WARNING

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

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(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) MANDATORY ORDER ON APPLICATION — 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.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

Date: 2024 01 16 Court File No.: Windsor 22-11090

BETWEEN:

HIS MAJESTY THE KING

— AND —

J.Y.

Before: Justice S. G. Pratt

Heard on: 29 November 2023 Reasons for Judgment released on: 16 January 2024

Counsel: Delia Greco, for the Respondent Julie Santarossa, for the Applicant

Ruling on Stay Application

Pratt J.:

[1] J.Y. is charged with eleven criminal offences. Ten counts are sexual assaults, and one is mischief. He has applied to have one of the sexual assault counts, count 11, stayed by the Court. He says the circumstances surrounding this charge and its continued prosecution amount to an abuse of process for multiple reasons. The Crown disagrees. It says that there has been no abuse of process, and that any concerns surrounding the history of that count can be addressed by curtailing the evidence the Crown will rely on, and by a fulsome cross-examination of the named complainant.

[2] I agree with the Applicant that the charge should be stayed. These are my reasons.

The History of Count 11

[3] The count in question alleges that on 30 October 2017 the Applicant sexually assaulted K.M., hereinafter the Complainant. The alleged assault took place over the course of a massage treatment provided by the Applicant, who at the time was working as a Registered Massage Therapist (RMT) at Mifflin Chiropractic in Tecumseh, Ontario. The Complainant was preparing for an Ironman Triathlon and had various physical issues that needed treatment. On the recommendation of her friend and fellow triathlete (and also an RMT) L.C., the Complainant went to the Applicant twice. The first visit was on 28 October, the second was two days later.

[4] Following the 30 October visit, the Complainant told her mother that she had been assaulted. Police were contacted. They took a brief statement from the Complainant over the phone prior to her leaving for the triathlon, and a more detailed video statement on her return. They also spoke with the Complainant’s mother, Ms. L.C., and others. The Applicant was invited to provide a statement to police but he declined.

[5] The complaint centred around what the Complainant felt was inappropriate touching and draping done by the Applicant during the massage. She expressed her concerns to police, who spoke with Ms. L.C. Based on her own knowledge of massage techniques, Ms. L.C. told police that what she understood had taken place did not seem untoward. Following what appears to have been a thorough investigation, Detective Amanda Zielinski of the Essex OPP made the decision not to lay a charge. The police report notes the allegation of 30 October 2017 to be “unfounded”. DC Zielinski did, however, refer the matter to the College of Massage Therapists of Ontario (CMTO). I was provided with a memo from Angela Gates dated 29 November 2017 where she said she was notified by DC Zielinski of the situation. At the time, Ms. Gates was Interim Director, Professional Conduct for the CMTO.

[6] It is important to note that the police investigation was closed at that time. No further steps were taken after the referral to the CMTO. The Applicant was told by police of the decision not to lay a charge against him.

[7] After she was told there would be no criminal charge, the Complainant filed a complaint with the CMTO. The Applicant was notified of the complaint by letter dated 21 December 2017 and asked to respond. He did, through counsel. In a submission dated 16 February 2018, the Applicant’s counsel set out his recollection of the visit and made arguments as to why no professional misconduct had taken place. The CMTO was also given a statement by Ms. L.C., various forms that had been filled out at the time of the Complainant’s visits, letters from the Applicant to the Complainant, educational materials on the techniques used, and an account statement. There was also a letter from Mifflin Chiropractic.

[8] As part of the CMTO investigative process, the Applicant had what I was told was a day-long interview with investigators. He was required to answer investigators’ questions in accordance with CMTO by-laws.

[9] Further, all materials provided by the Applicant to the CMTO were forwarded to the Complainant for her response. I am unaware if she provided any further information.

[10] On 22 July 2020, the Applicant resolved his CMTO matters. By that point, he was facing a total of four complaints lodged by three complainants. In exchange for an undertaking that he cease practicing as an RMT, the disciplinary cases were indefinitely adjourned. They could only be revived if he was found to have violated the undertaking.

