ONTARIO COURT OF JUSTICE DATE: 2023 03 07 COURT FILE No.: Toronto 21100714

BETWEEN:

THE ONTARIO MINISTRY OF LABOUR, IMMIGRATION, TRAINING AND SKILLS DEVELOPMENT

— AND —

LIMEN GROUP CONST. (2019) LTD., CALI-DON ROSE, JOHN SOLC, OCTAVIO TOME, and EMANUEL TAVARES

Before: Justice Newton-Smith

Heard on: December 7 and 8, 2022, January 11, February 7 and 9, 2023

Reasons for Judgment released on: March 7, 2023

Counsel: W. Robinson, G. Adams......................................................... counsel for the prosecution N. Keith.............................................................. counsel for the defendants Limen Group, ...................................................................................... Octavio Tome and Emanuel Tavares R. Conlin……………………………….……………..counsel for the defendant C. Rose L. Sabsay and P. Colquhoun…………………..counsel for the defendant John Solc

NEWTON-SMITH J.:

Overview

[1] The defendants are charged with various offences under the Occupational Health and Safety Act.

[2] The defendants Rose and Solc have brought a motion for disclosure pursuant to section 7 and 24(1) of the Charter. The request is twofold. Firstly, they seek disclosure of the entirety of any existing discipline files for any of the inspectors involved in this case. Secondly, they seek full disclosure of an item referred to as the “Director’s Memo” over which the Crown claims solicitor-client privilege.

[3] The defendants Limen Group, Tome and Tavares have also brought a motion for disclosure seeking the above. Additionally they have brought a motion for a stay of proceedings. The request for a stay of proceedings is based on allegations of abuse of process pursuant to section 7 of the Charter and includes allegations of unreasonable pre and post charge delay pursuant to sections 11(b) and (d) of the Charter.

(i) The Widmer Fatality Investigation

[4] On December 14, 2020 a worker was killed at a condominium construction project at 38 Widmer Street in Toronto. The fatality was investigated by the Ministry of Labour, Training and Skills Development [the Ministry].

[5] That same day Matthew Antongiovanni, an occupational health and safety inspector for the Ministry, was assigned as the lead investigator of the Widmer fatality investigation. Another inspector, Matthew Cook, was assigned to assist in the investigation. Both inspectors attended the project on the day of the incident.

[6] In his role as lead investigator it was Mr. Antongiovanni’s responsibility to draft an Electronic Investigation Report [EIR]. The EIR is an investigative report that is submitted to the Ministry at the conclusion of an investigation. Appendixed to the EIR are all the supporting documents including witness statements.

[7] The Ministry target for completion of an EIR is 10 weeks from the start of the investigation.

[8] Sometime in March of 2021 Mr. Antongiovanni told his supervisor, Lesley Burrell, that the investigation into the Widmer fatality was completed but he needed more time to complete the EIR. No entries were made in either Mr. Cook or Mr. Antongiovanni’s notebooks with respect to the Widmer investigation after March of 2021.

[9] On June 23, 2021 Mr. Antongiovanni was suspended from the Ministry and Mr. Cook was assigned the role of lead investigator for the Widmer fatality. Mr. Antongiovanni’s suspension was the result of an unrelated investigation into alleged wrongdoing during his work on the “Underground Economy Initiative”.

[10] It was Ms. Burrell’s understanding that by the time that Mr. Antongiovanni was suspended he had completed a draft of the EIR.

[11] Once the case was re-assigned to him, Mr. Cook began working on the EIR using Mr. Antongiovanni’s draft. The final version of the EIR was signed and submitted by Mr. Cook.

[12] Mr. Cook also prepared a memo titled, “Request for Legal Opinion – Prosecution”. This document is what is referred to as the Director’s Memo. The Director’s Memo is typically prepared by the lead investigator. It is reviewed and signed by the Regional Program Coordinator [RPC], the manager and the Director. Once the Director has signed off, the Director’s Memo is sent to the Director of the Legal Services Branch of the Attorney General of Ontario.

