R. v. Arcand

92 O.R. (3d) 444

Court of Appeal for Ontario,

Cronk and Epstein JJ.A. and Glithero R.S.J. (ad hoc)

August 28, 2008

Charter of Rights and Freedoms -- Stay of proceedings -- Abuse of process -- Prosecutorial misconduct -- Stay of proceedings at accused's first trial for breaching pollution laws overturned by Court of Appeal -- Crown laying additional counts that incorporated particulars ordered during first trial -- Accused arguing that new charges laid outside limitation period and should be stayed -- Trial judge raising in chambers meeting whether all charges should be stayed for prosecutorial misconduct -- Trial judge erring in granting stay of proceedings on basis of alleged breach of s. 7 of the Charter due to prosecutorial misconduct and erring in ordering costs against the Crown -- Alleged misconduct not being supported by evidence and trial judge's findings overlooking that many of Crown's actions were sanctioned by court order -- Trial judge's findings tainted by palpable and overriding error -- Even if misconduct had been proven, stay not appropriate as there was no indication that misconduct would continue in future. [page445]

The defendant, the superintendent of a municipal water pollution control plant, was charged in 2001 with a number of offences under the Ontario Water Resources Act, R.S.O. 1990, c. O.40. The defence raised concerns about the adequacy of Crown disclosure and sought particulars of the offences charged. The Crown moved successfully to amend the Information by adding 25 further counts under the Act. The defence delivered a comprehensive disclosure request to the Crown. Shortly afterwards, the Crown served the defendant with a notice of intention to seek a custodial sentence in relation to one of the counts. At the commencement of the trial, the Crown informed the court of the recent discovery of additional materials in the possession of a Crown witness. The trial was adjourned to permit the Crown to review the new material. The Crown then disclosed most of the material to the defence, with the exception of those documents over which the municipality asserted solicitor-client privilege. At the opening of the trial, a defence application for disclosure of the new documents that were subject to the municipality's privilege claim was dismissed. The defence applied to the Superior Court for a writ of prohibition with certiorari in aid on the ground that the Crown had breached its disclosure obligations. The application was granted and the proceedings were stayed. The Crown's appeal from that decision was allowed and the matter was sent back for a new trial. At the new trial, the defence moved to quash the additional charges on the basis that they were laid outside the limitation period. In a meeting in chambers, the trial judge suggested one might argue that the new charges were akin to punishment for the defence motion for particulars and that entire proceedings might amount to an abuse of process. Upon resuming the trial, defence counsel sought a stay of proceedings. The trial judge granted a stay of proceedings on the basis that the defendant's rights under s. 7 of the Canadian Charter of Rights and Freedoms were violated by Crown misconduct which amounted to an abuse of process and awarded costs against the Crown. The summary conviction appeal court upheld that decision. The Crown appealed.

Held, the appeal should be allowed.

The trial judge's finding of serious prosecutorial misconduct was tainted by palpable and overriding error. The trial judge relied on several factors in holding that the Crown had engaged in prosecutorial misconduct sufficient to warrant a stay of proceedings, including (i) the manner in which the Crown handled defence requests for disclosure and particulars; (ii) the Crown's amendment of the information to add the additional charges; (iii) the difference between the Crown's treatment of the municipality, which had pleaded guilty to offences under the Act, and its treatment of the defendant; (iv) the Crown's delivery of a notice of intention to seek a custodial sentence in respect of one of the counts against the defendant; and (v) the Crown's unsuccessful application for an order removing defence counsel from the record at the first trial. Both the trial judge and the appeal judge failed to consider that many of the actions of the Crown attacked by the defence were sanctioned or authorized by the court. Moreover, even if the defence complaints about the Crown's response to the request for particulars in the early stages of the prosecution were legitimate, they were resolved almost four years before the second trial. The Crown's decision to amend the information to incorporate the additional charges also did not support a finding of prosecutorial misconduct or abuse of process. It was noteworthy that at the time of the amendment, the defence raised no objection or complaint of abuse of process. The Crown's different treatment of the defendant and the municipality did not support a finding of prosecutorial misconduct, given the municipality's full co-operation and guilty plea. The service of the notice of intention to seek a custodial sentence was not indicative of prosecutorial misconduct. The fact that the defendant faced potential [page446] jail sentences on some counts did not render improper the Crown's intention to seek custodial sentence on different counts. The Crown had no way of knowing on which counts the defendant might ultimately be convicted. The appeal judge failed to meaningfully scrutinize the factors used by the trial judge to support his finding of prosecutorial misconduct.

The trial judge erred in granting a stay of proceedings on the basis that the continuation of the prosecution, in light of the "egregious" conduct by the Crown, would offend society's sense of justice and undermine the integrity of the judicial process. Not only was there no serious prosecutorial misconduct, but there was no indication that any misconduct was likely to continue in the future, so that the carrying forward of the prosecution would offend society's sense of justice. The remedy of costs in criminal proceedings is to be used rarely and should be based on exceptional circumstances. As there was no prosecutorial misconduct, there was no basis to award costs. The costs order is set aside.

APPEAL from the judgment of Power J., [2007] O.J. No. 3920, 34 C.E.L.R. (3d) 47 (S.C.J.) dismissing a Crown appeal from a stay of proceedings.

