WARNING The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1) , (2) , (2.1) , (2.2) , (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18 .
486.6(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 1
COURT OF APPEAL FOR ONTARIO DATE: 20210322 DOCKET: M52115 (C66543) & C66543
Fairburn A.C.J.O., Watt and Huscroft JJ.A.
BETWEEN
Her Majesty the Queen Appellant/Moving Party
and
Hongbo Ke Respondent/Responding Party
Counsel: Philippe G. Cowle, for the appellant/moving party No one appearing for the respondent/responding party
Heard: January 29, 2021 by video conference
On appeal from the order staying the proceedings by Justice Joyce L. Pelletier of the Ontario Court of Justice, dated January 15, 2019.
Watt J.A.:
[1] “What’s the remedy for a witness not attending for their cross-examination?", the trial judge asked. Defence counsel suggested that the charges be stayed. The Crown proposed a material witness warrant and a brief adjournment.
[2] “I'm granting a stay of proceedings" the trial judge announced. And so she did.
[3] The Crown appeals.
[4] These reasons explain why I would allow the appeal, set aside the stay, and order a new trial before a different judge of the trial court.
The Background Facts
[5] Hongbo Ke (the respondent) was charged in an Information with a single count of sexual assault. The Crown elected to proceed by indictment. After an initial election of trial before a judge of the Superior Court of Justice and a request for a preliminary inquiry, the respondent re-elected trial before a judge of the Ontario Court of Justice.
The First Day of Trial
[6] Trial proceedings began on August 29, 2018. The Crown had previously filed an application for an adjournment. Three essential witnesses were not available. The Crown explained that she proposed to adduce the evidence of the complainant on the scheduled hearing dates. If the adjournment were granted, the case could be completed with the evidence of the then unavailable witnesses.
[7] The trial judge did not rule on the Crown's application for an adjournment. The Crown had only recently disclosed video statements of the complainant in related investigations. Both Crown and defence counsel asked for some time to review those statements. The trial judge acceded to the joint request. The proceedings were adjourned to the following day.
The Second Day of Trial
[8] On August 30, 2018, the complainant testified with the assistance of an interpreter. Crown counsel completed her examination-in-chief of the complainant.
[9] Defence counsel resisted commencing his cross-examination the following day. His cross-examination, he anticipated, would exceed one day in length. He did not want the cross-examination interrupted by a lengthy adjournment. The trial judge agreed.
[10] The parties explored continuation dates. The trial judge adjourned the proceedings to January 15-17 and February 12, 2019. She instructed the complainant to return on January 15, 2019. The complainant agreed to do so.
The Subpoena
[11] About two months before the scheduled return date, the complainant was personally served with a subpoena requiring her to return to the trial court on January 15, 2019.
The Trial Resumes
[12] When trial proceedings resumed on January 15, 2019, the complainant did not appear. Crown counsel explained that when staff in the Crown Attorney’s office spoke to the complainant late the previous day, they learned, for the first time, that the complainant would be flying out of Canada on January 15, 2019. She was attending China for a medical reason. She would not be available to resume her testimony as scheduled. Staff in the Crown Attorney's office asked the complainant to send them her travel information. The complainant had not done so by the following morning.
[13] The trial Crown did not learn until the return date of January 15, 2019 that the complainant had sent an email to the Victim Witness Assistance Program in the place of trial on November 2, 2018. In that email, the complainant explained her travel plans on January 15, 2019 and asked that the scheduled appearance be postponed. The email had been diverted to a junk mail folder and was not discovered until January 15, 2019.
The Position of the Crown
[14] The trial Crown sought a brief adjournment of one or two weeks to permit the complainant to re-attend to complete her evidence. On the already scheduled dates, the Crown proposed to elicit evidence from the remaining witnesses to complete the case for the Crown, but for the cross-examination and re-examination of the complainant.
[15] The trial Crown pointed out that the complainant had testified in-chief for about three hours. She had never communicated any unwillingness to continue with her evidence or the prosecution. She had explained well in advance of the return date her absence and the reason for it. The complainant was a student, new to Canada, and unfamiliar with the workings of our legal system.