[13] The purpose of the memo is to seek a legal opinion from Crown counsel in relation to the results of the investigation and the laying of charges.

[14] At the time of the Widmer investigation Lesley Burrell was the manager, Kristin Bell was the RPC and Dorothy Holster was the Director.

[15] A final meeting with respect to the Widmer investigation was held on September 23, 2021 following which the Director, Ms. Holster, signed off on the Director’s Memo so that it could be sent to the Ministry’s legal department.

(ii) The Widmer Fatality Prosecution

[16] On December 13, 2021 the defendants were charged with offences under the Occupational Health and Safety Act relating to the death of the worker. The statute of limitations for summary proceedings under the Occupational Health and Safety Act is one year. The total delay from the date of the incident to the date of the swearing of the information is 364 days.

[17] On January 14, 2022 the defendants first appeared in court on this matter.

[18] On February 7, 2022 initial disclosure was provided to the defendants. By February 24, 2022 disclosure was complete but for one item, Mr. Antongiovanni’s termination letter which was disclosed on May 10, 2022. By May 10, 2022 the only outstanding disclosure was that which is the subject of the section 7 disclosure motion before the Court.

[19] The total delay from the swearing of the information to the last scheduled date of trial is 16 months and 27 days.

(iii) The Investigation into Overbilling in the “Underground Economy Initiative”

[20] The “Underground Economy Initiative” [UEI] was a Ministry initiative to inspect work being performed outside of regular business hours, and to inspect workplaces that may be paying workers in cash or subjecting workers from vulnerable populations to unsafe working conditions. Inspectors were assigned overtime hours in order to conduct these UEI inspections.

[21] The UEI was subjected to a routine review of overtime submissions made by inspectors between August and December of 2020. As a result of that review 9 inspectors, including Mr. Antongiovanni and Mr. Cook, were investigated for overbilling. Lesley Burrell was the manager for all of the inspectors under investigation. At the time that they were assigned to work on the Widmer fatality both Mr. Antongiovanni and Mr. Cook were under investigation.

[22] On June 23, 2021 Mr. Antongiovanni was suspended by the Ministry and was ultimately terminated in February of 2022. He was one of 3 inspectors terminated as a result of the UEI investigation. Mr. Cook was cleared of all wrongdoing.

[23] The Ministry determined that Mr. Antongiovanni had submitted overtime claims for hours that were not worked, pressured others to do the same and, during the course of the investigation into his overbilling, made false statements and colluded with others to provide misleading information.

[24] On December 14, 2020, when Mr. Antongiovanni and Mr. Cook were assigned to investigate the Widmer fatality, it was known to management that they were under investigation.

The Disclosure Motions – All Defendants

A. The Disciplinary Files

(i) The Position of the Parties

[25] All defendants seek disclosure of the complete disciplinary files for all of the inspectors involved in the Widmer fatality investigation, and specifically those for Mr. Antongiovanni and Mr. Cook.

[26] Mr. Antongiovanni’s termination letter was disclosed to the defence in advance of trial.

[27] It was revealed during the course of the evidence on this application that, unknown to the Crown, Mr. Keith, counsel for Limen Group, Tome and Tavares, was in possession of the investigative report with respect to Mr. Antongiovanni and his work on the UEI. The report is dated December 6, 2021 and constitutes the summary of the allegations against Mr. Antongiovanni, the investigation and its findings.

[28] Mr. Keith conceded that the report constituted a significant aspect of the sought disciplinary file. Declining to advise the court as to when he came into possession of this report, Mr. Keith maintained his Application on the grounds that his possession of the report does not unburden the Crown of its disclosure obligations.

[29] It is the position of the Crown that the disclosure made of the fact of the investigation into Mr. Antongiovanni and his termination letter satisfies the Crown’s disclosure obligations. In any event, the Crown submits that Mr. Keith is in fact in possession of the most significant aspect of the disciplinary file and there is really nothing more to disclose.