Cases referred to Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 CanLII 322 (SCC), [1997] 3 S.C.R. 391, [1997] S.C.J. No. 82, 151 D.L.R. (4th) 119, 218 N.R. 81, J.E. 97-1836, 1 Admin. L.R. (3d) 1, 118 C.C.C. (3d) 443, 14 C.P.C. (4th) 1, 10 C.R. (5th) 163, 40 Imm. L.R. (2d) 23, 74 A.C.W.S. (3d) 52; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 2002 SCC 33, 211 D.L.R. (4th) 577, 286 N.R. 1, [2002] 7 W.W.R. 1, J.E. 2002-617, 219 Sask. R. 1, 10 C.C.L.T. (3d) 157, 30 M.P.L.R. (3d) 1, 112 A.C.W.S. (3d) 991; R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575, [2001] S.C.J. No. 79, 2001 SCC 81, 206 D.L.R. (4th) 444, 279 N.R. 345, J.E. 2002-9, 154 O.A.C. 345, 159 C.C.C. (3d) 321, 47 C.R. (5th) 316, 88 C.R.R. (2d) 189, 51 W.C.B. (2d) 452; R. v. Arcand (2004), 2004 CanLII 46648 (ON CA), 73 O.R. (3d) 758, [2004] O.J. No. 5017, 193 O.A.C. 16, 192 C.C.C. (3d) 57, 10 C.E.L.R. (3d) 161, 125 C.R.R. (2d) 144, 66 W.C.B. (2d) 684 (C.A.); R. v. Chaisson, [2006] 1 S.C.R. 415, [2006] S.C.J. No. 11, 2006 SCC 11, 263 D.L.R. (4th) 577, J.E. 2006-729, 256 Nfld. & P.E.I.R. 181, 206 C.C.C. (3d) 1, 37 C.R. (6th) 43, 139 C.R.R. (2d) 26, 68 W.C.B. (2d) 745, EYB 2006-103136; R. v. Latimer, 1997 CanLII 405 (SCC), [1997] 1 S.C.R. 217, [1997] S.C.J. No. 11, 142 D.L.R. (4th) 577, 207 N.R. 215, [1997] 2 W.W.R. 525, J.E. 97-359, 152 Sask. R. 1, 112 C.C.C. (3d) 193, 4 C.R. (5th) 1, 41 C.R.R. (2d) 281, 33 W.C.B. (2d) 225; R. v. Leduc (2003), 2003 CanLII 52161 (ON CA), 66 O.R. (3d) 1, [2003] O.J. No. 2974, 174 O.A.C. 242, 176 C.C.C. (3d) 321, 18 C.R. (6th) 167, 108 C.R.R. (2d) 337, 58 W.C.B. (2d) 279 (C.A.) [Leave to appeal to S.C.C. refused [2003] S.C.C.A. No. 411, 109 C.R.R. (2d) 187]; R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98, 130 D.L.R. (4th) 235, 191 N.R. 1, [1996] 2 W.W.R. 153, J.E. 96-64, 68 B.C.A.C. 1, 103 C.C.C. (3d) 1, 44 C.R. (4th) 1, 33 C.R.R. (2d) 1; R. v. Power, 1994 CanLII 126 (SCC), [1994] 1 S.C.R. 601, [1994] S.C.J. No. 29, 165 N.R. 241, J.E. 94-649, 117 Nfld. & P.E.I.R. 269, 89 C.C.C. (3d) 1, 29 C.R. (4th) 1, 2 M.V.R. (3d) 161, 23 W.C.B. (2d) 194; R. v. Regan, [2002] 1 S.C.R. 297, [2002] S.C.J. No. 14, 2002 SCC 12, 209 D.L.R. (4th) 41, 282 N.R. 1, J.E. 2002-377, 201 N.S.R. (2d) 63, 161 C.C.C. (3d) 97, 49 C.R. (5th) 1, 91 C.R.R. (2d) 51; R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, [1991] S.C.J. No. 83, 130 N.R. 277, [1992] 1 W.W.R. 97, 83 Alta. L.R. (2d) 193, 120 A.R. 161, 68 C.C.C. (3d) 1, 8 C.R. (4th) 277, 18 C.R.R. (2d) 210; R. v. T. (V.), 1992 CanLII 88 (SCC), [1992] 1 S.C.R. 749, [1992] S.C.J. No. 29, 134 N.R. 289, [1992] 3 W.W.R. 193, J.E. 92-516, 7 B.C.A.C. 81, 67 B.C.L.R. (2d) 273, 71 C.C.C. (3d) 32, 12 C.R. (4th) 133, 15 W.C.B. (2d) 546 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 7, 24(1) Ontario Water Resources Act, R.S.O. 1990, c. O.40 Provincial Offences Act, R.S.O. 1990, c. P.33, s. 131 [page447]

John Pearson, for appellant. Barry D. Laushway and Bryan D. Laushway, for respondent.

