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PROCEDURE - Election - By Crown - To proceed by way of indictment - Trials - Stay of proceedings

Friday, December 08, 2017 @ 8:33 AM  

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Appeal by St. Amand from his conviction for making available child pornography and for leave to appeal his sentence of 12 months’ imprisonment, the statutory minimum. St. Amand made inculpatory statements to police in the context of their execution of a search warrant for his residence, where a computer containing thousands of images of child pornography were discovered, 750 of which were readily accessible and shared through a file sharing program. The Crown elected to proceed by way of indictment, prompting a stay application by St. Amand that was unsuccessful. The judge found that the Crown’s election did not constitute an abuse of process. He noted that the relative seriousness of the images found on the computer was not an issue related to the exercise of the Crown’s prosecutorial discretion and that the Crown was not obliged to consider St. Amand’s personal circumstances in deciding whether to proceed summarily or by indictment. St. Amand also unsuccessfully sought to stay the proceedings based on a lack of notice of the Crown’s intention to cross-examine St. Amand and other defence witnesses at the sentencing hearing. He entered a guilty plea on March 31, 2014, less than one year after he was charged. His sentence was imposed on June 1, 2016. The Crown accepted that the total delay was 38 months. On appeal, St. Amand submitted that the sentencing judge erred by dismissing his applications for a stay of proceedings based on abuse of process and erred in his treatment of his Notice of Constitutional Question, in which he challenged the propriety of the Crown's decision to by indictment. St. Amand also submitted that the sentencing judge erred by dismissing his application for a stay of proceedings based on unreasonable delay.

HELD: Appeal from conviction dismissed. Leave to appeal sentence allowed, sentence appeal dismissed. The Crown was not obliged to attenuate its election decision based on a defence psychological risk assessment, and was not required to review and categorize the images of child pornography prior to making its election. The Crown was under no obligation to provide notice to the defence of its intention to cross-examine witnesses at the sentencing hearing. Absent evidence of bad faith, the Crown was not obliged to provide reasons for its decisions in the course of a prosecution. The sentencing judge had no duty to scrutinize the Crown’s decision to proceed by way of indictment. The total delay between charge and sentence was presumptively unreasonable. Eight-and-one-half months of this delay was attributable to the defence for making frivolous stay motions and declining available dates due to the unavailability of trial defence counsel. The remaining delay was largely attributable to neutral inherent delay. St. Amand showed little interest in moving sentencing forward. His counsel was content to engage in protracted exchanges with Crown counsel, attempting to induce a change of election and to lower the potential sentencing range, while doing little to advance the case. The fact that most of the delay followed the guilty plea was relevant to prejudice, given that St. Amand was no longer entitled to the presumption of innocence throughout most of the period of delay.

R. v. St. Amand, [2017] O.J. No. 6140, Ontario Court of Appeal, E.A. Cronk, R.G. Juriansz and D. Paciocco JJ.A., November 27, 2017. Digest No. TLD-December42017010