Court of Appeal for Ontario

Citation: R. v. Young, 2015 ONCA 926 Date: 2015-12-29 Docket: C60132

Before: Juriansz, Watt and Roberts JJ.A.

Between:

Her Majesty the Queen Appellant

and

Robert Young Respondent

Counsel: Brian G. Puddington, for the appellant Robert Sheppard, for the respondent

Heard: December 18, 2015

On appeal from the judicial stay of proceedings entered on February 11, 2015 by Justice A.T. McKay of the Ontario Court of Justice.

Endorsement

[1] The Crown appeals from the trial judge’s stay of all charges against the respondent. The trial judge stayed the proceedings on February 11, 2015 when Crown counsel failed to appear on time for the continuation of the trial against the respondent on charges of possession for the purpose of trafficking of marijuana and possession of a stolen laptop.

[2] At 10:00 a.m. when the trial was fixed to resume, the trial Crown went to speak to a sentencing matter in the Superior Court. She sent another Crown counsel to request on her behalf that the trial be held down for thirty minutes. The trial judge held the trial down for fifteen minutes and stated that he wanted to hear the trial Crown’s explanation for her absence. The trial judge told assisting Crown counsel that he should be prepared to continue the trial if the trial Crown did not appear at 10:15 a.m. When the court resumed at 10:15 a.m., no Crown counsel was present. The trial judge immediately stayed the charges on his own initiative. Assisting Crown counsel returned to court at 10:16 a.m. and the trial Crown arrived at 10:22 a.m.

[3] The fresh evidence shows that the sentencing matter arose quickly as a result of a guilty plea and had to proceed on February 11 so that the accused in this case could be admitted to a treatment program. The trial Crown, who had carriage of the file, had good reason to consider it urgent. However, as the trial judge observed, “that doesn’t mean that she can simply ignore her obligation here”.

[4] Efficient trial scheduling is incompatible with counsel deciding for themselves the priority of conflicting matters. The current version of the Practice Direction concerning dates in the Superior Court and Ontario Court of Justice is “intended to ensure that trials, hearings and appeals are scheduled on the basis of chronological order in which lawyers make their commitments to appear in Court.” To achieve that objective it provides:

By agreeing to a trial or hearing date, a lawyer is presumed to have made a commitment to appear on that date and to be bound not to make any other commitments that would make the lawyer’s appearance on that date impossible.

[5] The trial judge quite properly considered the trial Crown’s first obligation was to ensure the trial continued as scheduled. Faced with the conflict, she should have arranged to have another Crown counsel deal with one matter or the other.

[6] Nevertheless, the appeal must be allowed. The trial judge could express his displeasure, but he erred by staying the proceedings. In this case, there was no prejudice to the respondent’s right to a fair trial and the continuation of the trial after the Crown’s unexcused absence would not have diminished the integrity of the justice system. As such, this was not one of those clearest of cases in which a stay is warranted: R. v Babos, 2014 SCC 16.

[7] The appeal is allowed, the order staying the proceedings is quashed and the matter remitted for a new trial.

“R.G. Juriansz J.A.” “David Watt J.A.” “L.B. Roberts J.A.”