The judgment of the court was delivered by

CRONK J.A.: -- I. Introduction

[1] This Crown appeal arises from a court-ordered stay of the prosecution of the respondent, Roger Dale Arcand, on various charges under the Ontario Water Resources Act, R.S.O. 1990, c. O.40 (the "Act") relating to the operation of the City of Brockville's water pollution control plant in the late 1990s. On December 1, 2006, Waugh J. of the Ontario Court of Justice (the trial judge) ruled that the respondent's rights under s. 7 of the Canadian Charter of Rights and Freedoms had been violated as a result of prosecutorial misconduct. He therefore stayed the proceedings as an abuse of process and awarded costs against the Crown. The Crown's appeal from that decision was dismissed by Power J. of the Superior Court of Justice (the appeal judge) on October 15, 2007. The Crown now appeals to this court, with leave under s. 131 of the Provincial Offences Act, R.S.O. 1990, c. P.33 granted by Rosenberg J.A. on December 11, 2007.

[2] For the reasons that follow, I would allow the appeal and order a new trial. In my view, the trial judge's finding of prosecutorial misconduct sufficient to warrant a stay of proceedings and his costs award are unsustainable. Accordingly, the appeal judge erred by upholding the trial judge's decision and a new trial is required. II. Background Facts

[3] The procedural history of this case is complicated and includes a previous appeal to this court. The pertinent chronology of events is as follows.

[4] Commencing in January 2000, the City of Brockville undertook an internal investigation into the operation of its water pollution control plant after receiving information suggesting that water quality and performance test results at the plant had been routinely altered to eliminate results that did not comply with [page448] regulatory requirements set by the Ontario Ministry of Environment (the "MOE").

[5] The respondent was the superintendent of the plant. The City suspended his employment in mid-February 2000 and eventually terminated it on May 2, 2000.

[6] The City provided the results of its investigation to the MOE, thereby triggering a Ministry investigation. On December 5, 2000, the City pleaded guilty to two counts under the Act concerning the discharge of effluent into the St. Lawrence River and the operation of the plant. Following a joint submission on penalty, the City was fined $50,000 in respect of the first count and received a suspended sentence in respect of the second.

[7] On February 2, 2001, the respondent was charged with seven counts under the Act. During the subsequent proceedings in Provincial Offences Court, the defence raised concerns regarding the adequacy of Crown disclosure and sought particulars of the offences charged. Some particulars were ordered and, by September 26, 2001, had been provided to the defence. The trial was set for the weeks of February 4 and 11, 2002.

[8] On December 20, 2001, the Crown successfully moved to amend the information against the respondent, allegedly to reflect the particulars provided, by adding 26 further counts under the Act (the "Additional Charges").

[9] In the result, 33 counts were laid against the respondent for offences allegedly committed during the period January 10, 1996 to July 12, 2000. The counts consisted of (i) one count of discharging a material that might impair water quality; (ii) 28 counts of submitting false or misleading information to the MOE regarding the operation of the plant; and (iii) four counts of failing to comply with the Municipal Sewage Works Certificate of Approval issued in respect of the plant.

[10] The Crown's theory was that the respondent had altered numerous reports of test results to indicate that the operation and performance of the plant were in compliance with MOE requirements when the actual test results revealed a chronic state of non-compliance. In an agreed statement of facts filed in the proceedings against the City, the Crown and the City agreed that:

A pattern of historic non-compliance and deception was identified during the investigation. This deception took many forms, including tampering with samples, selective sampling practices, the pre-screening of samples for compliance, and the alteration of bona fide analytical results to demonstrate a state of compliance when none existed.

[11] On January 16, 2002, the respondent delivered a comprehensive disclosure request to the Crown. Approximately nine days [page449] later, the Crown served the respondent with a notice of its intention to seek a custodial sentence in relation to one of the counts in the information. (1) The first trial

[12] On February 4, 2002, at the commencement of trial in the Provincial Offences Court, the Crown informed the court of the recent discovery of additional materials in the possession of a Crown witness, William Montgomery, the respondent's former supervisor at the plant. These new materials, contained in what the parties referred to as the "Montgomery Binder", were first brought to the Crown's attention shortly before trial when Mr. Montgomery began preparing for his trial testimony.

[13] The trial was adjourned to permit the Crown to review the contents of the Montgomery Binder. Thereafter, disclosure of most of the materials in the Montgomery Binder was made to the defence except for those documents over which the City asserted solicitor-client privilege.

[14] In mid-May 2002, the Crown applied for an order removing the respondent's lead trial counsel, Michael O'Shaughnessy, from the record on the basis of an alleged conflict of interest arising from the fact that Mr. O'Shaughnessy, while acting for the respondent, was also representing the respondent's immediate subordinate at the plant (a proposed Crown witness in the prosecution against the respondent) in separate proceedings. The Crown's application was refused.

[15] The trial recommenced on September 23, 2002. At the opening of trial, the defence applied for an order requiring the Crown to disclose the documents in the Montgomery Binder that were subject to the City's privilege claim. The application was refused. On October 1, 2002, the defence applied to the Superior Court of Justice for a writ of prohibition with certiorari in aid, on the ground that the Crown had breached its disclosure obligations.

[16] On April 14, 2003, Quigley J. of the Superior Court of Justice granted the application and stayed all proceedings against the respondent. He concluded that the Crown had failed to discharge its disclosure obligations, thereby compromising the respondent's right to a fair trial. On December 9, 2004, this court allowed a Crown appeal from that decision, set aside the stay of proceedings and remitted the case back to the Provincial Offences Court for a new trial: R. v. Arcand (2004), 2004 CanLII 46648 (ON CA), 73 O.R. (3d) 758, [2004] O.J. No. 5017, 192 C.C.C. (3d) 57 (C.A.). [page450] (2) The second trial

[17] The Crown obtained an order transferring the second trial to the Ontario Court of Justice. Pre-trial proceedings began on July 28, 2005 and a trial date was set for February 20, 2006.

