Judge ditches assault case against officer
Unreasonable delay cited
By Sue Yanagisawa
Local News - Friday, August 19, 2005 @ 07:00
An assault charge against a Kingston Police officer accused of repeatedly
punching a handcuffed 16-year-old boy in the summer of 2002 has been shelved by
a Superior Court judge, who found there was an unreasonable delay in bringing
Const. Michael Seymour to trial.
Seymour’s jury trial was set five months ago in Kingston’s Superior Court of
Justice to begin on Jan. 30, 2006. In booking the time, however, his
Toronto-based lawyer, Scott K. Fenton, also requested a hearing for an
application under the Canadian Charter of Rights and Freedoms to have the charge
judicially stayed. And at a hearing held in late July, Fenton argued,
successfully, that his client was being denied his constitutional right “to be
tried within a reasonable time,” as guaranteed by Section 11b of the Charter.
In his decision, now filed with Kingston’s Superior Court of Justice, Justice
Michael J. Quigley found it “patently clear” that by the time dates were
sought for Seymour’s trial in Kingston there were no time slots available for
a four-day jury trial before January 2006.
But he laid blame for the most significant portion of the delay on the
publication of a story in The Whig-Standard on Oct. 5, 2004, following the
police officer’s preliminary hearing.
That story reported that Seymour had been committed to stand trial and generally
summarized the nature of the allegations against him from an earlier and far
more detailed account the paper had run a year earlier.
The October story didn’t include specific details of the assault that were
previously published, such as the boy’s claim to police that Seymour had
repeatedly punched him while he was handcuffed and helpless in the back seat of
a police cruiser.
But Quigley found that the October 2004 story “essentially summarized the
Crown evidence at the preliminary inquiry.”
The judge doesn’t go so far as to suggest that the content of the story
prejudiced Seymour’s ability to have a fair trial and no one involved in the
case ever complained to the newspaper following its publication.
But Quigley found that because of the publication of evidence from the
preliminary inquiry, the defence had to seek a change in the trial venue.
Thus, in December, Justice Helen MacLeod set up a Jan. 26 teleconference between
Seymour’s lawyer, the Belleville Crown attorney’s office and Justice Monique
Metivier, senior regional judge for the Superior Court in Ottawa. Seymour’s
lawyer argued that his client’s trial should be moved from Kingston to ensure
an impartial jury. The Crown opposed the move.
Metivier dismissed the application on Feb. 1 and sent Seymour’s case back to
Kingston’s Superior Court in March to set a date for a trial.
Quigley reckoned the time from Seymour’s arrest – five months after the
alleged assault occurred – to his trial would have been 37 months.
After the Crown redrafted the charge and opted to proceed indictably, exposing
Seymour to potentially stiffer penalties if convicted, the police officer
converted his June trial date into a preliminary hearing and elected jury trial
in Superior Court.
As it turned out, a death in his lawyer’s family prevented the hearing from
going ahead in June, and it was rescheduled for October.
Quigley decided that was the beginning of an unreasonable 16-month delay in
bringing Seymour’s case to trial.
He wrote: “I find as a fact that the major unexplainable delay in this case
has arisen from the date of the preliminary inquiry of Oct. 4, 2004, until the
assigned trial date of Jan. 30, 2006.”
Quigley was told that Seymour, who had been a member of the Kingston Police
Force for 3½ years when he was charged, has been under the care of a
psychiatrist. He was also told that the constable has been prescribed medication
for the past 2½ years for an anxiety disorder and depression.
The prejudice to Seymour goes far beyond the anxiety one would normally
experience as a result of being charged with assault, the judge said.
He concluded: “I find that in this particular case the accused’s right to be
tried within a reasonable length of time trumps society’s right to have a
criminal case tried on its merits.”
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