[11] Nothing more was done regarding the Complainant’s allegations until November 2021. A different complainant had come forward alleging sexual assault by the Applicant. That led to police issuing a press release where they invited other complainants to come forward as well. In response to that press release, the Complainant got back in touch with police and restated her earlier claim. Following consultation with the Crown, the police ultimately reopened her file and count 11 was laid.

The Positions of the Parties

[12] The Applicant claims a violation of his rights under ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms. He argues that he relied on the police assurance that he would not be charged to his detriment. Had he known a charge was coming or was even still being considered, he would have sought to postpone the CMTO proceeding until after the criminal process was complete. He would not have provided submissions or agreed to the investigative interview. That the Crown and the Complainant now have the materials he filed with the CMTO compromises the fairness of his trial. At the very least, it creates the appearance of unfairness as he gave up his right to remain silent on the Complainant’s allegation only to be charged criminally years later.

[13] He also argues that the four years from the closing of the investigation to its reopening represents unreasonable pre-charge delay.

[14] Taken together, the delay and the compromising of his right to remain silent should lead to a finding that laying count 11 and continuing its prosecution is an abuse of the Court’s process. The only remedy capable of addressing the prejudice the abuse has caused is a stay of proceedings.

[15] The Crown argues that there is no abuse of process. While the decision not to charge the Applicant was made in 2017, the emergence of several new complainants in 2021 is a significant change in circumstance. The state should not be precluded from pursuing this charge when the landscape surrounding it has changed.

[16] While not conceding a breach of the Applicant’s s. 7 or 11(d) rights, the Crown has agreed that it will not rely on any of the submissions made by the Applicant in response to the CMTO complaint or the content of the investigative interview. This, together with a full cross-examination of the Complainant, is in the Crown’s submission sufficient to address any concerns the Court may have regarding the history of this charge and the impact that history may have on the fairness of the Applicant’s trial.

Abuse of Process

[17] The doctrine of abuse of process has been part of the common law in Canada since the 19th century. In the case of Re: Sproule, [1886] 12 S.C.R. 140, Chief Justice Ritchie noted the following at paragraph 2:

This writ having been issued out of this court, under the seal of the court, and tested in the name of the Chief Justice (and I know of no other way in which, the writ of habeas corpus could be issued on the fiat of a judge of this court), was a proceeding in this court, and every superior court, which this court unquestionably is, has incident to its jurisdiction an inherent right to inquire into and judge of the regularity or abuse of its process.

[18] In the pre-Charter era of the 20th century, however, the applicability of the doctrine to criminal matters was in serious doubt.

[19] The case of R. v. Osborn, [1969] 1 O.R. 152 (C.A.), rev’d R. v. Osborn, [1971] S.C.R. 184, dealt with an alleged conspiracy to utter forged cheques. Osborn had previously been acquitted of possessing the cheques, and so on this second trial entered a plea of autrefois acquit. He argued that the trial judge should enter a stay of proceedings on the second indictment as his previous acquittal made the proceeding an abuse of the Court’s process. The trial judge did not rule on his jurisdiction to enter a stay but rather proceeded with the trial, which ended in conviction. On appeal to the Court of Appeal for Ontario, Justice Jessup overturned the trial judge’s decision and affirmed the existence of a discretion to stay charges when a prosecution is so oppressive that it constitutes an abuse of the Court’s process.

[20] That finding was itself overturned by Justice Pigeon, speaking for a majority of the Supreme Court of Canada. After reviewing the relevant authorities and the decision of Justice Jessup, Justice Pigeon stated the following:

It is basic in our jurisprudence that the duty of the courts is to apply the law as it exists, not to enforce it or not in their discretion. As a general rule, legal remedies are available in an absolute way ex debito justitiae [as a matter of right]. Some are discretionary but this does not destroy the general rule. I can see no legal basis for holding the criminal remedies are subject to the rule that they are to be refused whenever in its discretion, a court considers the prosecution oppressive. (Translation added)

[21] Justice Pigeon affirmed this point of view in the subsequent case of R. v. Rourke, [1978] 1 S.C.R. 1021. Speaking for the majority, Justice Pigeon said this:

I cannot find any rule in our criminal law that prosecutions must be instituted promptly and ought not to be permitted to be proceeded with if a delay in instituting them may have caused prejudice to the accused. In fact, no authority was cited to establish the existence of such a principle which is at variance with the rule that criminal offences generally are not subject to prescription except in the case of specific offences for which a prescription time has been established by statute. I have to disagree with the view expressed by McIntyre J.A. that there could be factual situations giving to a trial judge discretion to stay proceedings for delay. For the reasons I gave in The Queen v. Osborn, [1971] S.C.R. 184., I cannot admit of any general discretionary power in courts of criminal jurisdiction to stay proceedings regularly instituted because the prosecution is considered oppressive. In fact, I think the correct view is that which was expressed as follows by Viscount Dilhorne in Director of Public Prosecutions v. Humphrys [[1976] 2 All E.R. 497]. (at pp. 510-511):

In Mills v. Cooper, [1967] 2 Q.B. 459, where justices had dismissed a summons on the ground that it was oppressive and an abuse of the process of the court, Lord Parker CJ. (at p. 467), while holding that it was not, said: '... every court has undoubtedly a right in its discretion to decline to hear proceedings on the ground that they are oppressive and an abuse of the process of the court.'

I must confess to some doubt whether this is a correct statement of the law in relation to magistrates' courts. If it is, it appears to me to be fraught with considerable dangers. One bench, thinking a prosecution should not have been brought, will dismiss it as oppressive and vexatious. Other benches on precisely the same fact may take a completely different view, with the result that there is a lack of uniformity in the administration of justice.

Nor is the existence of the power my noble and learned friends, Lord Salmon and Lord Edmund-Davies, think the judge has and its exercise without considerable dangers.

A judge must keep out of the arena. He should not have or appear to have any responsibility for the institution of a prosecution. The functions of prosecutors and of judges must not he blurred. If a judge has power to decline to hear a case because he does not think it should be brought, then it soon may be thought that the cases he allows to proceed are cases brought with his consent or approval.

If there is the power which my noble and learned friends think there is to stop a prosecution on indictment in limine, it is in my view a power that should only be exercised in the most exceptional circumstances.

In my view, the absence of any provision in the Criminal Code contemplating the staying of an indictment by a trial judge or an appeal from such decision, is a strong indication against the existence of any power to grant such stay.

[22] The adoption of the last passage from Viscount Dilhorne was taken by several courts, the Court of Appeal for Ontario among them, as a lifeline for the doctrine. The existence of a discretion to stay a prosecution as abusive was also viewed favourably by Chief Justice Laskin in concurring reasons in Rourke. The Chief Justice noted:

If, as I think, and as all members of the House of Lords in Connelly recognized, there is merit in the principle that a criminal Court, like a civil Court, is entitled to protect its process from abuse, the question of discretion becomes a matter of discipline, keyed to particular situations which, as an outgrowth of case law, commend themselves as of a kind in which the principle may be raised.

Apart from the generality of support for the proposition that a criminal court may stay proceedings which are an abuse of process or oppressive and vexatious and that, in the view at least of Lord Edmund-Davies which is the view I hold, the power may be invoked by every court having criminal jurisdiction (such courts being presided over in Canada generally by persons qualified lawyers), neither Connelly nor Humphrys are of direct assistance in the present case. They do, however, underline, as I would myself, that the power to prevent abuse of process is one of special application and its exercise cannot be a random one.

[23] After an exhaustive review of the jurisprudence, Justice Dubin stated the following in the case of R. v. Young (1984), 46 O.R. (2d) 520 (C.A.):

I am satisfied on the basis of the authorities that I have set forth above that there is a residual discretion in a trial court judge to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency and to prevent the abuse of a court's process through oppressive or vexatious proceedings. It is a power, however, of special application which can only be exercised in the clearest of cases.

[24] Justice Dubin’s approach was especially notable as he considered the doctrine through the lens of s. 7 of the Charter.