[18] On October 3, 2005, the trial judge heard a defence application for the production of 22 documents in the Montgomery Binder that the City claimed were privileged. The trial judge reviewed the documents and all but ten of them were eventually produced to the respondent, either on consent or on the direction of the trial judge.

[19] At the outset of trial on February 20, 2006, the defence applied for a stay of the Additional Charges, arguing that they were laid outside the two-year limitation period prescribed by the Act. The Crown resisted the application, in part on the basis that the information against the respondent had merely been amended to ensure that the offences charged reflected the particulars provided to the respondent.

[20] The next day, prior to releasing his ruling on the respondent's stay application, the trial judge held an in chambers meeting with counsel in the presence of a court reporter. During the meeting, the trial judge sought clarification of some of the procedural steps in the case and, based on his review of the record, expressed concerns regarding the Additional Charges. He inquired of defence counsel whether, given the record, it was a "feasible position", or arguable, that the Crown had added the Additional Charges "almost as a punishment" for the earlier defence request for particulars. The trial judge then indicated that he would "entertain a motion to throw the whole thing out on the basis of abuse of process" and stated [para. 26 of [2007] O.J. No. 3920, 34 C.E.L.R. (3d) 47 (S.C.J.)]:

Now, as I said, I would be totally open to that motion and I'll be listening to submissions on both sides. . . . I'll listen very closely and very attentively to a submission that the whole thing goes out the window because you cannot treat applications such as made by the defence here -- in some way deal with it as a punitive measure. And I'm not saying that's what happened, but I am troubled by the way -- the appearance of that. And so I would entertain such a motion if defence wishes to bring it now or at a later date . . .

[21] Two events then occurred. First, based on the above- quoted comments, the Crown requested that the trial judge recuse himself because of an alleged appearance of judicial bias. The trial judge declined to do so. Second, the defence withdrew its application to stay the Additional Charges and, on the basis of alleged prosecutorial misconduct, instead applied for an order under s. 24(1) of the Canadian Charter of Rights and Freedoms [page451] quashing or staying the entire proceedings as an abuse of process and awarding costs against the Crown.

[22] Affidavit evidence was filed and oral testimony from four witnesses was heard on the stay application. The witnesses included Mr. O'Shaughnessy and the Crown prosecutor who had been involved in responding to the defence requests for disclosure and particulars and in amending the information against the respondent. Mr. O'Shaughnessy alleged in his evidence, among other matters, that the Crown conduct complained of was a form of retaliation for his "diligent pursuit" of the case and his "vigorous" requests for particulars and disclosure on behalf of the respondent.

[23] On December 1, 2006, the trial judge ruled that the conduct of the Crown was "so egregious" that to proceed with the prosecution "would be offensive to society's sense of justice". In his opinion, the Crown's "gross misconduct" constituted "unfairness and vexatiousness" of such a degree that it contravened fundamental notions of justice, undermined the integrity of the judicial process and resulted in a "wanton violation" of the respondent's Charter s. 7 rights. Accordingly, the trial judge stayed the proceedings and awarded costs against the Crown in an amount not to exceed $50,000, to be fixed by an assessment officer.

[24] On October 15, 2007, the appeal judge dismissed the Crown's appeal from the trial judge's decision. III. Issues

[25] The Crown advances three issues before this court: (1) Did the appeal judge err by upholding the trial judge's finding of prosecutorial misconduct? (2) Did the appeal judge err by upholding the trial judge's stay order? (3) Did the appeal judge err by upholding the trial judge's costs award against the Crown? [See Note 1 below] IV. Analysis (1) The finding of prosecutorial misconduct

[26] The order of the stay and costs against the Crown was rooted in the trial judge's finding of prosecutorial misconduct [page452] sufficient to constitute an abuse of process and a breach of the respondent's Charter s. 7 rights. Accordingly, the controlling issue on this appeal is whether this finding is sustainable. The Crown submits, on various grounds, that it is not. In particular, it contends that the record reveals reasonable explanations or justification for the impugned Crown conduct.

[27] I conclude that the trial judge's finding of serious prosecutorial misconduct is tainted by palpable and overriding error. Consequently, the appeal judge erred by upholding it and the stay order and costs award that flowed from it. I reach this conclusion for the following reasons.

[28] The trial judge relied on several factors in holding that the Crown had engaged in prosecutorial misconduct sufficient to warrant a stay of proceedings, including (i) the manner in which the Crown handled defence requests for disclosure and particulars throughout the prosecution; (ii) the Crown's amendment of the information to add the Additional Charges; (iii) the Crown's treatment of the City, in contrast to its treatment of the respondent; (iv) the Crown's delivery of a notice of intention to seek a custodial sentence in respect of one of the counts against the respondent; and (v) the Crown's unsuccessful application for an order removing Mr. O'Shaughnessy from the record.

