R. v Dungey, 2016 ONSC 2711
The Test for Granting a Stay of Proceeding for Medical Reasons
[37] In R. v. Hillier, [2000] OJ No. 3414 (Ont. C.A.) at paras 1-2, the Ontario Court of the Appeal set out the test for granting a stay of proceedings for medical reasons. The test can be summarized as follows:
The applicant bears the burden of demonstrating on a balance of probabilities that:
(i) he would probably not be able to defend himself; or
(ii) that the trial process would cause significant harm to his health; and
(iii) that his is one of the clearest cases where a stay of proceedings should be imposed.
[38] Counsel for Mr. Dungey cited the Alberta Court of Appeal decision in R. v. Magomadova, [2015] A.J. No. 62 (Alta. C.A.).
[39] In Hillier, the Ontario Court of Appeal held that a fair trial stay could be granted in the clearest of cases but declined to uphold the stay entered by the lower court as “the medical evidence did not show that the respondent would probably not be able to defend himself or that the trial process would probably cause significant harm to his self.”
[40] In Magomadova, the Alberta Court of Appeal reviewed jurisprudence from the Ontario Court of Appeal, other appellate jurisdictions and trial decisions.
[41] Upon completing their review in Magomadova, supra at para 24, the Alberta Court of Appeal rephrased the test for a medical stay as follows:
[24] After considering all of the above, I conclude that the test for determining when mental and/or physical conditions will breach the right to a fair trial under ss 7 and 11(d) of the Charter is not whether an accused has simply established, on a balance of probabilities, that her right to a fair trial would be prejudiced by the fact that her mental and physical health prevented her from making full answer and defence. Rather, the proper test is:
An accused has established, on a balance of probabilities, that her right to a fair trial will be prejudiced by being required to stand trial when
a. her mental or physical health prevents her from adequately defending herself as a result of not being able to (i) understand the nature or object of the proceedings and the possible consequences of the proceedings, or (ii) adequately communicate with her counsel, or (iii) testify when necessary, or
b. the trial process itself would seriously imperil her health.
Has Mr. Dungey Demonstrated that the Trial Presents a Serious Risk of Harm?
[42] I would answer this question in the negative.
[43] Counsel for Mr. Dungey has conceded that under the Magomadova test, only (b) whether the trial process itself would seriously imperil Mr. Dungey’s health, is the issue. It was submitted that based on the medical evidence, Mr. Dungey’s health has declined and currently he is very unwell and in a very fragile condition. Although Dr. Moran could not quantify the risk to Mr. Dungey’s health should the matter proceed to trial, Mr. Dungey’s counsel submitted that she was bound by Dr. Moran’s evidence. She further submitted that this court ought to consider a stay would be an appropriate remedy and that this case would be one of those clearest of cases where such a remedy would be appropriate.
[44] With respect, I disagree for the following reasons:
(a) I find that Mr. Dungey has not satisfied his burden of demonstrating on the balance of probabilities that the trial process would cause significant harm to his health or would seriously imperil his health and that his is one of the clearest cases where a stay of proceeding should be imposed. Whether he would probably not be able to defend himself is not an issue.
(b) In R. v. Blakeman, 1988 CarswellOnt 848 (Ont. Sup. Ct.) at para 73, Watt J. held that in order to grant s. 24(1) relief for medical reasons, a court must establish:
(i) whether the accused is in fact suffering from the specified disability or condition;
(ii) to what extent or degree the accused is suffering from such disability or condition; and
(iii) whether there is a substantial risk that requiring the accused to stand the proposed trial would seriously endanger his health and/or prevent him from making full answer and defence for the charges.
[45] In determining whether a substantial risk of harm exists, it is important to quantify it in some manner. As per R. v. Blakeman, this evaluation should include non-medical evidence (the accused’s activities before and during the proceedings, for instance), but this exercise will no doubt depend on expert opinion also. See R. v. Blakeman, supra at para 76.
[46] On the facts in this case, Mr. Dungey’s underlying medical condition remains more or less the same as when Dr. Gray wrote his 2014 letters. However, Mr. Dungey’s condition has stabilized. Since these initial reports to the court, Mr. Dungey’s angina and irregular heart rhythms have improved with the implanted pacemaker. The CNCC report speaks to his ability to walk and to be alert.
[47] Beyond the letters of Dr. Gray the court has considered the reports of Dr. Moran marked Exhibits #1 and #2. Dr. Moran opines that Mr. Dungey’s health is medically stable as at January 26, 2016. However, his prognosis is guarded. In his report of March 8, 2016, Dr. Moran again reports of the declining health of Mr. Dungey. He continues to suffer from shortness of breath caused by heart failure and coronary artery disease. He is only capable of minimal physical activity and is confined to bed or wheelchair all of the time. As of March 8, 2016, Dr. Moran was of the opinion that at the present rate of physical deterioration, he would be very surprised if Mr. Dungey was medically fit to attend his upcoming trial.
[48] However, the viva voce evidence of Dr. Moran, quite to the contrary, established that Mr. Dungey has “rallied” in respect of his physical condition and that there has been some improvement so that he would be physically able to attend trial. Further, Dr. Moran was unable to quantify the risk associated with Mr. Dungey attending trial. Dr. Moran could not estimate Mr. Dungey’s life expectancy.
[49] While this court appreciates the forthrightness and candour in which Dr. Moran presented his viva voce evidence, I find that Dr. Moran simply could not give evidence to establish a substantial risk to Mr. Dungey’s health associated with the trial of this matter.
[50] I find that on all the evidence, Mr. Dungey has failed to show a substantial risk to his health or that the trial process itself would seriously imperil his health. I find Mr. Dungey has not met his burden on the balance of probabilities to establish that the trial process would seriously imperil his health. See: R. v. R. (J), [2006] O.J. No. 2531 (SCJ) at paras 1, 5, 10, 13-14, 17, 26. Dr. Moran’s testimony failed to assist Mr. Dungey in satisfying his onus.
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