R. v. Kovacs-Tatar

Unreported (November 22, 2004)

Facts

ON CA

The appellant, a chiropractor, was charged with one count of sexual assault on a female patient. In response to the appellant's motion that his rights to be tried within a reasonable time pursuant to s. 11(b) of the Charter of Rights and Freedoms had been infringed, the trial judge ordered that the charge be stayed. The Summary Conviction Appeal Judge (SCAJ) lifted the stay and ordered that the matter proceed to trail. The appellant submits that the SCAJ erred in 3 respects. 1. she stated that the trial judge found that the institutional delay was "acceptable" thereby misapprehending the trial judge's reasons. 2. she substituted her views as to prejudice for those of the trial judge and further erred in holding the appellant at fault for not expediting the matter. 3. she erred in holding that the trial judge did not balance society's need to have a serious charge tried with the appellant's interest in being tried within a reasonable time.

Reasons

ON CA

"by the time the appellant was suffering signifiant prejudice attributable to the delay, the trial was only 4 months away. Had the appellant taken steps early in the proceedings to se a trial date instead of takeing an unreasonable position respecting disclosure, his trial date could have been set at least 2 months earlier. Considering the overall period of time and the seriousness of the offense, as allegation of sexual assault and thus breach of trust, by a health care provider on a patient, we are satified that s. 11(b) was not infringed.

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