[29] It is unnecessary for the disposition of this appeal to address all the factors cited by the trial judge. As the following considerations demonstrate, when viewed in the context of the full record, many of these factors do not support the trial judge's finding of prosecutorial misconduct. (i) Disclosure and particulars

[30] Both the trial and the appeal judge failed to consider that many of the actions of the Crown attacked by the respondent were sanctioned or authorized by the court.

[31] For example, the trial judge was highly critical of the Crown's approach to disclosure (especially in relation to the Montgomery Binder) and of its response to the defence request for particulars. He termed the Crown's approach to disclosure "less than satisfactory" and suggested that, prior to the second trial, it reflected "almost [a] total lack of adherence to the spirit of the disclosure requirements in R. v. Stinchcombe". [See Note 2 below] The trial judge described the Crown's response to the defence request for particulars as "high-handed, if not insulting". [page453]

[32] But in R. v. Arcand, supra, this court expressly addressed the respondent's complaints about the Crown's disclosure of the contents of the Montgomery Binder. Justice Rosenberg, writing for the court, stated, at paras. 18-20:

[T]he respondent had known since February 2002 that the City was claiming privilege over some of the documents and that these documents were not being disclosed. Thus, since February 2002, the respondent has had time to take steps to obtain production of those documents. Instead, he did nothing and maintained his position that the prosecution was required to disclose documents that it did not have in its possession. . . . . .

Since the documents were not in the possession of the Crown, some procedure similar to the O'Connor procedure would have been the proper way for the defence to have sought their production. [See R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98, 103 C.C.C. (3d) 1]

The Crown could not disclose what it did not have. The documents were not in the Crown's possession. Mr. Rickey [the MOE investigator] acted reasonably and responsibly to ensure continuity of the documents while at the same time respecting the City's assertion of privilege. The City's own investigation may have led to the charges being laid against the respondent and it appears that the City was co-operating with the Ministry. But, that did not make the City an arm of the Crown, so that any document in the possession of the City became subject to the Crown's disclosure obligations.

[33] The trial judge did not refer to Rosenberg J.A.'s comments in his reasons. And while the appeal judge did mention some of them, he nonetheless failed to analyze the trial judge's criticisms of the Crown in light of these comments. Instead, the appeal judge merely stated: "[T]he circumstances before [the trial judge] had changed from what they were when the Court of Appeal dealt with this case." He provided no explanation of the basis for this conclusion. Later in his reasons, when he returned to the issue of Crown disclosure, the appeal judge said only that he did not accept the Crown's submission that the trial judge's decision contradicted this court's decision in R. v. Arcand and that: "In fact, the accused, following the decision of the Court of Appeal, sought the trial court's assistance in obtaining further disclosure and documentary production."

[34] The contents of the Montgomery Binder were provided to the defence several years prior to the second trial, save only for those documents in respect of which the City continued to assert a privilege claim. Production of the privileged documents was the subject of an O'Connor application before the trial judge. Ultimately, after the City substantially narrowed the scope of its privilege claim, production was made of all but ten of the third-party documents at issue. [page454]

[35] Thus, production of that part of the Montgomery Binder that remained controversial by the time of the second trial was dealt with in accordance with this court's reasons in R. v. Arcand, supra. This cannot ground a finding of prosecutorial misconduct or abuse of process.

[36] The respondent submits that, apart from the dispute concerning the Montgomery Binder, the Crown's allegedly improper approach to disclosure was also evident from the way in which it responded to a defence request for disclosure of the original tape and tape recorder used during an interview of the respondent by a City investigator. When the defence raised concerns about the integrity of the tape, the Crown initially maintained that it was not obliged to disclose either the tape or the recording machine because they were in the investigator's possession. Subsequently, the Crown informed the defence that the tape and machine should be sought from the City investigator. The trial judge viewed this Crown conduct as "totally unreasonable" in the circumstances and stated: "This attitude reflects the total lack of co-operation by the prosecution, which is seen in many other examples in the evidence."

[37] It would have been preferable for the Crown to have facilitated the prompt provision of these items to the defence, given that the City investigator was a proposed Crown witness and the interview in question formed part of the Crown's case against the respondent. However, prior to the release of the trial judge's ruling on the respondent's Charter s. 7 application, a police analysis of the original tape (conducted on the consent of counsel) had confirmed the absence of any tampering with the tape. Moreover, the defence was already in possession of a transcribed version of the interview in question.

[38] Consequently, the question of the tape's integrity was eventually resolved without prejudicing the respondent's right to make full answer and defence. In my opinion, while the investigation of the defence concern regarding the tape was scarcely timely, this incident falls far short of the type of egregious state conduct that would justify a stay of proceedings.

[39] Likewise, the trial judge's criticisms of the Crown's response to the defence request for particulars suffer from similar defects. The court had previously adjudicated the request and the particulars ordered were provided by September 26, 2001. There is no suggestion that the Crown resisted any request for particulars thereafter, or that any other request for particulars was outstanding by the time of the second trial.

[40] In his reasons, the trial judge questioned the propriety of certain statements allegedly made by the involved Crown prosecutor (not Crown counsel before the trial judge or this court) to [page455] defence counsel in response to the latter's request for particulars. The trial judge's criticisms of these statements were well-placed. Based on the record before this court, several of the alleged statements, at a minimum, were intemperate and uncivil.

