COURT OF APPEAL FOR ONTARIO
Simmons, Cronk and LaForme JJ.A.
BETWEEN
Her Majesty the Queen
Appellant
and
James McCue
Respondent
Bradley Reitz and James Clark, for the appellant
James McCue, acting in person
Heard: January 5, 2010
On appeal from the orders of Justice R.J. Flaherty of the Ontario Court of Justice dated December 8, 2008.
1The respondent was charged with trafficking in cocaine arising out of an incident that occurred on July 18, 2007.
2On December 8, 2008, Flaherty J. ordered a stay of the proceedings against the respondent and also ordered the Crown to pay costs to the respondent in the amount of $4,000.00.
3The Crown appeals both orders.
4For the reasons that follow, I would allow the appeal, set aside the orders below and dismiss the respondent’s application for a stay and costs.
Background
5The respondent's first trial date was set for the January 30, 2008. On that date, all Crown witnesses were present and the Crown was ready to proceed. However, the respondent asked for and was granted an adjournment to permit him to retain counsel.
6A second trial date was eventually set for July 23, 2008. A part-time Crown (not Mr. Reitz or Mr. Clark) was assigned to the case. According to her submissions made to the presiding judge on July 23, she discovered, on the preceding day, that she had previously acted for the respondent. There is no dispute that, after she arrived at the courthouse for the trial, she immediately advised counsel for the respondent of her difficulty.
7When court opened on July 23, 2008 Crown counsel inquired of opposing counsel whether their discussions should continue. Counsel responded, "Well, I'd like to know, first, if the Crown is prepared to proceed with its case today?" Crown counsel asked for an opportunity to confer with the involved police officers. When court resumed, Crown counsel advised that there had been a mix-up concerning the need to subpoena a civilian witness, with the result that the witness was not present. Crown counsel then asked for an adjournment. She also informed the court that there was one other matter she might have to address, depending on the ruling on her adjournment request.
8The presiding judge refused the requested adjournment. Crown counsel advised the court she was still prepared to proceed with the witnesses she had. However, she indicated that she was required to renew her adjournment request in any event because she faced a potential conflict if it became necessary to cross-examine the respondent on a pending Charter application, because he was a former client. She said she had not revealed this problem earlier out of concern that the disclosure of this information would reveal certain of the respondent’s antecedents, thereby prejudicing him.
9At that point, counsel for the respondent abandoned the pending Charter application. Further discussions ensued in which respondent's counsel indicated that, prior to hearing the Crown’s case, he was not prepared to elect whether the respondent would testify. Crown counsel also indicated that she had tried unsuccessfully to secure the attendance of another Crown.
10Following these discussions, the presiding judge decided to adjourn the case. Respondent's counsel then said that his client had instructed him that he would not testify and asked that the matter proceed. The presiding judge declined to revisit his ruling.
11In a subsequent scheduling discussion, respondent's counsel advised he would be seeking costs against the Crown based on the wasted time arising from Crown counsel's failure to seek an adjournment immediately based on her conflict of interest. In the light of this comment, the presiding judge expressed the view that the matter should proceed before another judge.
12The trial eventually resumed before Flaherty J. on December 8, 2008. In addition to requesting costs, respondent's counsel applied for a stay of proceedings based on abuse of process. In support of that application, the respondent filed an affidavit in which he expressed the view that Crown counsel was untruthful when she said on July 23rd that she was prepared to proceed with the trial with the witnesses she had even though her initial adjournment request was denied.
Ruling on the Stay Application and the Request for Costs
13The submissions and ruling on the stay application were brief. In his ruling, the trial judge observed that it would have been disheartening for the respondent to see his former lawyer appear as Crown counsel and argue for his conviction by requesting the initial adjournment. The trial judge described Crown counsel's conduct as "an unforgiveable breach of solicitor\client duty" and held that, in the circumstances, it would be an abuse of process for the Crown to continue the prosecution.
14Concerning costs, the trial judge held that Crown counsel’s failure to disassociate herself from the prosecution immediately on learning of her conflict was exactly the kind of exceptional conduct that would justify an award of costs against the Crown.