The Defence Position
[16] The trial judge asked defence counsel:
What's the remedy for a witness not attending for their cross-examination?
[17] Defence counsel responded with a stay of proceedings. He sought a stay on three grounds:
i. compromise of trial fairness;
ii. disbelief of the complainant's explanation; and
iii. the “torturous conditions" in which the respondent had lived while the proceedings remained outstanding.
The Ruling of the Trial Judge
[18] Neither the Crown nor the defence adduced any evidence on any aspect of the issue. No authorities were collected. None were proffered. The trial judge did not retire to consider what to do. She simply announced:
I'm going to grant the stay. The proceedings against Mr. Hongbo Ke, information 173947, because [the complainant] has not attended for her cross-examination on a trial that was commenced August 30 th , 2018 and in the face of a subpoena leaves the country the day before she's scheduled to attend for trial is, is actually most prejudicial, in my view, to her cause in terms of granting an adjournment for this trial. I just, I’m of the opinion that it was, she completely ignored the subpoena and left the country to avoid attending for her cross-examination.
[19] A short time later, the trial judge returned to the courtroom. She added:
Sorry, in my upset and focused on the recognizance I, I didn't endorse the information. So I'm a little, I'm going to need some advice from counsel in terms of am I entering a not guilty finding and a stay? It's just a stay of the proceedings.
The Appellate Proceedings
[20] On February 11, 2019, after personally serving the respondent, the Crown filed a notice of appeal against the trial judge's order staying proceedings against the respondent.
[21] Two days later, the respondent emailed the Crown. He expressed hope that the Crown would reconsider pursuit of its appeal. The respondent was doubtful that he would be able to retain counsel. He suggested he would represent himself on the appeal.
[22] About a month later, the Crown advised the respondent of its intention to pursue the appeal whether the respondent had counsel or represented himself. The Crown underscored the importance of the respondent keeping the court and Crown aware of his address and contact information.
[23] Within days of the Crown's communication of its intention to pursue the appeal, the respondent retained counsel.
[24] On December 12, 2019, the Crown perfected its appeal. The court listed the appeal for argument on May 22, 2020.
The Appeal is Relisted
[25] When COVID-19 intervened, the court asked the parties whether the appeal could proceed in writing. Subsequent exchanges revealed that counsel for the respondent was having difficulty reaching his client to obtain instructions. Despite counsel's repeated efforts through several different channels of communication, this difficulty persisted. In late August 2020, counsel applied to be removed from the record as solicitor of record for the respondent. The order was granted.
[26] The appeal was relisted for argument on January 29, 2021. Notice about the time and manner of the hearing was sent to the respondent's most recent addresses. He was advised of the time of the remote hearing. He was furnished with details about how he could participate in it. The Crown received no response. The court received no response.
The Motion for Directions
[27] As a result of the respondent's failure to answer any requests to participate in person or by counsel to the appeal, the Crown filed a notice of motion returnable on the date set for the hearing of the appeal. In that motion, the Crown sought a direction under r. 19 of the Criminal Appeal Rules , S.I./93-169 that the appeal be heard in the absence of the respondent.
[28] We heard submissions from the Crown on the motion. After retiring briefly, we advised Crown counsel that we would grant the motion with reasons to follow and proceed to hear the appeal on its merits. At the conclusion of that argument, we reserved our decision on the merits of the appeal.
[29] In the reasons that follow, I will explain first why I consider this an appropriate case in which to proceed in the absence of any participation by the respondent. Then, I will turn to an assessment of the merits of the appeal.
Disposition of the Motion
[30] In my respectful view, the interests of justice warrant an order that the appeal be heard in the absence of any participation by the respondent.
[31] The trial proceedings with which we are concerned originate in allegations of serious sexual offences against a vulnerable complainant. The accusations were of four separate incidents on different days. Two of those incidents involved non-consensual unprotected sexual intercourse. The complainant also described continued surveillance of her daily activities by the respondent. The sexual contact had been initiated by the respondent almost immediately after the complainant's arrival in Canada.