[41] But for the purpose of this appeal, the important points are these. First, even if the defence complaints about the Crown's response to the request for particulars in the early stages of the prosecution were legitimate, they were resolved almost four years before the second trial. Second, many of the particulars and some of the disclosure sought by the defence were denied by the court, including, in respect of the contents of the Montgomery Binder, by the trial judge himself. Accordingly, it appears that at least some of the requested particulars and disclosure were found by the court to be irrelevant, unnecessary or subject to a legitimate privilege claim.

[42] Although the appeal judge described the positions of the parties on this issue in his reasons, he did not evaluate the trial judge's highly critical findings about the Crown's conduct regarding particulars in light of the record.

[43] In summary, based on the appeal judge's reasons, I am unable to conclude that he analyzed the trial judge's findings about the Crown's approach to disclosure and its response to the defence request for particulars in any meaningful way. In particular, the appeal judge undertook no assessment of the Crown's submission that the impugned findings were tainted by palpable and overriding error. Yet these findings were an essential part of the trial judge's reasoning in support of his holdings of prosecutorial misconduct and abuse of process. (ii) Additional charges

[44] In my view, the Crown's decision to amend the information against the respondent to incorporate the Additional Charges also does not anchor a finding of prosecutorial misconduct or abuse of process.

[45] The trial judge initially expressed concerns regarding this Crown decision during the meeting held in chambers on February 21, 2006. At that time, no assertion of abuse of process had been made by the defence. Subsequently, in his reasons in support of his stay decision, the trial judge questioned whether the amendment of the information to add the Additional Charges was "even necessary" and "why it was done with no advance notice to the defence". He eventually described the Additional Charges as "absolutely unnecessary".

[46] A comparison of the seven counts initially laid against the respondent with the Additional Charges indicates that the [page456] Additional Charges do reflect detailed particulars of at least one of the original counts. While it would have been advisable for the Crown to have provided the defence with timely notice of its intention to add the Additional Charges, the record indicates that the court permitted the amendment of the information without any objection by the defence. In particular, at the time of the amendment, the defence raised no complaint of abuse of process.

[47] After noting that the information was amended without any objection from the defence, the appeal judge stated: "In my opinion, it was not necessary to add the 26 additional counts." Later, he added that he did not accept as "convincing" the Crown's argument that it was necessary to add the Additional Charges and expressed the opinion that the trial judge had "properly dealt with this issue". Once again, the appeal judge provided no elucidation of the basis for these conclusory statements. (iii) Treatment of the City and the respondent

[48] The trial judge also relied in support of his finding of prosecutorial misconduct on what he perceived to be the Crown's disparate treatment of the City in contrast to its treatment of the respondent with respect to the offences charged and the Crown's position on penalty. There are several difficulties with the trial judge's use of this factor to bolster his finding of prosecutorial misconduct.

[49] First, the City's position was materially different from that of the respondent. The alleged infractions of the Act first came to light in the City's own investigation, the results of which the City provided to the MOE. The City co- operated fully with the ensuing MOE investigation and subsequently pleaded guilty to two counts under the Act. Moreover, the charges against the City were based on vicarious liability, whereas the Crown alleged that the respondent was the primary offender.

[50] Thus, both the City's conduct and the basis for its legal exposure under the Act differed from that of the respondent. Unlike the respondent, the City was entitled to sentence mitigation based on its co-operation with the MOE and its early guilty plea.

[51] Second, the decision whether charges should be laid or continued against an accused is generally a matter for the prosecutorial authorities, not the courts. (See, for example, R. v. T. (V.), 1992 CanLII 88 (SCC), [1992] 1 S.C.R. 749, [1992] S.C.J. No. 29, 71 C.C.C. (3d) 32.) In the case at bar, the charges against the City and the Crown's position on penalty in relation to those charges were the product of plea resolution negotiations and the exercise of prosecutorial [page457] discretion. These are matters on which the courts should be hesitant to second-guess prosecutors.

[52] Third, the City's guilty plea served a saluatory public purpose. As the trial judge noted, "[A]s a result of the City's plea of guilt to two related charges the public has had an insight into the difficulties with the Brockville Water Pollution Control Plant and can now be assured that steps were taken to rectify any difficulties."

[53] Finally, the prosecutor involved in the City's sentencing hearing testified on the stay application. He outlined the various considerations that led to the joint penalty submission. While another prosecutor might have approached the issue differently, this does not render the offences actually charged, or the Crown's position on penalty in respect of the City, objectionable or abusive.

[54] In all these circumstances, neither the fact of different charges against the City and the respondent, nor the potential for different penalties, supports a finding of prosecutorial misconduct or abuse of process. Although the appeal judge adverted to this issue in his reasons, he did not address the matter on the merits. (iv) Notice of intention to seek imprisonment

[55] The trial judge held that it was "absolutely unnecessary" for the Crown to serve a notice of intention to seek the imprisonment of the respondent because he was already subject to potential jail sentences on some of the offences charged. In the trial judge's view, the fact and timing of the delivery of the notice lent further support to a finding of prosecutorial misconduct and, hence, abuse of process.

[56] With respect, I disagree. The notice in question related to conduct that allegedly occurred at a time when the Act obliged the Crown to provide notice if it intended to seek a term of imprisonment. The lead MOE investigator testified on the stay application that the impugned notice was delivered to preserve the prosecution's option to seek such a penalty if the respondent was convicted on the count in question.

