GTA cop’s sex assault conviction tossed over delay caused by judge’s extended vacation

GTA cop’s sex assault conviction tossed over delay caused by judge’s extended vacation

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An appeal court has thrown out a sexual-assault conviction against Durham police officer Jack Stelwagen due to a delay mainly caused by the extended vacation of the semi-retired trial judge.

Stelwagen, then 43, was convicted in 2020 of sexually assaulting a woman in her mid-20s while he was off duty, and was later sentenced to 12 months in jail. He was granted bail shortly after, pending the outcome of his appeal.

Court heard the woman had fallen asleep following a party at a mutual friend’s house in 2018 and she testified having no memory of the incident. Stelwagen was discovered alone with the woman in a bedroom by the homeowners.

Given that Stelwagen was a local police officer, his trial, which began in November 2019, was heard by an out-of-town judge. The case was assigned to Ontario Court Justice Bruce Frazer, a per diem judge — jurists who are semi-retired and who preside on a part-time basis. Frazer was allowed to work up to a maximum of 96 days a year.

His unavailability in the months following the start of the trial, including due to an extended vacation, would ultimately lead to the case against Stelwagen being tossed due to delay.

The judge would also later face criticism after being accused of wanting to conduct Stelwagen’s sentencing hearing remotely while allegedly on vacation in Barbados at the height of the COVID-19 pandemic in early 2021.

In his appeal decision released last week, Superior Court Justice Jonathan Dawe found that Stelwagen’s constitutional right to a trial within a reasonable time had been violated. He quashed Stelwagen’s conviction and stayed the proceedings against him.

The Supreme Court of Canada has said that provincial court cases must be completed within 18 months. Otherwise, they must be tossed unless there were exceptional circumstances for the delay.

Dawe ruled that the “main source of delay” was Frazer’s unavailability and his extended winter vacation abroad for the first three months of 2020, which prevented the trial from continuing until April of that year.

“Put simply, 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,” Dawe wrote.

“The main source of delay in this case was the trial judge’s extended unavailability because of his per diem status and extended winter vacation schedule.”

The Ontario Court of Justice confirmed that Frazer is now fully retired, but declined to comment on the outcome of Stelwagen’s case, given that it could be appealed again.

Of course, Stelwagen’s trial did not recommence in April 2020 — at the time, the COVID-19 pandemic had caused a shutdown in criminal court operations.

Those only resumed in December of that year, when Frazer dismissed Stelwagen’s application to stay the charge due to delay and convicted him of sexual assault.

In dismissing Stelwagen’s delay application, Frazer subtracted from his calculation the three months he was away on vacation in 2020, writing that “the Crown could not have been aware of this eventuality and it was a matter over which the Crown had no control and no reasonable possibility to remedy.”

But Dawe wrote in his appeal ruling that the “possibility that assigning this trial to a per diem judge might cause scheduling difficulties” and create a delay problem was “readily foreseeable” and should have been foreseen by both the trial coordinator’s office and the Crown attorney.

Stelwagen remains employed with Durham police, his lawyer Leo Kinahan told the Star. He said his client is relieved with Dawe’s ruling.

“It is equally disappointing that it has taken this amount of time, expense and use of valuable and stretched judicial resources to reach this point,” he wrote in an email, “primarily due to an annual vacation schedule, that I would suggest, presented obvious and foreseeable potential difficulties for the trial in the first place to anyone who was aware of it.”

After subtracting months of delay caused by the pandemic and a few other weeks of delay caused by other factors, Dawe was left with a period of delay of about 19 months, just over the 18-month limit.

“The net result is that the justice system failed to provide Mr. Stelwagen with a trial within a reasonable time,” Dawe wrote.

Questions about Frazer’s whereabouts were raised publicly in February 2021 when Kinahan told court the judge was in Barbados and could potentially sentence his client from there — at the height of the COVID-19 pandemic when governments were urging people not to travel and airlines were suspending flights.

“To sentence somebody while you’re on vacation is completely and totally offensive to the administration of justice,” Kinahan had told a different judge in virtual court.

At the time, the Ontario Court of Justice had told its judicial officers not to preside remotely outside the province, reminding them of government advisories against non-essential travel.

In 2021, the court refused to say if Frazer had been presiding from the Caribbean.

Jacques Gallant is a Toronto-based reporter covering courts, justice and legal affairs for the Star. Follow him on Twitter: @JacquesGallant

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