Oshawa cop’s sexual assault conviction thrown out due to trial delay, judge’s vacation

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Published March 30, 2023 at 7:38 pm

An Oshawa police officer’s conviction for the sexual assault of a woman during a 2018 house party has been thrown out because of the trial delay caused in part by the judge’s extended vacation.

Jack Stelwagen was a Durham Regional Police officer when he was accused of assaulting a woman on August 5, 2018, according to court records.

He attended a barbeque at his friends’ house that day with a number of other guests during which he “became very drunk.” Other guests, including the victim, also drank heavily.

Several witnesses testified that the victim drank to the point of passing out and had to be carried to a spare room to sleep it off. They testified they later saw Stelwagen in the room with the victim engaging in sexual behaviour.

Stelwagen was charged with sexually assaulting an unconscious woman during a party and the trial was set to begin in November 2019. Since Stelwagen was a cop, the court tapped Justice Bruce Frazer, who usually presides over proceedings outside of Oshawa, to come to the city to oversee the trial.

Frazer was semi-retired at the time and worked only on a per diem basis. He was scheduled to get through the trial over six days in November but did not complete the proceedings in the time allotted.

The delay was primarily caused by a witness’ testimony taking longer than expected. The witness did not finish his testimony on the day allotted and requested not to be made to come back the next day because he did not want to cancel psychotherapy patient appointments on short notice.

The Crown Prosecutors and the Defence were able to set an extension date for December. However, this wasn’t enough time to finish the trial either.

Thanks to Frazer’s extended vacation abroad over the winter of 2019 the earliest date the trial could resume was in April 2020. Additionally, Frazer requested written submissions at the conclusion of the evidence presentation which extended proceedings again to May 2020.

However, before the trial could resume, the COVID-19 pandemic struck and shut down all criminal courts in March 2020.

Due to the delay, Stelwagen filed an application for a stay of proceedings under section 11 of the Charter of Rights and Freedoms which guarantees accused be “tried within a reasonable time.”

The criteria of an “unreasonable delay” was outlined in the 1990 case R. v. Askov. The later R. v. Finta case in 1994 decided the delay begins at the time the accused is charged.

Following the R. v. Jordan case in 2016, the Supreme Court decided a wait of 18 months or more is “presumptively unreasonable.” As such any delay beyond that time, unless due to “exceptional circumstances,” will lead to a stay in proceedings.

Stelwagen’s trial resumed in December 2020, some 27 months after he was first charged. He had argued the sexual contact was consensual. However Frazer found the victim had been unconscious at the time and therefore could not consent.

Frazer the dismissed Stelwagen’s application and sentenced him to 12 months in prison and probation.

However, Stelwagen appeal Frazer’s decision. This appeal fell to Justice Jonathan Dawe who, on Mar. 30, 2023, found Frazer had erred in dismissing the Charter application.

“The COVID-19 pandemic can be properly viewed as having been caused by “exceptional circumstances,” Dawe found, “However, even if Mr. Stelwagen’s trial had resumed in April 2020 and been completed by early May 2020, as scheduled and as it would have done but for the COVID-19 pandemic, this would still have been too long.

“The root of the problem in this case was the decision to assign a relatively lengthy, although not overly complex, trial that was scheduled to start in November to a per diem judge who was completely unavailable to sit for most of the next four months.”

“While this delay was not directly caused by Crown counsel, it is in my view properly treated as systemic delay for which the Crown is responsible.”

As a result Dawe found Stelwagen’s Charter rights had been violated “and the only remedy for this breach is to stay the charge against him.” The stay in the charge is “tantamount to an acquittal.”

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