to quash his convictions for assault on the ground that the court below failed to put to him his right to make an election with respect to mode of trial in accordance with s. 536(2) of the Criminal Code. He also seeks an order staying proceedings under s. 686(8) of the Criminal Code. Relying on R. v. Spence, 2001 BCCA 521, he says a new trial would constitute an abuse of process because he has already served over a year of his two-year sentence. Held: the appeal is allowed, the convictions are quashed and a new trial is ordered. At this stage, the appellant has failed to demonstrate that this case is among the “clearest of cases” requiring a stay of proceedings to prevent an abuse of process. The time served by the appellant is a factor in favour of a stay but must be weighed against the seriousness of the offences, the appellant’s extensive record for assaultive behaviour and the public interest in having these charges disposed of on their merits. Further, unlike in Spence, the appellant has not shown that a new trial might jeopardize his rehabilitative prospects. The appellant may remount the application for a stay of proceedings in the trial court if circumstances give rise to abuse of process concerns that are not apparent at this stage.

[1]          FITCH J.A.: Cory Carl Szabo applies for an order extending the time to appeal his conviction on one count of assault simpliciter and one count of assaulting a peace officer contrary to ss. 266 and 270, respectively, of the Criminal Code, R.S.C. 1985, c. C-46. If the extension of time is granted, Mr. Szabo appeals on the sole ground that he was never afforded the right to make an election with respect to mode of trial pursuant to s. 536(2) of the Code. The appellant seeks an order under s. 686(2) quashing his convictions and an order under s. 686(8) staying further proceedings on grounds that, because he has already served a considerable portion of the sentence imposed on these offences, a new trial would constitute an abuse of process. In support of his request for a stay of proceedings, the appellant relies on R. v. Spence, 2001 BCCA 521 at paras. 16–20.

[2]          The Crown does not oppose the extension of time, nor does it oppose an order quashing the convictions. The Crown concedes that the circumstances support an inference that it had elected to proceed by indictment in relation to both counts. The Crown also concedes that the appellant was not given his right to make an election with respect to mode of trial as required by s. 536(2) and that he did not waive the formal election process. Finally, the Crown does not suggest in the circumstances of this case that the procedural defect that arises as a result of non-compliance with s. 536(2) can be cured through resort to the proviso set out in s. 686(1)(b)(iv) of the Code: see R. v. Mitchell (1997), 121 C.C.C. (3d) 139 (Ont. C.A.) at para. 9; R. v. Spence, 2001 BCCA 521 at para. 16; R. v. Shia, 2015 ONCA 190 at paras. 24–27; R. v. Gibson, 2017 BCCA 367 at para. 4.

[3]          The Crown seeks an order for a new trial and resists the imposition of a stay of proceedings as a remedy under s. 686(8). The Crown submits that the question of whether it is in the public interest to proceed with a new trial should be left to the exercise of prosecutorial discretion. The Crown emphasizes in this regard the seriousness of the charges, the importance of securing dispositions on the merits, and the appellant’s history of assaultive behaviour.

[4]          I would extend the time to appeal the convictions to November 9, 2017, the date upon which the notice of appeal from conviction was filed in this Court. I would also quash the convictions pursuant to s. 686(2).

[5]          I turn next to consider whether this Court should, in the exercise of its ancillary powers under s. 686(8), order a stay of proceedings.

[6]          Some additional background is necessary to frame consideration of this issue.

[7]          On December 2, 2016, the appellant entered pleas of guilty to both counts. The appellant admitted that on June 16, 2016, while incarcerated at North Fraser Pretrial Centre on other matters, he threw two cups of excrement out of the feeding tray slot in his cell door. The excrement landed on the clothing of both victims and on the face of a correctional officer. It would appear that the appellant has six convictions for assault-related offences, including assault with a weapon and assaulting a peace officer.

