North Vancouver teacher's 9 convictions for sex crimes against young boys survive Charter challenge
Dennis Cooper is seen in a 1977 class photo with his Grade 6 teacher Brian Moore. Cooper is one of two victims of Moore who successfully had the publication ban on their identities lifted. (Dennis Cooper)
An 85-year-old former teacher has lost his bid to have nine convictions for historical sex crimes against young boys thrown out.
In a decision issued last week, Judge Robert Hamilton dismissed various legal arguments from Brian Melicke Moore about why delays in the case should result in a stay of proceedings.
Moore was convicted in North Vancouver provincial court earlier this year of eight counts of indecent assault and one count of touching for a sexual purpose. He was acquitted of three other counts of indecent assault.
All of the indecent assault convictions stem from conduct that occurred between 1976 and 1982, while Moore was a Grade 6 teacher in North Vancouver. The other conviction relates to an incident involving the child of a good friend at Moore's home between 2005 and 2007.
Moore's sentencing hearing in the case is scheduled for July, according to Hamilton's decision.
While allegations against Moore first came to the attention of police in 1988, the decision indicates he was told by investigators and Crown prosecutors at the time that 'they would not pursue charges against him unless more information came forward.'
In applications to the court, Moore argued that there had been a 34-year delay in bringing the charges against him, breaching his rights under Sections 7 and 11 of the Charter of Rights and Freedoms. He also argued that proceeding with the prosecution after such a delay was an abuse of process by the Crown, and that an additional delay between his arrest in August 2022 and the laying of charges in February 2023 was also a Charter violation.
The 34-year delay
Hamilton rejected the premise of Moore's first argument, writing in his decision that 'there was no 34-year delay' in bringing charges against the teacher.
Rather, the judge determined that the case was essentially 'dormant' until new information was brought to police in 2022.
'The Crown told Mr. Moore in 1988 that no charges would be laid, absent more information,' the decision reads.
'It took 34 years for that additional information to come to the attention of the police and Crown and over the course of one year, June 2022 to June 2023, the police interviewed the complainants in this case, forwarded that information to the Crown, and the Crown approved the charges that came before me at trial.'
Moore argued that the threat of charges had loomed over him since 1988, though Hamilton noted that the teacher had provided no evidence of the physical or psychological toll that this knowledge had taken on him.
Indeed, the judge added, if such a toll existed because Moore knew that there was other information about his crimes that could come to light and cause charges to be laid, that would not be the Crown's fault.
'I would characterize the stress and psychological/physical toll that Mr. Moore has been under since 1988 as being self-inflicted, but nothing to be laid at the feet of the police or Crown,' the decision reads.
Abuse of process
On the question of abuse of process, Hamilton noted that he had dismissed a previous application from Moore that sought to stay the proceedings for the same reason.
'In my view, nothing has changed from the facts advanced in support of the earlier abuse of process allegation and now at the end of the trial,' the judge's decision reads.
It notes that the legal concept of abuse of process involves a two-stage test. First, the court must consider whether the conduct of the prosecution has affected the accused's right to a fair trial, something Moore conceded had not happened in his case.
Second, the court must consider whether the prosecution's conduct undermines the integrity of the justice system.
Hamilton found no such issue, noting that the Crown did had honoured its 1988 statement to Moore that he would not be charged unless new information came forward, and finding that the Crown did 'exactly what the public would expect' once such information was revealed.
Pursuing the case based on new information after 34 years did not undermine the integrity of the justice system, the judge concluded.
'In my view, the opposite proposition is accurate, that being that if the Crown did not prosecute these allegations against Mr. Moore, that failure to prosecute would undermine the integrity of the judicial system,' the decision reads.
'The evidence in this case against Mr. Moore was overwhelming. Failing to bring justice to Mr. Moore's victims would shake the confidence of the public in our justice system. This prosecution needed to happen.'
The undertaking deadline
Finally, Moore argued that his Charter rights were violated when the Crown failed to charge him in a timely manner after his arrest.
According to the decision, the teacher was arrested on Aug. 4, 2022, and released on a police undertaking that imposed various conditions on him and set a first court appearance for Dec. 7 of that year.
However, the charges against Moore were not laid until Feb. 15, 2023, which was well after the court date set in the undertaking.
'Mr. Moore says that because of the failure by the Crown to approve charges by Dec. 7, 2022, there should be a stay of proceedings in this case,' the decision reads.
Hamilton disagreed with this proposition, noting that police set the Dec. 7 first appearance date without input from prosecutors.
'To enter a stay of proceedings because the Crown had not yet reached a conclusion about whether to approve charges in a case dating back to between 1976 and 2005, involving 12 complainants, on or before a date the police selected without any Crown input, in my view, would not only bring the administration of justice into disrepute, such a decision would serve (as) an injustice to the complainants that no informed member of society would endorse,' the decision reads.
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