[25] Recognizing the need for a final statement on this point, the Supreme Court of Canada settled the issue in the case of R. v. Jewitt, [1985] 2 S.C.R. 128. Speaking for a unanimous Court, Chief Justice Dickson adopted Justice Dubin’s decision and affirmed the existence of a discretion to stay a proceeding when it would amount to an abuse of process. The Chief Justice also endorsed Justice Dubin’s belief that the discretion should only be exercised in the clearest of cases.

[26] Having established jurisdiction to consider the issue, what is meant by an abuse of process? Following Justice Dubin’s finding in Young, it would be where compelling a defendant to stand trial would violate the fundamental principles of justice that underlie the community’s sense of fair play and decency. That question was also answered by Justice L’Heureux-Dubé, speaking for the majority in R. v. O’Connor, [1995] 4 S.C.R. 411.

[27] The O’Connor decision set out two principles relevant to the present case: first, it confirmed an alleged abuse of process can impact Charter-protected rights. Justice L’Heureux-Dubé noted the specific Charter rights involved may change depending on the nature of the case. Second, there exists a separate path to the finding of an abuse of process that does not relate to trial fairness or specific Charter rights. This residual category of abuse:

…instead addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process.

[28] Justice L’Heureux-Dubé also cited Justice Wilson in R. v. Keyowski, [1988] 1 S.C.R. 657 confirming that an applicant need not show misconduct or improper motive on the part of the Crown before finding an abuse of process.

[29] The Applicant’s argument rests on two points: one, that he relied on the police telling him he would not be charged in agreeing to participate in the CMTO’s disciplinary process immediately. In so doing, he provided significant information and evidence that he would not have provided had he known a charge was still possible. Further, that information and evidence is now in the possession of both the Crown and the Complainant. Two, the four years between closing the investigation and reopening it is pre-charge delay that prejudices his ability to make full answer and defence.

[30] I must consider the evidence in totality when deciding this issue and not adopt a piecemeal approach (see: R. v. Murray [2020] O.J. No. 3343 (S.C.J.) at paragraph 143).

The CMTO Proceeding

[31] As I noted earlier in these reasons, after the completion of the police investigation DC Zielinski contacted the CMTO. She told Angela Gates of the allegation and advised that police would not be laying a charge. In the memo from Ms. Gates, filed on this application, she wrote that she asked DC Zielinski to speak to the Complainant about filing a complaint. The Complainant did file that complaint a short time later. On 21 December 2017 the Applicant received written notice of it.

[32] At some point prior to that date, the Applicant had been told by police that no charge would be laid. This is an important point as it affected how he chose to deal with the complaint. He retained counsel and began his participation in the disciplinary process.

[33] The Applicant was required, as part of that process, to make himself available for an interview by CMTO investigators. That interview took place at his counsel’s office. I was told it was akin to a civil discovery and took an entire day. In addition, he also filed lengthy written submissions and supporting materials in response to the complaint. His response was sent by the CMTO to the Complainant so that she could respond to his account. (I note that she would only have received his written materials and not anything regarding the interview. The materials were sent under a cover letter dated 14 March 2018 and I was told the interview did not take place until the following December.) Pursuant to a production order, the Crown has also now obtained the Applicant’s responding materials, including information about the interview. Crown counsel specified, however, that while they have a report generated by an investigator regarding the investigative interview, they do not have the audio recording of it.

[34] The Applicant contends that had he known charges were still possible, he would have sought an adjournment of the CMTO proceedings to a date after those charges were complete. He would have maintained his right to remain silent, as he had done when police approached him in 2017 seeking a statement. He relied on police assurances in making the decision to address the CMTO complaint immediately.

[35] The unfairness comes from both the Crown and the Complainant now possessing his responding materials. The Applicant has given a comprehensive account of what he said happened in his interactions with the Complainant. He has provided a statement from L.C. that supports his claim that nothing inappropriate took place. He has also provided a letter from Mifflin Chiropractic that directly addresses a claim apparently made by the Complainant to the CMTO. All of this compromises his ability to make full answer and defence as in the usual course none of this would have been disclosed to the Crown in advance of trial. The Crown and the Complainant now have detailed information on his version of events and where he says the Complainant is incorrect or untruthful. The Complainant will have had years to digest the materials and tailor her evidence to answer his claims. This gives the state a significant, and unfair, advantage.