[8]          On September 30, 2016, the appellant was admitted to the Forensic Psychiatric Hospital for a fitness assessment. By report filed November 2, 2016, the appellant was pronounced fit to stand trial. On November 29, 2016, the appellant discharged his counsel. The matter was put over to the following day. On November 30, 2016, the appellant, who was then unrepresented, expressed a desire to plead guilty. The Crown made it known that if the appellant pleaded guilty it would be seeking a one-year sentence consecutive to the sentence the appellant was then serving. The appellant advised that he had 2½ months left to serve on unrelated matters and requested a sentence of 22 months’ imprisonment in order to obtain a penitentiary term that would permit him to access treatment programs in the federal system. The matter was adjourned to December 2, 2016, to allow the appellant to obtain independent legal advice. On the return date, the appellant reiterated his desire to plead guilty to both counts and receive a period of incarceration that would result in him being transferred to a federal institution. The Crown took the position that a sentence of two years would fall within the applicable range, albeit at the high end of that range. The appellant entered pleas of guilty to both counts. On the same day, he was sentenced to two years’ imprisonment, concurrent on each count. The sentencing judge did not order that the sentence be served consecutively to the sentence the appellant was then serving.

[9]          Assuming the appellant had 2½ months left to serve on other matters when sentence was imposed on December 2, 2016, he has now served about 13 months solely attributable to the sentence imposed on December 2, 2016. I note that the sentence served to date is longer than the sentence sought by the Crown.

[10]       As this Court noted in R. v. Dhillon, 2014 BCCA 480, the test for a stay of proceedings is the same whether the remedy is sought under s. 686(8) of the Code or s. 24(1) of the Charter:

[38]            … regardless of which source is relied upon, a stay may only be entered to prevent an abuse of process and is only to be granted in the clearest of cases: R. v. Babos, 2014 SCC 16 at paras. 30-31; R. v. Regan, 2002 SCC 12 at para. 53; R. v. Power, [1994] 1 S.C.R. 601 at 615; Hinse [[1995] 4 S.C.R. 597] at para. 42. As the Court in Babos said, these cases generally fall into two categories:

[31]      … (1) where state conduct compromises the fairness of an accused’s trial (the “main” category); and (2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the “residual” category) …

[39]            In Babos at para. 32, the Court clarified that whether a stay is sought under the first category or the residual category, the test is the same:

(1)        There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” (Regan, at para. 54);

(2)        There must be no alternative remedy capable of redressing the prejudice; and

(3)        Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits” (ibid., at para. 57).

[11]       The appellant does not suggest that an order for a new trial would cause him irremediable prejudice. The alleged offences were captured on videotape. There is no concern in this case that the appellant’s ability to make full answer and defence has been compromised by the passage of time. Further, the appellant makes no claim that the proceedings have been tainted by Crown misconduct.

[12]       While Spence provides helpful guidance on this point, it is, in my view, distinguishable on its facts. The length of time the offender had served when the appeal was allowed was just one of several factors emphasized by the Court in ordering a stay of proceedings. Most significantly, fresh evidence was adduced on appeal that the appellant, who had a history of mental health challenges, was clinically stable and complying with his treatment regime. In these circumstances, the Court concluded that a new trial would serve neither the interests of society nor the mental health needs of the appellant.

[13]       Evidence that a new trial order might jeopardize rehabilitative strides taken by an offender has, in combination with the time an offender has already served, led to stays of proceedings in other cases: R. v. T.L.C., 2012 BCCA 131 at paras. 53–56; R. v. T.W., 2016 NLCA 3 at paras. 7–11. There is no evidence before us that a new trial order would potentially undermine the appellant’s strides towards rehabilitation.

[14]       The fact that the appellant has now served a substantial portion of the sentence imposed, and more than the sentence sought by the Crown, is a factor that, standing alone, militates in favour of the order he seeks. At the same time, the circumstances of the offences and the offender are such that there continues to be a compelling societal interest in having this matter determined on its merits.

[15]       Weighing the applicable factors as best as I can, I am unable to conclude that this is among the clearest of cases warranting a stay of proceedings. In my view, it has not been shown at this stage that ordering a new trial would constitute an abuse of process. If, as circumstances develop, the position taken by the Crown, either standing alone or in combination with other circumstances, gives rise to abuse of process concerns that are not apparent at this stage, the application for a stay of proceedings may be remounted in the trial court.

[16]       For the foregoing reasons, I would grant the extension of time to appeal conviction, allow the appeal, quash the convictions entered in the court below and order a new trial.

[17]       D. SMITH J.A.: I agree.

[18]       DICKSON J.A.: I agree.

[19]       D. SMITH J.A.: There will be an order extending the time to November 9, 2017 to appeal conviction. The appeal is allowed, the convictions entered in the court below are quashed and a new trial is ordered.

“The Honourable Mr. Justice Fitch”