[32] The order under appeal was made when the Crown sought a brief adjournment after learning the previous day of the unavailability of the complainant to complete her evidence. Other witnesses were available. The Crown proposed to elicit its evidence leaving only the remaining portion of the complainant's testimony to complete the case for the Crown. There was no evidence before the trial judge that the complainant no longer wished to participate in the trial process. Or that she wished to abandon her allegations of serious sexual misconduct by the respondent.
[33] It is well-established that entry of a stay of proceedings is a remedy reserved for the “clearest of cases". It is not a typical response to an application for a brief adjournment because a material witness has failed to reappear four and one-half months after she first testified. Typical or otherwise, a review of the circumstances surrounding its entry in this case reveal that the appeal has substantial merit.
[34] The appeal in this case was initiated within 30 days of the entry of the stay. The respondent was served personally. He received not only the notice of appeal, but also a substantial set of materials explaining his obligations and available options for representation as the respondent. The Crown made it clear to the respondent from the outset that the appeal would be pursued whether the respondent participated or declined to do so.
[35] At one point, the respondent suggested that he would be self-represented. Later, he retained counsel. Despite counsel's repeated efforts to maintain contact and obtain instructions, the respondent did not reply. Counsel was removed from the record. Repeated communications from the Crown about scheduling and how the respondent could participate in the appeal, including details about the hearing, went unanswered. The respondent has returned to China, thus is not amenable to the process of this court. The only reasonable inference is that he no longer wishes to participate in this appeal.
[36] In the result, I am satisfied that this is a case in which we should determine the merits of the appeal despite the lack of participation by the respondent.
The Appeal
[37] The Crown advances four grounds of appeal. None require a canvass of the evidence adduced at trial. Brief reference to some aspects of the proceedings that led to entry of the stay is sufficient.
The Grounds of Appeal
[38] The Crown says that the trial judge erred:
i. by failing to exercise her discretion judicially in denying the Crown's request for a brief adjournment of trial proceedings;
ii. by staying the proceedings in breach of the rules of natural justice;
iii. by failing to provide reasons sufficient to permit meaningful appellate review; and
iv. by staying the proceedings in the absence of any evidence warranting such an order.
[39] This appeal falls within s. 676(1) (c) of the Criminal Code , R.S.C., 1985, c. C-46 . Unlike a Crown appeal from acquittal under s. 676(1)(a) of the Criminal Code , this appeal from a stay of proceedings entered by a trial court is not limited to questions of law alone.
[40] For discussion purposes, I will collapse the grounds of appeal into two. The first focuses on the trial judge's decision to refuse the adjournment application made by the Crown. The second relates to the remedy provided for the complainant's non-attendance: a stay of proceedings.
Ground #1: Refusal of the Adjournment
[41] When trial proceedings resumed on January 15, 2019 after an adjournment of four and one-half months, the Crown sought a brief adjournment of one or two weeks so that she could contact the complainant and determine her availability to complete her evidence. The Crown had only learned that the complainant would not be present the previous day when advised of that fact by staff in the Crown Attorney's office.
[42] The Crown proposed to use the time set aside for the continuation of the proceedings to complete the case for the Crown except for the conclusion of the complainant's evidence. In fact, the complainant had advised the Victim Witness Assistance Program two and one-half months earlier of her scheduling conflict, but her email was diverted to a junk mail folder and only located the morning the trial was scheduled to resume. The complainant had been re-served with a subpoena. Nothing in the record suggested that the complainant would not subsequently appear or that she no longer wished to participate in trial proceedings.
[43] The trial judge asked defence counsel about the remedy for the failure of a witness to attend for cross-examination. Counsel proposed a stay of proceedings. The Crown, when asked, sought a material witness warrant and a brief adjournment of proceedings to determine the complainant's availability after the Crown's case was otherwise completed.
[44] The trial judge did not invite further submissions. She did not retire to consider her decision. She refused to issue a material witness warrant and concluded that the complainant “left the country to avoid attending for her cross-examination". The trial judge also cited the “very difficult, difficult circumstances" of the appellant's release as an “emotionally torturous" experience. She expressed her “upset" at what had happened.
[45] The trial judge dismissed the Crown's proposed remedies and entered a stay of proceedings.