(ii) Law and Analysis

[30] The Crown has a broad obligation to disclose all relevant, non-privileged information in its possession or control unless the disclosure is otherwise governed by law. Such information in the possession or control of the Crown is referred to as first party disclosure. The police in turn have a corresponding duty to disclose all of the “fruits of the investigation”, by which is meant “all material pertaining to its investigation of the accused”. This is generally described as the “investigative file”: R. v. Gubbins, 2018 SCC 44 at paras 21-22.

[31] The disclosure obligation further extends beyond the fruits of the investigation to information or materials that are “obviously relevant to the accused’s case”. While not part of the investigative file, such material will form part of first party disclosure where it, “relates to the accused’s ability to meet the Crown’s case, raise a defence, or otherwise consider the conduct of the defence”: Gubbins at paras 23-24.

[32] Records relating to findings of serious misconduct by police officers involved in the investigation against the accused form part of the first party disclosure obligation where the police misconduct is either related to the investigation or could reasonably impact the case against the accused. Where the records do not form part of first party disclosure, production is governed by the O’Connor regime for 3rd party records: R. v. McNeil, 2009 SCC 3 at para 15.

[33] There is an important distinction between disciplinary findings and disciplinary proceedings. While findings of misconduct may be obviously relevant, the proceedings leading to those findings, the investigative file underlying the disciplinary proceedings, are not. Usually, for such records relevance must be demonstrated pursuant to the O’Connor regime: McNeil, at para 25, R. v. Ali, 2020 ONSC 4410, at paras 39-41.

[34] At the first stage of the O’Connor regime the accused bears the burden of showing that the records are likely relevant. Likely relevance is satisfied where there is “a reasonable possibility that the information is logically probative to an issue at trial or to the competence of a witness to testify”. If there is a reasonable possibility that the information will assist the accused in making full answer and defence likely relevance will be demonstrated: Gubbins, at paras 26-27.

[35] In the case at bar the Crown has already disclosed to the Applicants Mr. Antongiovanni’s termination letter. The letter outlines the allegations and findings made against Mr. Antongiovanni. Additionally, the Applicants have in their possession the investigative report with respect to the allegations and findings against Mr. Antongiovanni.

[36] The disciplinary records sought here are not related to the Widmer fatality investigation. They relate to billing anomalies made by inspectors during the course of their work on an unrelated Ministry initiative, and prior to the Widmer fatality.

[37] Should the contents of Mr. Antongiovanni’s disciplinary file relate to any work that he did on the Widmer fatality investigation I would order that disclosed. The Crown concedes that this would properly fall under first party disclosure. However, I am advised by the Crown that no such files exist, nor does the defence suggest that they do.

[38] The Applicants have not pointed to any case specific evidence or information to demonstrate how production of the complete disciplinary file for Mr. Antongiovanni would assist them in making full answer and defence. They have not demonstrated to any standard the relevance of the UEI overbilling investigation to their ability to make full answer and defence in this case.

[39] With respect to the disciplinary file for Mr. Cook, while Mr. Cook was also a subject of the UEI overbilling investigation, he was never suspended and no findings against him were ever made. As such there is nothing in the circumstances of this case that would trigger any disclosure obligation: R. v. Burgher, 2014 ONSC 3239 at para 38.

B. The Director’s Memo

(i) The Position of the Parties

[40] The Crown takes the position that the Director’s Memo is a Ministry request for a legal opinion from the Crown and is subject to solicitor-client privilege. Further, the memo itself contains opinions with respect to the investigation into the Widmer fatality and as such is also not relevant. In so far as the memo contains factual information, that information is contained in the EIR which has been disclosed.

[41] The Applicants take the position that the Director’s Memo is disclosable as the work product of the Inspector, albeit summarising his opinion of the case.

