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.”