15The trial judge further said it was known on July 23, 2008 that the chief Crown witness had not been subpoenaed and that the Crown could not prove its case had the matter proceeded.
16In the trial judge’s view, by failing to disassociate herself from the prosecution and by failing to find another prosecutor to take on the case, Crown counsel put the respondent in the untenable position of enabling the Crown to secure an adjournment so it could re-subpoena its witness and convict him if he objected to Crown counsel's conflict of interest.
Analysis
17In my view, the trial judge made at least two significant errors that taint his conclusions on both the stay of proceedings and the costs award.
18First, he made a palpable and overriding error in finding that the Crown could not prove its case following the denial of Crown counsel's initial adjournment request. Second, he failed to advert to and apply the legal principles governing the circumstances in which a stay of criminal proceedings may be granted.
19Concerning the first error, there was no evidence in the record on the stay application capable of supporting a finding that the Crown would have been unable to prove its case in the absence of the civilian witness. The respondent's opinion in that respect was of no probative value.
20If anything, the respondent’s evidence filed on the stay application supported the conclusion that the Crown had a viable case without the civilian witness. The respondent acknowledged in his affidavit that the Crown disclosure indicated that at least one police officer had observed a hand-to-hand transaction between the respondent and the civilian witness; had confiscated cocaine from the civilian witness; and had discovered $50 on the respondent's person. The police officer's evidence concerning these matters, if given as anticipated and if accepted, was capable of supporting a conviction. Accordingly, although the civilian witness’s evidence was material, the fact that she was unavailable to testify that the respondent sold her the cocaine was not fatal to the Crown's case.
21Although the trial judge did not refer explicitly to this finding in his ruling on the stay application, he did refer to the civilian witness as being the chief witness for the Crown. In my view, this was the only viable underpinning of the trial judge's conclusion that there was an abuse of process. It is only if one assumes that the Crown could not prove its case on July 23, 2008 given the absence of the civilian witness that there was any prospect for real prejudice to the respondent arising from the Crown's conduct in this matter.
22In that regard, Mr. McCue does not allege that Crown counsel acted for him previously in a matter related to this one or that Crown counsel possessed confidential information directly relevant to this matter, such that Crown counsel was prohibited absolutely from acting against him in this case: see Rule 2.04(4) of the Rules of Professional Conduct and related commentary. In fact, Mr. McCue’s conduct in withdrawing his Charter application and in indicating he would not testify so the trial could continue on July 23, 2008 belie this suggestion.
23Although I agree that it may have been preferable had Crown counsel informed the trial judge of her potential conflict immediately on July 23, 2008, at its highest, her failure to do so was an error in judgment. Moreover, I see no evidentiary basis for characterizing it, as the trial judge did, as “an unforgiveable breach of solicitor\client duty.”
24Concerning the second error, the trial judge failed to reference any of the legal principles applicable on an application to stay criminal proceedings.
25A judicial stay of criminal proceedings is a remedy reserved for the clearest cases of abuse where either:
o any prejudice caused by the abuse would be manifested, perpetuated, or aggravated with a trial or its outcome; or
o no other remedy is reasonably capable of removing the prejudice.
See R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297.
26The facts of this case fall far short of the type of prosecutorial conduct that would warrant the extraordinary remedy of a stay of a criminal proceeding. Once the trial judge’s finding that Crown counsel placed the respondent in an untenable position is removed, there is simply no basis for a finding of abuse of process. In these circumstances, it follows that there is also no basis for making an award of costs against the Crown.
Disposition
27Based on the foregoing reasons, I would allow the appeal, set aside the orders below and dismiss the respondent’s application for a stay of proceedings and costs against the Crown. If it becomes necessary, a warrant may issue to secure the respondent’s attendance to set a new date in the court below.
RELEASED: January 12, 2010 “HSL”
“Janet Simmons J.A.”
“I agree E.A. Cronk J.A.”
“I agree H.S. LaForme J.A.”