(ii) Law and Analysis

[42] Solicitor client-privilege arises from communications made in confidence between a client and lawyer where the client seeks professional advice or assistance. The privilege can only be waived by the client. It is an almost absolute privilege which will yield only to innocence at stake: R. v. McClure, 2001 SCC 14, at paras 35-37 and 47.

[43] Just as legal advice between Crown counsel and police officers is protected by solicitor-client privilege, so is legal advice between Crown counsel and an investigatory agency: R. v. Campbell, [1999] 1 SCR 565 at para 49, R. v. Rutigliano, 2015 ONCA 452 at para 38.

[44] The document in question is titled “Request for Legal Opinion – Prosecution”. It was sent from the Director’s Office of the Ministry to the Director of their legal services branch. “SOLICITOR-CLIENT PRIVILEGED” is stamped across the top of each page. It is clearly on its face a communication made in confidence between an agency and the Crown seeking a legal opinion. As such it is subject to solicitor-client privilege.

[45] Absent waiver, communications subject to solicitor-client privilege are disclosable only in the most unusual cases where the innocence at stake test has been met. As explained by Justice Major in McClure, “The privilege should be infringed only where core issues going to the guilt of the accused are involved and there is a genuine risk of a wrongful conviction”: McClure, at para 47.

[46] To pierce the privilege the accused must establish that the information contained in the privileged communication is not available from any other source, and that there is no way to otherwise raise a reasonable doubt. If this is established the innocence at stake test is applied in two stages. At the first stage the accused seeking production must provide some evidentiary basis on which to conclude that the communication could raise a reasonable doubt as to his guilt. Only then should the judge examine the correspondence and proceed to stage two of the test. At stage two the question is whether the communication is likely to raise a reasonable doubt: McClure, at paras 48-51.

[47] In evidence is a blank template for the Director’s Memo. The headings in the template reveal that the Memo, while a request for a legal opinion, itself contains opinions and beliefs with respect to the incident and the laying of charges. The information, opinions and beliefs contained in the Director’s Memo are largely, if not entirely, based upon the materials contained within the Electronic Investigation Report. The EIR has been disclosed to the defendants. The opinions or beliefs expressed in the Director’s Memo would not be admissible at trial as they go to the ultimate issues to be decided.

[48] I have not been pointed to any evidentiary basis to suggest that there is information within the Director’s Memo that would be admissible at trial and not otherwise available. Nor is there any evidence before me to suggest that within the Director’s memo is information which could be capable of raising a reasonable doubt. The first stage of the innocence at stake test has not been met.

The Stay Applications – The Defendants Limen Group, Tome and Tavares

A. The Pre and Post Charge Delay

(i) Pre Charge Delay – The Position of the Defendants

[49] The defendants represented by Mr. Keith allege that their section 7 and 11(d) Charter rights have been violated as a result of a period of 8 months and 25 days of post-investigation, pre-charge delay that was “unnecessary, unjustified and unreasonable”. They assert that charges were not laid until 1 day before the limitation period expired because the Ministry was involved in a cover up that involved misrepresenting who the author of the EIR was.

[50] This ground is primarily argued as part of the abuse of process application, but also as a stand alone violation of the defendants right to a fair trial pursuant to sections 7 and 11(d) of the Charter.

(ii) Law and Analysis – Section 11(d)

[51] In order to establish pre-charge delay amounting to a Charter breach, the defendants must establish that the delay unduly affected the fairness of the trial, or that the integrity of the administration of justice is irreparably harmed. It is not the length of the delay that matters, but the effect that the delay has on the fairness of the trial: R. v. Mills, [1986] 1 SCR 863 at 945.

[52] The burden is on the applicant to establish a violation of the right to a fair trial. As a general rule, actual prejudice to the right to make full answer and defence must be established: R. v. Spackman, 2012 ONCA 905, [2012] O.J. No. 6127 (CA) at para 137.

