Durham cop’s sexual intercourse assault conviction tossed about judge’s trip

An enchantment court docket has thrown out a sexual-assault conviction versus Durham law enforcement officer Jack Stelwagen owing to a delay largely triggered by the prolonged family vacation of the semi-retired trial judge.

Stelwagen, then 43, was convicted in 2020 of sexually assaulting a lady in her mid-20s while he was off obligation, and was afterwards sentenced to 12 months in jail. He was granted bail shortly soon after, pending the result of his attractiveness.

Court listened to the lady had fallen asleep subsequent a celebration at a mutual friend’s residence in 2018 and she testified getting no memory of the incident. Stelwagen was discovered alone with the woman in a bedroom by the homeowners.

Provided that Stelwagen was a nearby police officer, his trial, which commenced in November 2019, was read by an out-of-town decide. The case was assigned to Ontario Courtroom Justice Bruce Frazer, a for each diem choose — jurists who are semi-retired and who preside on a portion-time basis. Frazer was authorized to do the job up to a optimum of 96 times a year.

His unavailability in the months subsequent the start out of the trial, like thanks to an prolonged holiday, would in the end guide to the case in opposition to Stelwagen currently being tossed thanks to hold off.

The judge would also later facial area criticism after currently being accused of seeking to conduct Stelwagen’s sentencing listening to remotely whilst allegedly on getaway in Barbados at the top of the COVID-19 pandemic in early 2021.

In his charm determination launched very last week, Top-quality Court docket Justice Jonathan Dawe found that Stelwagen’s constitutional appropriate to a trial in a acceptable time experienced been violated. He quashed Stelwagen’s conviction and stayed the proceedings versus him.

The Supreme Court docket of Canada has claimed that provincial courtroom situations should be completed within just 18 months. Otherwise, they should be tossed unless of course there were excellent conditions for the delay.

Dawe ruled that the “main source of delay” was Frazer’s unavailability and his prolonged winter season holiday vacation abroad for the 1st three months of 2020, which prevented the trial from continuing till April of that 12 months.

“Put only, the root of the dilemma in this situation was the conclusion to assign a fairly prolonged, although not overly intricate, trial that was scheduled to begin in November to a for each diem decide who was totally unavailable to sit for most of the following 4 months,” Dawe wrote.

“The primary supply of delay in this scenario was the demo judge’s extended unavailability simply because of his per diem position and prolonged winter holiday vacation schedule.”

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

Of study course, Stelwagen’s trial did not recommence in April 2020 — at the time, the COVID-19 pandemic had brought about a shutdown in felony courtroom operations.

All those only resumed in December of that yr, when Frazer dismissed Stelwagen’s software to keep the demand due to delay and convicted him of sexual assault.

In dismissing Stelwagen’s hold off application, Frazer subtracted from his calculation the a few months he was absent on holiday vacation in 2020, creating that “the Crown could not have been conscious of this eventuality and it was a make any difference over which the Crown experienced no handle and no sensible possibility to solution.”

But Dawe wrote in his attractiveness ruling that the “possibility that assigning this demo to a per diem choose may well bring about scheduling difficulties” and make a delay problem was “readily foreseeable” and need to have been foreseen by equally the demo coordinator’s office and the Crown legal professional.

Stelwagen stays employed with Durham law enforcement, his law firm Leo Kinahan explained to the Star. He mentioned his consumer is relieved with Dawe’s ruling.

“It is similarly disappointing that it has taken this amount of money of time, price and use of precious and stretched judicial resources to get to this level,” he wrote in an email, “primarily due to an annual getaway timetable, that I would recommend, presented noticeable and foreseeable potential troubles for the trial in the to start with position to everyone who was knowledgeable of it.”

Soon after subtracting months of hold off caused by the pandemic and a few other months of delay caused by other things, Dawe was remaining with a time period of delay of about 19 months, just more than the 18-month limit.

“The internet end result is that the justice program failed to present Mr. Stelwagen with a demo inside of a sensible time,” Dawe wrote.

Inquiries about Frazer’s whereabouts ended up elevated publicly in February 2021 when Kinahan informed courtroom the decide was in Barbados and could likely sentence his shopper from there — at the peak of the COVID-19 pandemic when governments had been urging men and women not to travel and airlines were suspending flights.

“To sentence any person even though you’re on vacation is completely and totally offensive to the administration of justice,” Kinahan experienced told a distinctive decide in virtual courtroom.

At the time, the Ontario Courtroom of Justice had instructed its judicial officers not to preside remotely outdoors the province, reminding them of govt advisories from non-critical travel.

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

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