WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. Identity of offender not to be published. —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. Identity of victim or witness not to be published. — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. No subsequent disclosure. — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. Offences. — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Court Information

Court File No.: Orangeville 12-40 Y

Date: October 31, 2013

Ontario Youth Court of Justice Central West Region

Between:

Her Majesty the Queen

— and —

N.R. (A Young Person)

Before: Justice Richard H.K. Schwarzl

Heard on: September 26, October 7, and October 31, 2013

Reasons for Ruling released on: October 31, 2013

Counsel:

• Mr. Robert Fetterly, Q.C. for the Crown
• Ms. Carrie Bellan for the Accused

SCHWARZL, J.:

RULING:

RE ABUSE OF PROCESS APPLICATION FOLLOWING ARRAIGNMENT ON TWO COUNTS OF SECTION 271, CRIMINAL CODE

1.0: INTRODUCTION

[1] The Accused, N.R., was born […], 1995 and is currently 17 yrs old. In 2012 Information 12-40Y was sworn. It alleges that between February 1, 2008 and August 31, 2009, the Accused committed a total of thirteen crimes against his two younger brothers N.R.(1) and R.R. as follows:

Count #	Complainant	Alleged Criminal Code Offence
1	N.R.(1)	271
2	N.R.(1)	151(a)
3	N.R.(1)	279(2)
4	N.R.(1)	271
5	N.R.(1)	151(a)
6	N.R.(1)	152
7	N.R.(1)	279(2)
8	R.R.	271
9	R.R.	151(a)
10	R.R.	152
11	R.R.	271
12	R.R.	271
13	R.R.	271

[2] The Accused was arraigned on two counts of section 151 and two counts of 152 (counts 2, 6, 9 and 10). No action was taken regarding any of the other counts. The first day of trial was consumed by the evidence of N.R.(1). His evidence disclosed complaints of forced fellatio, forced sodomy, and threats not to tell, all allegedly done repeatedly and on different days. His evidence and the dates set out in the Information showed that the Accused was less than fourteen years of age at all material times.

[3] At the conclusion of N.R.(1)'s testimony, both counsel discovered for the first time that section 150.1(3) of the Criminal Code appeared to apply to this case. Section 150.1(3) of the Criminal Code states:

Exemption for accused aged twelve or thirteen

(3) No person aged twelve or thirteen years shall be tried for an offence under section 151 or 152 or subsection 173(2) unless the person is in a position of trust or authority towards the complainant, is a person with whom the complainant is in a relationship of dependency or is in a relationship with the complainant that is exploitative of the complainant.

[4] Upon concluding that the Accused should not have been arraigned on counts 2, 6, 9 and 10 in light of section 150.1(3), the Crown entered a stay of these charges pursuant to section 579 of the Criminal Code. Following the Crown stay, I gave written reasons for dismissing a defence application asking me to find that the Crown's stay amounted to an abuse of process.

[5] N.R. was then arraigned upon two charges under section 271 of the Criminal Code from the original Information. Following pleas of not guilty to these two counts, I was asked by the defence to stay the present proceedings on the basis that the prosecution of N.R. amounts to an abuse of process in light of Crown stay on counts 2, 6, 9 and 10.

2.0: POSITIONS OF THE PARTIES

[6] The defence position is that although the Crown in this case was not acting upon any improper motive by prosecuting counts 2, 6 9 and 10, it would be fundamentally unfair to the Accused to now stand trial on two other counts. They submit that the community's sense of fair play and the integrity of the judicial system would be undermined if any further prosecution goes forward.

[7] The Crown position is that in all of the circumstances a trial on two counts of sexual assault does not cause any irreparable prejudice to the Accused and prosecution of these two counts will not adversely affect the integrity of the judicial system.

3.0: APPLICABLE LEGAL PRINCIPLES

[8] A judicial stay of proceedings permanently terminates proceedings against an accused person on those charges and is tantamount to an acquittal: R. v. Tobiass, [1997] S.C.J. No. 82 (S.C.C.). A judicial stay may be granted whether a Charter-protected right has been violated or not: R. v. Jewitt, [1985] S.C.J. No. 53 (S.C.C.).

[9] One basis upon which a judicial stay may be granted is the Court finds an abuse of process by prosecutorial or state action. An abuse of process arises where a prosecution is conducted in such a manner as to either prejudice the accused person's fair trial interests, or the integrity of the judicial process has been undermined or eroded by that conduct: R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297 (S.C.C.); R. v. Nixon, 2011 SCC 34, [2011] S.C.J. No. 34 (S.C.C.); and R. v. M.T., 2013 ONCA 476, [2013] O.J. No. 3428 (C.A.).

[10] Where the state conduct causing an abuse of process is not egregious, it will be necessary to balance to any affront to decency and fair play caused by such conduct against the societal interest in having a final decision on its merits: R. v. Regan, supra; R. v. Zarinchang, (2010), 2010 ONCA 286, 99 O.R. (3d) 721 (C.A.).

[11] Where an abuse of process has been established, a judicial stay of proceedings will only be appropriate when (a) the prejudice caused by the abuse in question will be manifested, perpetuated, or aggravated through the conduct of the trial or by its outcome; and (b) no other remedy is reasonably capable of removing that prejudice: R. v. Nixon, supra.