The Arguments on Appeal
[46] The appellant contends that the trial judge erred in failing to grant the Crown's request for a brief adjournment when the complainant failed to re-attend. The trial judge's decision was based on factual findings that were devoid of any evidentiary foundation and lacked any principled basis.
[47] The Crown readily accepts that trial judges have a wide discretion in determining whether to grant or refuse an adjournment request. Likewise, their exercise of that discretion is subject to considerable deference on appeal. But that deference, the Crown says, gives way when the discretion is exercised unreasonably, or when its exercise is flawed by legal error. Both occurred here.
[48] In this case, the Crown continues, the trial judge failed to consider, much less apply, the factors articulated by the Supreme Court of Canada 65 years ago in Darville v. The Queen (1956) , 116 C.C.C. 113 (S.C.C.) when an adjournment is sought because a material witness has failed to attend. The trial judge failed to provide the trial Crown with the opportunity to demonstrate satisfaction of the Darville requirements. This failure, in both its aspects, amounted to legal error.
[49] What is more, the appellant argues, the decision was unreasonable.
[50] The trial judge based her conclusion on two findings of fact. First, she concluded that the circumstances of the respondent's release were “very difficult”. She adopted, as her own, the “torturous" characterization advanced by defence counsel. Second, she found that the complainant used her medical reason as an excuse to mask her true purpose — to avoid cross-examination.
[51] Neither of these findings had any evidentiary support. Beyond defence counsel's statement about the respondent’s travails on release, the record is bankrupt of any evidentiary support for the characterization adopted by the trial judge. And there was not a scintilla of evidence to support the finding that the complainant was absent because she sought to avoid cross-examination. The complainant made no effort to avoid re-service of the subpoena. She was unfamiliar with Canada's legal system and had communicated her conflict over two and one-half months earlier.
The Governing Principles
[52] Section 571 of the Criminal Code permits a provincial court judge acting under Part XIX to adjourn a trial from time to time until the trial is finally terminated. Like other adjournment provisions in the Criminal Code , such as ss. 537(1) (a) and 645(2) , s. 571 contains no exhaustive or illustrative list of factors the judge is required or entitled to consider in determining whether to grant or refuse an adjournment.
[53] In Darville , at p. 117, the Supreme Court of Canada identified three factors for a court to consider in determining whether to grant an adjournment required to procure the attendance of a material witness:
i. that the absent witness is a material witness in the case;
ii. that the party requesting the adjournment has not been guilty of laches or neglect in failing to endeavour to procure the witness’ attendance; and
iii. that there is a reasonable expectation that the witness' attendance can be procured at the future time to which the party proposes the trial be adjourned.
See also R. v. G. (J.C.) (2004) , 189 C.C.C. (3d) 1 (Que. C.A.), at para. 10 , leave to appeal refused, [2004] C.S.C.R. No. 456.
[54] To refuse an adjournment without giving the requesting party the opportunity to demonstrate satisfaction of the relevant criteria is an error of law: Darville , at p. 117; G. (J.C.) , at para. 11 .
The Principles Applied
[55] I would give effect to this ground of appeal. In my respectful view, the trial judge’s decision to refuse the adjournment request was at once legally flawed and patently unreasonable.
[56] In this case, the trial judge was faced with a request from the Crown for a brief adjournment so that the complainant could be contacted about her availability to complete her testimony. The Crown proposed completing her case but for the balance of the complainant's evidence in the days that had already been set aside to conclude the trial. The proceedings had been adjourned earlier at the request of defence counsel, who had refused to begin his cross-examination of the complainant when she had completed her evidence in-chief.
[57] Decisions on applications for an adjournment involve the exercise of judicial discretion. They require consideration of all the circumstances to determine what is in the best interests of the administration of justice. The exercise of discretion must be principled. It must be firmly grounded in the circumstances disclosed in the case at hand. The interests of justice are a joint venture, not a sole proprietorship. They are not for the sole use of one party to the exclusion of the other.
[58] In this case, the Crown's request for a brief adjournment was based on the absence of a material witness who had already testified in-chief. The controlling principles for the exercise of that discretion were those of Darville . It was an error of law for the trial judge to dismiss the adjournment request without providing the Crown with an opportunity to demonstrate that it had met the requirements of Darville . And it was equally an error not to consider those principles.