[53] Absent evidence of bad faith or ulterior motive there is no burden on the crown to explain pre-charge delay where charges are laid within the Occupational Health and Safety Act limitation period: R. v. National Street Car Ltd., [2003] O.J. No. 856 (CA) at para 12. I will address the allegation of bad faith or ulterior motive below when considering section 7 of the Charter.

[54] There has been no demonstration here of any impact that the pre-charge delay has had on the defendants right to a fair trial and thus no violation of section 11(d) of the Charter.

(iii) Post Charge Delay – the Position of the Defendants Limen, Tome and Tavares

[55] The defendants represented by Mr. Keith take the position that, “the Crown in this case took far too long in setting this matter down for trial” and that while the delay is below the presumptive Jordan ceiling of 18 months it still amounts to a violation of their section 11(b) Charter rights.

[56] Again, this ground is also argued as part of the cumulative egregious conduct leading to an abuse of process and a breach of section 7 of the Charter.

(iv) Law and Analysis – Section 11(b) and the Jordan Framework

[57] In R. v. Jordan the Supreme Court of Canada set a presumptive ceiling of 18 months for cases going to trial in provincial court. The amount of delay, referred to as the net delay, is calculated by subtracting from the total delay any defence delay.

[58] The parties agree that the total delay in this case is 16 months and 27 days.

[59] The Crown submits that there is a period of 28 days of defence unavailability, bringing the net delay to 15 months and 29 days.

[60] Either way the total delay is below the presumptive ceiling.

[61] Where the net delay is below the presumptive ceiling the onus is on the defence to show that the delay is unreasonable. In order to do so the defence must satisfy a two-part test. First, the defence must show that it took meaningful steps that demonstrate a sustained effort to expedite the proceedings. Second, it must be shown that the case took markedly longer than it reasonably should have: R. v. Jordan, 2016 SCC 27.

[62] In this case there are 5 defendants represented by 3 separate counsel. It is a construction site fatality, involving expert evidence and scheduled for 15 days of trial.

[63] It was less than 11 weeks from the date of the swearing of the information to February 24, 2022 when disclosure was complete with the exception of Mr. Antongiovanni’s termination letter.

[64] On May 10, 2022 the Crown provided the defendants with Mr. Antongiovanni’s termination letter and the Crown’s position with respect to the McNeil disclosure issues raised by the defence. That same day the Crown requested that the defendants provide dates for a judicial pre-trial in order to move the case forward to trial.

[65] Mr. Keith provided only 3 available dates for a judicial pre-trial, all of which were 3 months later in August of 2022. The first judicial pre-trial was subsequently conducted on August 23, 2022.

[66] On October 14, 2022, the date of the third judicial pre-trial, dates for pre-trial motions, and the trial proper were set. Two days were set aside for the pre-trial motions and 15 days for trial.

[67] The pre-trial motions, while scheduled for only 2 days, took place over 5 days and 4 witnesses were called by Mr. Keith.

[68] Other than asserting that they have been cooperative, responsive and attended all scheduled court appearances and pre-trials, the defendants have not pointed to any particular meaningful steps taken on their part to expedite these proceedings.

[69] Even if this is enough to satisfy the first prong of the test, in considering all of the circumstances of this case I do not find that there is anything unreasonable about the amount of time that will pass between the swearing of the information and the last scheduled trial date.

B. The Allegations of Abuse of Process

(i) The Position of the Defendants Limen Group, Tome and Tavares

[70] Counsel for the defendants Limen Group, Tome and Tavares takes the position that the investigation and prosecution of his clients amounts to an abuse of process. He alleges that there is a collective impact of investigative and prosecutorial misconduct, failure to disclose, cover up and delay in the investigation and prosecution that amounts to an abuse of process.

(ii) Law and Analysis

[71] A stay of proceedings is the most drastic of remedies that is only warranted in the clearest of cases. There are two categories of cases which may warrant a stay. The first, referred to as the main category, are those cases where the state conduct compromises the fairness of the accused’s trial. The second, or residual category, are those cases where the state conduct risks undermining the integrity of the judicial process: R. v. Babos, 2014 SCC 16, at paras 30-31.