[57] As the Crown submitted before this court, the prosecution had no way of knowing on which counts the respondent might ultimately be convicted. The fact that the respondent faced potential jail sentences on some counts did not render improper the Crown's right to seek a sentence of imprisonment on different counts. As the Crown argued, service of the challenged notice did not oblige the Crown to seek a custodial sentence in respect of the count to which the notice related. Rather, it simply made it possible for the Crown to do so if the circumstances so warranted. [page458]

[58] Once again, although the appeal judge outlined the trial judge's findings concerning the challenged notice, he failed to scrutinize those findings in light of the record and the submissions of counsel. Rather, he appears to have simply accepted the trial judge's findings without any examination of the Crown's claim that they were tainted by legal error. (v) Conclusion concerning factors cited by trial judge

[59] It is well-established that a trial judge's factual findings attract great deference from a reviewing court. See Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31. This deferential approach applies with equal force in constitutional infringement cases. See R. v. Chaisson, 2006 SCC 11, [2006] 1 S.C.R. 415, [2006] S.C.J. No. 11, 206 C.C.C. (3d) 1. But this limitation on the permissible scope of appellate review is displaced where -- as here -- the factual findings or inferences drawn by a trial judge are tainted by palpable and overriding error.

[60] In this case, the trial judge's finding of serious prosecutorial misconduct rested on several factors that do not withstand close scrutiny. The considerations that I have outlined demonstrate that, when viewed in the context of the full record, many of the factors cited by the trial judge, either alone or in combination, do not support his finding of prosecutorial misconduct, let alone "gross" Crown misconduct.

[61] For his part, the appeal judge failed to meaningfully scrutinize the factors used by the trial judge to support his finding of prosecutorial misconduct. This was an error. (vi) Other considerations

[62] The appeal judge's decision is flawed for a second important reason. He stated: "It seems to me that the trial judge concluded from a consideration of the entire history of the prosecution that it simply was not possible for the Court to guarantee a fair trial to the accused because of the conduct of the prosecution."

[63] However, the trial judge's findings of prosecutorial misconduct and abuse of process were not based on trial fairness considerations. The trial judge made no finding that the conduct of the prosecution prejudiced the respondent's fair trial rights. Rather, he held that the past conduct of the Crown was "so egregious that to go forward with this prosecution would be offensive to society's sense of justice" and would "[undermine] the integrity of the justice system". This conclusion flowed from his earlier finding of serious prosecutorial misconduct sufficient [page459] to constitute a Charter s. 7 breach. I have already concluded that this central finding is unsustainable.

[64] I would add one further observation. In support of its request for a stay, the defence filed affidavit materials sworn by Mr. O'Shaughnessy in which Mr. O'Shaughnessy asserted that many of the Crown's impugned actions were undertaken in retaliation for the vigorous defence mounted on behalf of the respondent. In his oral testimony on the stay application, Mr. O'Shaughnessy repeated, and amplified, this claim. He also testified about his experiences and expectations as a senior defence counsel for the purpose of advancing the defence contention that the actions of some of the Crown prosecutors in this case departed from the reasonable standards of conduct required of Crown counsel.

[65] The trial judge's finding of prosecutorial misconduct rested, at least in part, on Mr. O'Shaughnessy's evidence. There appears to have been no objection by the Crown to the admission of this evidence, nor any motion by the Crown to strike any part of Mr. O'Shaughnessy's affidavits. Having reviewed Mr. O'Shaughnessy's evidence, it is my opinion that much of it not only constituted inadmissible opinion evidence, but also amounted to unsupported speculation, innuendo and conjecture regarding the motivations and decisions of Crown counsel. In these important respects, Mr. O'Shaughnessy's evidence did not provide a proper foundation for a finding of prosecutorial misconduct. (2) The stay

[66] The threshold for granting a stay of criminal proceedings is very high. In R. v. Leduc (2003), 2003 CanLII 52161 (ON CA), 66 O.R. (3d) 1, [2003] O.J. No. 2974, 176 C.C.C. (3d) 321 (C.A.), leave to appeal to the S.C.C. refused [2003] S.C.C.A. No. 411, 109 C.R.R. (2d) 187, this court stated, at para. 99:

But the Crown's breach of its obligation to disclose does not automatically entitle an accused to a stay of proceedings under s. 24(1) of the Charter. A stay is a drastic remedy, a remedy of last resort, to be granted only in the "clearest of cases". It should be granted only in those rare cases where compelling an accused to stand trial would violate those fundamental principles of justice that underlie the community's sense of fair play and decency. Or, in the words of L'Heureux-Dubé J. in R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, 130 D.L.R. (4th) 235, at p. 468 S.C.R.: a stay should be granted only "where the prejudice to the accused's right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued."

[67] Thus, a stay may be warranted to remedy unfairness to an individual resulting from state misconduct or, in a "residual" category of cases, where the conduct of the prosecution so contravenes [page460] notions of justice as to undermine the integrity of the judicial process. See Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 CanLII 322 (SCC), [1997] 3 S.C.R. 391, [1997] S.C.J. No. 82, 118 C.C.C. (3d) 443. A stay of proceedings in a case falling within the latter category, however, may be granted only where the impugned conduct shocks the conscience of the community and is so detrimental to the proper administration of justice that it warrants judicial intervention. See, for example, R. v. Power, 1994 CanLII 126 (SCC), [1994] 1 S.C.R. 601, [1994] S.C.J. No. 29, 89 C.C.C. (3d) 1; and R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, [2002] S.C.J. No. 14, 161 C.C.C. (3d) 97.