[59] The complainant was a material witness. She had given evidence of a series of sexual assaults by the respondent over several days. The allegations included two events of non-consensual unprotected sexual intercourse. The complainant was new to Canada, unfamiliar with our legal system, a student intending to pursue a graduate degree. She had communicated her scheduling conflict to the Victim Witness Assistance Program two and one-half months earlier. That her communication was directed to junk mail was scarcely her fault.
[60] The complainant had been advised by the trial judge of her obligation to return when trial proceedings were scheduled to resume four and one-half months after she had completed her examination in-chief. She agreed. She was re-served with a subpoena two months before the scheduled return date. The Crown contacted her the day before her scheduled re-appearance and only learned then of her plan to leave Canada on the return date for a medical reason. The Crown asked for a copy of her travel itinerary, but she had not provided it by the return date. In hindsight, the Crown should have contacted the complainant earlier about her re-attendance. But its failure to do so could scarcely be described as laches or neglect.
[61] The record reveals no basis for an inference that the complainant's absence was permanent. The reason advanced for the absence — a medical reason — was not suggestive of any permanence. The complainant was new to Canada and attending graduate school at a Canadian university. She had already given evidence over an entire day. There was no basis to conclude that she would not re-attend to complete her testimony. At the very least, a brief adjournment would have enabled the Crown to confirm the complainant's position. If she made it clear that she had no intention of reappearing, the respondent would be the beneficiary of the adjournment.
[62] In addition to the legal errors I have just identified, I am also satisfied that the trial judge’s decision to refuse the Crown's adjournment request was unreasonable.
[63] The trial judge made two findings of fact that were the linchpins in her decision to refuse the adjournment and enter a stay of proceedings. She found, as defence counsel had submitted, that the respondent had been subjected to “torturous" bail conditions and she concluded that the complainant's explanation for her absence — a medical reason — was an excuse to mask her true reason — to avoid cross-examination.
[64] In my respectful view, neither finding is supported on the record of the proceedings.
[65] With respect to the first finding, the respondent appears to have been released on his own recognizance on the day of his arrest. The conditions in his recognizance are typical of those routinely included in cases of this nature. The only differences appear to be in the requirements that he deposit his passport and wear a monitoring device. The monitoring device was ordered removed by the trial judge on August 31, 2018. The respondent was not subject to house arrest or a curfew. Nor was he detained in custody. Trial proceedings were timely, the four and one-half month adjournment at his counsel's request.
[66] The second finding — that the complainant claimed a medical reason to avoid cross-examination — also finds no support in the evidence. The complainant advised the Victim Witness Assistance Program of her conflict two and one-half months before the return date. She accepted service of a subpoena two weeks later. She was unfamiliar with our criminal justice system. When contacted by the Crown the day before the return date and her departure, there was no suggestion that she would not reappear. It would have been preferable for her to have provided her travel itinerary, as requested by the Crown, but her failure to do so cannot support the conclusion drawn by the trial judge.
[67] On this basis alone, I would set aside the stay and order a new trial.
Ground #2: Entry of a Stay of Proceedings
[68] The second ground of appeal alleges error in the entry of a stay of proceedings as the remedy for the failure of the complainant to re-attend the trial proceedings to complete her testimony.
[69] The circumstances in which the stay was entered have already been canvassed and need not be repeated. A brief reference to the arguments advanced by the appellant will provide a suitable frame for the discussion that follows.
The Arguments on Appeal
[70] The appellant says that a stay of proceedings is an extreme remedy, reserved for the clearest of cases. Its entry in this case frustrated the truth-seeking process and deprived the complainant and the public of a trial and an adjudication on the merits. It is tantamount to an acquittal without a trial.
[71] In this case, the appellant continues, the proceedings that culminated in entry of the stay were procedurally unfair, lacking in the essentials of natural justice. The Crown received no meaningful notice of the application for a stay of proceedings and was not afforded any meaningful opportunity to respond to the legal arguments or factual assertions put forward in support of the application by defence counsel.