[72] The test for determining when a stay will be warranted has three requirements:

(1) there must be prejudice to the accused’s right to a fair trial 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, (2) there must be no alternative remedy capable of redressing the prejudice, and (3) where there is still uncertainty over whether a stay is warranted after steps 1 and 2, the court must balance the interests in favour of granting a stay against the interest that society has in having a final decision on the merits.

R. v. Babos, at para 32

[73] The test is the same whether the main or residual category is invoked, although the analysis differs somewhat between the categories.

[74] Here the defendants represented by Mr. Keith assert the following:

1. That the charges are based on the investigation conducted by a dishonest, discredited and discharged lead inspector;
2. That there was mismanagement, misconduct and a cover up of the level of involvement of the corrupt lead investigator further tainting the case;
3. That the investigators and the Crown failed to provide full, complete and timely disclosure, including that the 3 Ministry employees summonsed to testify on the application by the defendants refused to comply with the summons by not bringing documents to court;
4. That the pre-charge and post-charge delays were unreasonable, unacceptable and prejudicial to the defendants, and
5. The cumulative, combined and collective effect of all of these factual problems with this case amounts to an abuse of process, multiple Charter violations, and a violation of the community’s trust, sense of fair play and decency, and the Government of Ontario’s Regulator’s Code of Conduct sufficient to justify a stay of all charges, with costs.

[75] The defendants have not pointed to any actual prejudice to their fair trial rights resulting from the above allegations, rather they call on the court’s, “residual authority….to prevent oppressive or vexatious proceedings, to prevent prosecutorial misconduct and to preserve public confidence in the justice system”.

[76] It therefore appears that it is the residual category that the defendants invoke in seeking a stay of proceedings.

The First Stage of the Babos Inquiry

[77] Where the state engages in conduct that is offensive to societal notions of fair play and decency such that proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system the first stage of the test will be met: Babos at paras 35 and 38.

[78] I will deal separately with each of the alleged areas of investigative and prosecutorial misconduct.

1. That the charges are based on the investigation conducted by a dishonest, discredited and discharged lead inspector.

[79] Mr. Antongiovanni was initially the lead investigator in the Widmer fatality investigation. At the time that he was designated lead investigator Mr. Antongiovanni had recently come under investigation for overbilling the Ministry during the course of his work on an unrelated Ministry initiative. Just over 6 months later, and after his investigation into this case was complete, Mr. Antongiovanni was suspended by the Ministry. As soon as he was suspended Mr. Cook, who had been assisting him, became the lead investigator.

[80] Mr. Cook reviewed Mr. Antongiovanni’s work in this investigation and submitted the final report. There was no suggestion that Mr. Cook uncovered anything fraudulent with respect to Mr. Antongiovanni’s work on this case.

[81] Ultimately the Ministry concluded that Mr. Antongiovanni had failed to demonstrate the required standards of honesty and integrity as it pertained to his field work and overtime submissions during the course of his work on the Underground Economy Initiative. The UEI was not related to the fatality investigation in this case, nor were there any such allegations or findings with respect to his work on this case.

[82] While it would have been preferable for the Ministry to assign an inspector to this fatality case who was not under investigation for overbilling, I do not find it shocking or offensive to society’s notions of fail play and decency.

2. That there was mismanagement, misconduct and a cover up of the level of involvement of the corrupt lead investigator further tainting the case.

[83] It is alleged that the Ministry attempted to cover up the fact that the lead investigator, Mr. Antongiovanni, was under investigation, and further attempted to cover up his involvement in this case.

[84] When Mr. Antongiovanni was suspended he was replaced by Mr. Cook. By this point in time the Widmer fatality investigation was complete. Mr. Cook had been involved in the case from the outset assisting Mr. Antongiovanni. When he took over Mr. Cook reviewed the case file compiled by Mr. Antongiovanni and submitted the final report in his own name.