[36] The Crown seems to recognize the potential for unfairness. It is suggested that the remedy could be that it not rely on any of the information provided by the Applicant to the CMTO. It has agreed not to lead any evidence he provided, and should he elect to testify, will not seek to use it in cross-examination. By everyone collectively ignoring the CMTO file, any possible unfairness arising from it can be eliminated.

[37] Regarding the Complainant having received the CMTO materials, the Crown argues she can be cross-examined on that point. She can be asked if she’s reviewed them, and when. If she says something that was not in her statement to police but that seems to answer something brought up in the materials, she can be challenged on it.

[38] The Applicant counters that not relying on the materials is not a sufficient remedy. Counsel draws an analogy to police beating a suspect prior to administering an Intoxilyzer test. If the Crown simply agreed not to rely on the test, the underlying breach of the suspect’s rights would still be present and unaddressed. While no one is equating the present situation with a physical beating, counsel contends the comparison is apt.

Pre-Charge Delay

[39] The police decision not to charge the Applicant was made sometime in November 2017. The opposite decision was made in November 2021, four years later. It was agreed by the Crown that nothing new was discovered regarding the Complainant’s allegations in the interim. The Crown submitted that the other complainants coming forward was itself a significant change in circumstances but acknowledged that nothing directly referable to the Complainant or her allegations changed in the intervening four years.

[40] Pre-charge delay, standing alone, will not usually be enough to show an abuse of process. An applicant will have to show actual prejudice to his ability to make full answer and defence arising from the delay in charging. In the present case, the Applicant argues the delay in charging led him to participate in the CMTO investigation to his detriment.

[41] Pre-charge delay as a basis for a s. 7 breach is not easily shown. Justice Hoegg, whose dissent in R. v. Hunt, 2016 NLCA 61, [2016] N.J. No. 372 (C.A.) was adopted by the Supreme Court of Canada R. v. Hunt, 2017 SCC 25, [2017] S.C.J. No. 25, stated the following:

The Supreme Court considered pre-charge delay in relation to section 7 Charter rights in R. v. L.(W.K.), [1991] 1 S.C.R. 1091. In ruling it was not open to a trial judge to stay proceedings based on lengthy pre-charge delay on the face of an indictment, Stevenson J. stated: "the fairness of a trial is not automatically undermined by even a lengthy pre-charge delay which may actually operate to the advantage of an accused" (page 1100). Justice Stevenson went on to endorse Lamer J.'s reasoning in Mills which was that it is the effect of delay, not its length, that matters to the fairness of a trial. The Ontario Court of Appeal applied this ruling in R. v. Cunningham, [1992] O.J. No. 2754, which held that the mere possibility of prejudice is insufficient to ground a finding that delay by the authorities prejudiced an accused's right to make full answer and defence or constituted abuse of process.

[42] Possible prejudice will not establish a breach, nor will an objectively lengthy delay on its face. An applicant must show his ability to make full answer and defence has been compromised as a result of the delay. I pause to note the statement of Justice Hennessy at paragraph 14 of R. v. Brideau, 2021 ONSC 189: “The applicant must establish on a balance of probability actual prejudice to their fair trial rights, of such magnitude that the accused is unable to put forward a defence.” I take Her Honour to mean that an applicant must be unable to put forward a particular defence, not any defence. Requiring that an applicant’s ability to defend himself be completely frustrated would be setting the bar too high.

[43] If the length of the delay is in itself not sufficient to show prejudice, the Applicant must have to point to events that took place during the delay to substantiate his claim. The event he relies on is the CMTO investigation.