[12] As a general matter, the Crown laying successive charges or re-instituting proceedings are not per se necessarily an abuse of process: R. v. Scott, [1990] S.C.J. No. 132 (S.C.C.). However, where new or re-instituted proceedings amount to an abuse of process, a judicial stay may be appropriate: R. v. Parkin, (1986), 28 C.C.C. (3d) 252 (Ont. C.A.); R. v. Humenjuk, [2001] O.J. No. 5684 (S.C.J.).

[13] Because of its drastic nature, a judicial stay of proceedings must only be granted in the clearest of cases: R. v. O'Connor, [1995] S.C.J. No. 98 (S.C.C.). Furthermore, the burden of proof in establishing an abuse of process rests with the defendant: R. v. O'Connor, supra.

4.0: ANALYSIS

4.1: General

[14] I consider a number of important circumstances. First, the circumstances of the alleged offences are very serious. Second, although numerous offences were charged, the Crown was of the honest, but erroneous, view that the charges under sections 151 and 152 of the Code were properly available and were the best ones to proceed upon from their point of view. In other words, the Crown was acting in good faith throughout. Third, given the evidence in-chief of N.R.(1) there were reasonable grounds to lay all of the charges on the multi-count Information. Fourth, the evidentiary foundation for all counts rests upon the evidence of the two complainants. Fifth, neither counsel turned their minds to, or appeared aware of, section 150.1(3) prior to N.R.(1) completing his evidence on the first day of trial. Sixth, all witnesses remain available for this trial. Seventh, should the matter proceed, quick trial dates have been set to eliminate any unreasonable delay.

4.2: Does prosecution on sexual assault charges undermine the Accused's fair trial interests?

[15] I do not find that the Accused's fair trial interests are adversely impacted by proceeding with a trial on two counts of sexual assault after the Crown stayed the trial on the sexual interference and invitation to sexual touching counts.

[16] First, no evidentiary rulings or findings of fact were made in the first trial. Nor were there any findings of credibility. The Crown stay on the earlier trial was entered early on and results in a fresh start for both parties. The effect of the Crown stay was equivalent to a mistrial.

[17] Second, all the witnesses are readily available. Counsel for the Accused stated that she would be content that the evidence of N.R.(1) given at the earlier trial apply to this one, subject to further cross-examination. This reasonable position may well increase the efficiency of the present trial. Should N.R.(1) testify viva voce in this trial, counsel for the Accused gains a tactical advantage by the prospect of N.R.(1) potentially giving inconsistent evidence compared to that given at the first trial.

[18] Third, the prosecution evidence for all counts on Information 12-40Y is the same, namely the testimony of N.R.(1) and R.R.

[19] Fourth, defences available on counts 2, 6, 9, and 10 are also available on the two counts of sexual assault. Given the tenor of the cross-examination of N.R.(1) it would appear that whichever counts are litigated, credibility (including motive to fabricate) and the defence of denial apply to all. There is no suggestion that this trial has, or will, inhibit the advancement of any form of defence.

[20] Fifth, neither issue estoppel nor double jeopardy arise. Since no rulings or findings were made at the first trial, there is no risk of re-litigation: R. v. Mahalingan, 2008 SCC 63, [2008] S.C.J. No. 64 (S.C.C.).

[21] Sixth, the offences of sexual interference and invitation to sexual touching are not included offences to sexual assault: R. v. T.B., [1999] O.J. No. 361 (Ont. G.D.).

[22] In summary, there is nothing in the circumstances of this case tending to show that the prosecutorial conduct to date has, or will, affect the fairness of this trial.

4.4: Does prosecution undermine the integrity of the judicial process or offend the community's sense of fair play?

[23] Prosecution of N.R. on sexual assault charges following a Crown stay does not erode the integrity of the judicial process or offend the community's sense of fair play. The effect of the circumstances of this case leading to arraignment on sexual assaults are no different than had a mistrial been declared on the first proceeding.

[24] Viewing the entirety of the circumstances objectively, it cannot be said that the community's sense of fair play and decency have been threatened or undermined by the conduct of the prosecution in staying these proceedings. To the contrary, in all of these circumstances a negative impact on the community's sensibilities would be generated if a judicial stay of proceedings were ordered.

[25] The conduct of the Crown has not contravened fundamental notions of justice nor has it undermined the integrity of the judicial process by moving forward with this trial.

5.0: CONCLUSION

[26] I find that N.R. have failed to demonstrate that his arraignment and trial on two counts of sexual assault contained in Information 12-40Y is an abuse of process. Even if there had been any real concern about trial fairness, this situation is far from the clearest of cases that require a judicial stay. If there was an abuse, upon balancing the interests of this youth with the societal interest of a trial on its merits, a stay of proceedings would be a disproportionate remedy.

[27] Therefore, for these brief reasons the defence application for a stay of proceedings due to an abuse of process is dismissed. The trial on two counts of sexual assault from Information 12-40Y will proceed.

ORIGINAL SIGNED BY JUSTICE R.H.K. SCHWARZL

Richard H.K. Schwarzl, Youth Court of Justice