[85] While the defendants suggest that Mr. Cook was fraudulently passing himself off as the author of a report he didn’t create, this is not what occurred. Mr. Cook reviewed and adopted his predecessor’s work. There is no evidence that anyone tried to conceal the fact that Mr. Antongiovanni was the original lead investigator, did much of the work and drafted a final report before he was suspended.

[86] Ms. Burrell, the manager of Mr. Antongiovanni and Mr. Cook, was subpoenaed by Mr. Keith to testify on this application. He submits that in her evidence Ms. Burrell was attempting to mislead the court as to what she knew about the investigation into Mr. Antongiovanni, and when she knew it.

[87] I do not accept the characterisation of her evidence as misleading. Despite the fact that she was Mr. Keith’s witness, she was vigorously cross-examined by him. While she did at one point answer a question in a way that suggested she knew about the official investigation into Mr. Antongiovanni only a few days before he was suspended, when her evidence is considered as a whole, and in context, it is clear that she was aware of the investigation into wrongdoing in the UEI from the outset including that 9 of her inspectors were under investigation. I do not find that Ms. Burrell intended to suggest otherwise in her evidence.

[88] The defendants further allege that Ms. Burrell did “essentially nothing” about the fact that two of her inspectors were under investigation for billing anomalies and that her management decisions amount to unacceptable misconduct which brings the administration of justice into disrepute.

[89] I do not see anything that is offensive to society’s notion of fair play and decency with the manner in which the Ministry conducted this investigation. Any deficiencies in the investigation and its management, and how they impact the strength or weakness of the Crown’s case, are issues that can be explored at trial.

3. That the investigators and the Crown failed to provide full, complete and timely disclosure, including that the 3 Ministry employees summonsed to testify on the application by the defendants refused to comply with the summons by not bringing documents to court

[90] This issue has been largely dealt with in the disclosure motion. The Crown did not fail to make proper McNeil disclosure and the Director’s Memo is subject to solicitor-client privilege and not producible.

[91] With respect to the subpoena issue, 3 of the witnesses were Ministry employees and 1 was a former employee. Of the 3 current employees one, Ms. Burrell, was on a maternity leave at the time that she testified.

[92] When confronted with their failure to bring documentation sought by Mr. Keith to court all of the witnesses offered to attempt to find any documents requested that were not subject to a privilege claim. I do not find that any of these witnesses intentionally attempted to ignore the subpoena.

[93] Mr. Keith suggests that Ms. Burrell cut and pasted the email correspondence that she brought to court as requested by the subpoena. This suggestion was never directly put to her and I do not accept that she purposely manipulated documents in an attempt to mislead.

[94] I do not find that there is anything offensive to the administration of justice in the conduct of these witnesses and the manner in which they responded to the subpoena.

4. That the pre-charge and post-charge delays were unreasonable, unacceptable and prejudicial to the defendants

[95] For the reasons outlined above I do not find that there is any unreasonable pre or post charge delay in this case.

5. The cumulative, combined and collective effect of all of these factual problems with this case amounts to an abuse of process, multiple Charter violations, and a violation of the community’s trust, sense of fair play and decency, and the Government of Ontario’s Regulator’s Code of Conduct sufficient to justify a stay of all charges, with costs.

[96] Given my findings above there is no cumulative investigative and prosecutorial misconduct to consider. Whether or not the Ministry employees tasked with this investigation followed the Regulator’s Code of Conduct is not an issue giving rise to any Charter violations: Ontario (Labour) v. Miller Group Inc, 2021 ONCA 879 at para 42.

Conclusion

[97] The first stage of the Babos inquiry has not been satisfied by the defendants. With respect to the second stage of the inquiry, there is no prejudice requiring remedy. As a result, there is nothing to balance at the third stage.

[98] I do not find that there has been any abuse of process here.

Released: March 7, 2023 Signed: Justice Newton-Smith