Court of Appeal for Ontario

Date: 2025-06-04
Docket: COA-24-CR-0140

Panel: Fairburn A.C.J.O., Roberts and Madsen JJ.A.

Between:
His Majesty the King, Appellant
and
Jonathan Tavares, Respondent

Appearances:
Samuel Greene, for the appellant
Alina Sklar, for the respondent

Heard and released orally: May 30, 2025

On appeal from the order of Justice Sheila Ray of the Ontario Court of Justice, dated December 4, 2023.

Reasons for Decision

Background

[1] The appellant was charged with sexual assault pursuant to s. 271 of the Criminal Code of Canada, R.S.C. 1985, c. C-46. This is an appeal from a stay of proceedings for an abuse of process.

[2] The abuse was said to have arisen from the Crown’s premature disclosure of defence materials – filed on a s. 278.92 private records pre-trial application – to the complainant’s counsel before the completion of stage one.

[3] There is no dispute that the Crown’s error in making early disclosure was an innocent slip. Likewise, there is no dispute that complainant’s counsel had neither shared the materials with the complainant nor intended to do so until the appropriate stage of the application process.

Legal Principles

[4] A stay of proceedings under s. 24(1) of the Charter, a drastic remedy in criminal law, is warranted only in the “clearest of cases”: R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at paras. 30-31. State conduct justifies a stay of proceedings in only two situations: 1) when it compromises trial fairness; or 2) when it risks undermining the integrity of the judicial process. This matter was decided under the trial fairness prong.

[5] There are three requirements that must be considered:

1. There must be prejudice to the accused’s right to a fair trial interest or to the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” (Babos, at para. 32);
2. There must be no alternative remedy capable of redressing the prejudice (Babos, at para. 32); and
3. Where there is still uncertainty over whether a stay of proceedings is warranted after steps 1 and 2, the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits” (Babos, at para. 32).

[6] This court has repeatedly said that this type of motion should not be ruled on at the outset of trial, except where the remedy sought is manifest at the outset of the proceedings: R. v. Bero (2000), 151 C.C.C. (3d) 545 (Ont. C.A.), at para. 18. There is good reason for this general rule, which is clear on the face of this record.

Analysis

[7] Turning to prejudice, the trial judge’s determination that there was prejudice is based on speculation. For instance, while the trial judge accepted that the complainant’s lawyer had not shared the application record with the complainant, she formed the view that it would inevitably be shared at some point. There is no evidence to support this conclusion; in fact, the evidence pointed in the opposite direction.

[8] In our view, the early disclosure of the record was nothing more than an irregularity caused by an admitted oversight by the Crown. There was no evidence to support a finding of prejudice, especially at this stage when the application was decided. This is particularly so in circumstances where it is accepted that the complainant had not seen the materials. In our view, the complainant’s counsel acted professionally in the face of Crown counsel’s admitted mistake in disclosing the material. We reject the suggestion that the complainant’s counsel was duty bound to disclose the respondent’s materials to the complainant in these circumstances. She did not disclose them and was under no obligation to do so.

[9] Turning to alternative remedies, there were many lesser ones available. This was a matter that could have been resolved by an order, or even a request, that the materials be returned. There was no reason to doubt the complainant’s counsel’s representation that, up to that point, she had not shared anything with her client. If the materials had simply been ordered returned, as happens from time to time when mistakes of this nature are made, the pre-trial application and the trial could have proceeded efficiently.

Conclusion

[10] There was no basis to stay the proceedings for an abuse of process.

[11] This appeal is allowed. The stay of proceedings is set aside, and the matter is remitted for trial before a different trial judge. This is without prejudice to the respondent to bring an application for a stay of proceedings at the end of trial, assuming an evidentiary foundation can be laid. Out of an abundance of caution, we order that if the complainant’s counsel is still in possession of the application materials, they be returned to Crown counsel and all copies in the possession of the complainant’s counsel, electronic or otherwise, be destroyed.

“Fairburn A.C.J.O.”
“L.B. Roberts J.A.”
“L. Madsen J.A.”

Publication Ban

[1] This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.