[72] The appellant points to another aspect of procedural fairness as lacking in these proceedings, one that, in its view, amounts to reversible error. The trial judge failed to provide reasons sufficient to permit meaningful appellate review of her decision to stay proceedings. Read as a whole, in light of the circumstances before her, the positions of the parties, and the issues in play, the reasons do not reveal that the trial judge seized the substance of what was before her. She gave no reasons for making adverse findings against the complainant and adopted, without more, the emotive language of defence counsel. What was said is unrevealing of any consideration of less drastic remedies than a stay of proceedings, or of the basis for entry of the stay.
[73] At all events, the appellant submits, the circumstances of this case fall well short of what is required to warrant a stay of proceedings. This was not the clearest of cases. There was no evidence of any prosecutorial misconduct. The proceedings were timely. Nothing done or omitted compromised the respondent's right to make full answer and defence. If any prejudice resulted from the complainant's failure to re-attend on the resumption of trial proceedings, alternative remedies were available. Completion of the balance of the case for the Crown. A brief adjournment to determine the complainant's availability to re-attend. And if she were unwilling or failed to attend, striking her evidence from the case for the Crown. A fair trial remained viable. But the trial judge failed to engage in any balancing of the interests, as the authorities governing stays of proceedings require.
The Governing Principles
[74] A stay of proceedings is the most drastic remedy a criminal court can order. This is so because it halts the prosecution of an accused. A stay of proceedings frustrates the truth-seeking function of a criminal trial. It deprives the public of the opportunity to see justice done on the merits. Victims of crime are deprived of their day in court: R. v. Babos, 2014 SCC 16 , [2014] 1 S.C.R. 309, at para. 30 , citing R. v. Regan, 2002 SCC 12 , [2002] 1 S.C.R. 297, at para. 53 .
[75] However, courts recognize that there are some cases in which a stay of proceedings for an abuse of process will be warranted. These cases are rare. It is only “the clearest of cases” when a stay of proceedings will be warranted: Babos , at para. 31 , citing R. v. O'Connor , [1995] 4 S.C.R. 411, at para. 68 . At bottom, each assertion of an abuse of process, thus each claim for a stay of proceedings, is rooted in state conduct.
[76] In general, stays of proceedings for an abuse of process will be warranted in two categories of cases:
i. where the state conduct compromises the fairness of an accused's trial (the main category); and
ii. where the state conduct creates no threat to trial fairness but risks undermining the judicial process (the residual category).
See Babos , at para. 31 , citing O'Connor , at para. 73 .
[77] The test to determine whether a stay of proceedings should be entered is the same for both categories. It consists of three requirements:
i. prejudice to an accused’s right to a fair trial, or the integrity of the justice system that will be manifested, perpetuated, or aggravated through the conduct of the trial or its outcome (the prejudice element);
ii. absence of an alternative remedy capable of redressing the prejudice (the remedy element); and
iii. in cases of uncertainty after consideration of elements i and ii, an assessment of the balance between the interests favouring entry of a stay, such as denouncing misconduct and preserving the integrity of the justice system, against society's interest in a final decision on the merits (the balancing element).
See Babos , at para. 32 , citing Regan , at paras. 54, 57 . See also Canada (Minister of Citizenship and Immigration) v. Tobiass , [1997] 3 S.C.R. 391, at paras. 91-92 .
[78] For cases in the main category, the question involved in the prejudice element is whether the accused's right to a fair trial has been prejudiced by the state conduct and whether that prejudice will be carried forward through the conduct of the trial. The focus is on whether there is ongoing unfairness to the accused: Babos , at para. 34.
[79] For cases in the residual category, the prejudice element is concerned with whether the state conduct, usually but not always misconduct, offends societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would harm the integrity of the justice system: Babos , at paras. 35, 37 ; Tobiass , at para. 91 .
[80] In connection with the remedy element, the question is whether some remedy short of a stay is capable of redressing the prejudice. The spectrum of available remedies depends on the nature of the prejudice involved. Where the main category is implicated, with its concern about trial fairness, the focus is on restitution of an accused's right to a fair trial. For the residual category, where the claim has to do with prejudice to the integrity of the justice system, the focus is on whether something less than a stay will adequately dissociate the justice system from the state conduct going forward: Babos , at para. 39 .