[68] In this case, both the trial and appeal judges were alive to the applicable principles governing the determination of whether state misconduct amounts to an abuse of process warranting a stay of proceedings. The trial judge concluded that this case fell within the "residual" category of cases in which a stay was warranted because, in his view, the continuation of the prosecution, in light of the "egregious" conduct by the Crown, would offend "society's sense of justice" and "undermine the integrity of the judicial process". He made no finding that the respondent's right to make full answer and defence was irreparably compromised. Nor did I understand the respondent to so contend before this court.

[69] The trial judge's stay order was a discretionary order. The appeal judge properly recognized that it was thus entitled to deference on appeal. The appeal judge could interfere with the trial judge's exercise of discretion only if (i) the trial judge misdirected himself or (ii) the trial judge's decision was "so clearly wrong as to amount to an injustice". See Leduc, supra, at para. 139; and Regan, supra, at para. 117.

[70] The appeal judge was satisfied that the trial judge had not misdirected himself. Although he did not expressly address whether the stay was so clearly wrong as to amount to an injustice, the appeal judge did conclude that a stay was appropriate. Thus, in effect, he held that there was no basis in this case for appellate interference with the stay order.

[71] I disagree. In my view, the trial judge did misdirect himself. Moreover, his order is so clearly wrong that it does amount to an injustice. I say this for three reasons.

[72] First, the only basis for the stay was the trial judge's finding of serious prosecutorial misconduct. However, as I have explained, the trial judge failed to take account of several important considerations that strongly undercut this finding. As a result, his finding of prosecutorial misconduct cannot stand. And because this finding cannot be sustained, the foundation for the stay also collapses. [page461]

[73] Second, as the trial judge recognized, there is a societal interest in having allegations of criminal conduct tried on their merits. See R. v. Arcand, supra, at para. 24. This factor informs the exercise of judicial discretion concerning the granting of a stay of criminal proceedings.

[74] In this case, I agree with Rosenberg J.A.'s observation in his reasons granting the Crown leave to appeal to this court that: "The due administration of justice is implicated when this type of case is not dealt with on the merits because of a misapprehension as to the effect of prosecutorial conduct." Far more serious Crown misconduct than that alleged in this case has been held not to warrant a stay of criminal proceedings. See, for example, Regan, supra; and R. v. Latimer, 1997 CanLII 405 (SCC), [1997] 1 S.C.R. 217, [1997] S.C.J. No. 11, 112 C.C.C. (3d) 193.

[75] Finally, in Tobiass, supra, the Supreme Court of Canada cautioned that for a stay of proceedings to be appropriate in a case falling into the "residual" category, it must appear that the state misconduct at issue is likely to continue in the future, or that the carrying forward of the prosecution will offend society's sense of justice. In this case, the impugned Crown conduct took place, for the most part, during the first trial and prior to this court's review of the stay granted in that trial. By the time of the second trial, a new Crown prosecutor had carriage of the case. There is no suggestion of any impropriety by him. To the contrary, the trial judge indicated that the Crown conduct with which he was concerned was "past conduct" that took place prior to the involvement of the Crown counsel assigned to the second trial. Nor is there any other basis on which to conclude that prosecutorial misconduct would occur in the second trial.

[76] In all these circumstances, it cannot be said that the carrying forward of the prosecution against the respondent will "manifest, perpetuate or aggravate" a course of abusive conduct by the state so as to justify a stay of proceedings. See Tobiass, supra. With respect, to the extent that the appeal judge's reasons may be read as suggesting to the contrary, I conclude that he erred. (3) The costs award

[77] An award of costs in a criminal proceeding is a rare and exceptional remedy. In this case, the trial judge granted this award because he concluded that: "[t]here was gross misconduct on the part of the authorities in charge of the prosecution" that amounted to "a marked and unacceptable departure from the reasonable standards expected of the prosecution". See R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, [2001] S.C.J. No. 79, 159 C.C.C. (3d) 321, at p. 618 S.C.R., p. 356 C.C.C.; [page462] and Leduc, supra, at paras. 157-60.

[78] However, in this case, absent proof of an abuse of process occasioned by prosecutorial misconduct, there was no basis for an adverse costs award against the Crown. There is no suggestion that the costs award can be supported on any other ground. Accordingly, if, as I conclude, the trial judge's finding of prosecutorial misconduct must be set aside, it follows that the costs award against the Crown must also fall. V. Disposition

[79] For the reasons given, I would allow the appeal and set aside the finding of prosecutorial misconduct, the stay of proceedings and the costs award against the Crown. I would also order a new trial in the Provincial Offences Court and, given the passage of time, direct that the new trial be expedited.

Appeal allowed.

Notes

Note 1: Before the appeal judge, the Crown also argued that the trial judge's decision was tainted by a reasonable apprehension of judicial bias. This argument, which was rejected by the appeal judge, was not pursued before this court.

Note 2: 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, [1991] S.C.J. No. 83, 68 C.C.C. (3d) 1.