[81] The balancing element assumes added importance for cases that invoke the residual category. The task of the court is to decide which of two options better protects the integrity of the justice system: staying the proceedings or having a trial despite the challenged conduct. Relevant factors include but are not limited to:
i. the seriousness of the state conduct;
ii. the systemic or isolated nature of the conduct;
iii. the circumstances of the accused;
iv. the offences charged; and
v. society’s interest in a trial on the merits.
See Babos , at para. 41 .
[82] An accused who seeks a stay under the residual category faces an onerous burden. This follows from the combined effect of the “clearest of cases” threshold and the balancing of societal interests that must take place in such cases. Cases warranting a stay will be “exceptional” and “very rare". A stay will be entered only where the affront to fair play and decency is disproportionate to society’s interest in the effective prosecution of criminal cases: Babos , at para. 44 ; Tobiass , at para. 91 ; and R. v. Conway , [1989] 1 S.C.R. 1659, at p. 1667.
The Principles Applied
[83] As I will explain, I would give effect to this ground of appeal. Simply put, neither the circumstances of the case nor the governing legal principles support entry of a stay of proceedings as the appropriate remedy for the complainant's failure to re-attend for the resumption of trial proceedings.
[84] This case does not involve any allegation of constitutional infringement. The proceedings were timely. There was no tenable allegation of a breach of the right to make full answer and defence. There was no reason to conclude that the respondent would not be afforded the opportunity to cross-examine the complainant at a later date. Recall that the cross-examination could have been commenced on the day following the complainant's evidence in-chief, but was delayed by four and one-half months due to the respondent's insistence on the grounds of trial fairness. Other witnesses were available and sufficient time allotted to complete their evidence. But for the intransigence of defence counsel, there was no reason their evidence could not have been adduced.
[85] In the absence of any constitutional infringement to ground a claim for the remedy of a stay of proceedings, I turn to the availability of the doctrine of abuse of process as a potential source for the remedy afforded.
[86] At bottom, abuse of process involves state conduct that compromises the fairness of an accused's trial or risks undermining the integrity of the judicial process.
[87] In this case, it is debatable whether any state conduct is implicated.
[88] The complainant's failure to re-attend can scarcely be laid at the feet of the state. She was re-subpoenaed two months before the resumption of trial proceedings. She agreed to return at the conclusion of her evidence in-chief. There is no suggestion that the state colluded in her absence. The trial judge's conclusion that the complainant's failure to attend was due to her wish to avoid cross-examination is at best tenuous, perhaps better said, speculative.
[89] The trial judge's eager grasp of defence counsel's characterization of the respondent's “torturous” existence under the conditions of his release order moves no freight in the abuse of process analysis. The terms of the release were commonplace. No house arrest. No curfew. And the electronic monitoring term was removed by the judge herself.
[90] This was not “the clearest of cases” as the authorities demand for entry of a stay of proceedings. There was no state conduct offensive to societal notions of fair play and decency. A witness did not show up in accordance with her subpoena. For her own reasons. Sometimes, this happens. It shouldn’t, but it does. But it is not cause to invoke the most drastic of remedies to halt the prosecution. That the judge was displeased — in her own words, “upset" — affords no basis for a stay of proceedings.
[91] Other remedies short of a stay of proceedings were available. Use the court time to hear the balance of the case for the Crown. Direct the Crown to determine the availability of the complainant. Depending on the response, reschedule the proceedings. Consider any applications that may arise out of the response. If the complainant fails to attend, consider the remedy.
[92] In this case, the trial judge did not apply the test that determines whether a stay of proceedings was warranted. Her findings of fact about the complainant's motive for failing to attend and the respondent's “torturous” experience are at best tenuous, if not entirely speculative. And there was no balancing of interests, as required by Babos , at para. 41 .
[93] In my view, the stay of proceedings must be set aside.
Disposition
[94] For these reasons, I would allow the appeal, set aside the stay of proceedings, and order a new trial to be held before a different judge of the trial court.
Released: March 22, 2021 “JMF”
“David Watt J.A.”
“I agree. Fairburn A.C.J.O.”
“I agree. Grant Huscroft J.A.”