[44] Many of the cases on pre-charge delay involve lengthy police investigations. In Hunt, for example, the original police complaint was made in 2002 and charges were not laid until ten years later in a complicated fraud and insolvency case. It is agreed between the parties that the case at bar does not involve a lengthy investigation. The Crown does not argue that the Applicant seeks to have me supervise the efficiency of a police investigation or determine if they proceeded with sufficient alacrity. The crux of the Applicant’s argument is that the delay in charging him has altered the landscape irrevocably by leading him to participate in the CMTO investigation.

[45] It is clear that in the present case, pre-charge delay does not stand on its own as a path to an abuse of process. It is intertwined with the Applicant’s claim of unfairness at being told no charge would be laid only to have that very thing happen four years later.

Analysis

[46] As stated by Justice L’Heureux-Dubé in O’Connor, there are two categories of conduct that can lead to an abuse of process. These categories were summarized by Justice Moldaver in R. v. Babos, [2014] 1 S.C.R. 309 at paragraph 31:

These cases generally fall into two categories: (1) where state conduct compromises the fairness of an accused's trial (the "main" category); and (2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the "residual" category) (O'Connor, at para. 73).

[47] The residual category does not directly address trial fairness but does include notions of fairness related to the overall proceeding. As Justice L’Heureux-Dubé stated in O’Connor, it relates to a prosecution that can “connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process.”

[48] I see nothing in the authorities that suggests an abuse claim must be either the main category or the residual category. A claim of abuse of process can encompass both.

[49] The Young decision is factually similar to the case at bar. There, the Defendant was investigated regarding an affidavit he swore related to the transfer of property in 1976. The purchaser of the property brought the affidavit to the attention of the Ministry of Revenue, as well as the local bar association and the Law Society of Upper Canada. This led to correspondence between the Defendant and the Ministry where a disagreement on a provision of the Land Speculation Tax Act arose. This could have led to a charge under that Act of making a false affidavit. Rather than charge the Defendant, the Ministry advised in 1977 that it would commence a reassessment of the property in question. For their part, the Law Society and bar association never took any action.

[50] That was the end of the matter until 1982, when the situation was brought to the attention of the Ontario Provincial Police by a citizens’ committee that claimed mismanagement by a local government official. Among a large pile of documents related to that case was the Defendant’s affidavit. This led to a police investigation and eventually to the Defendant being charged with fraud and making a false affidavit. It was agreed that no new evidence was uncovered in the police investigation that was not in the hands of the Ministry of Revenue five years earlier.

[51] The Defendant applied for a stay of proceedings under s. 11(b). That stay was granted by the trial judge. On appeal, Justice Dubin found that while s. 11(b) was not the proper section for dealing with issue, s. 7 was. Justice Dubin set out the facts as follows:

(1) An investigation was commenced by the Ministry of Revenue in 1976,

(2) That investigation took several months and concluded in 1977,

(3) The Ministry elected not to lay a charge related to the Defendant’s affidavit, but by letter dated 12 October 1977 told him they would instead be undertaking a reassessment of the subject property,

(4) In January 1982, the affidavit came to the attention of the OPP, who commenced a new investigation,

(5) Despite interviewing the original parties, no new evidence was discovered, and

(6) In April 1983, the Defendant was charged with two criminal offences.

[52] In affirming the stay of proceedings granted by the trial judge, Justice Dubin relied on the unfairness of resurrecting a matter that had long since been completed. On the issue of prejudice, His Honour stated:

The prejudice is not confined to the impairment of the ability to make full answer and defence, although such impairment is claimed. The prejudice asserted goes beyond that. His life has once again been disrupted, his reputation in the community in which he lives again damaged, and his career put in jeopardy with respect to a matter which arose in 1976 and which in 1977 had already been resolved by the Executive, so far as he was personally concerned, in his favour.

[53] Finally, His Honour concluded:

I think this is a case where it is appropriate for the Court, by the control of its process, to prevent such unfairness. To subject Mr. Young to a trial now on charges of fraud and perjury would put his liberty at risk in a manner contrary to those fundamental principles of justice which are the hallmark of our criminal justice system and now entrenched in s. 7 of the Charter.

[54] The similarities between the Defendant and the Applicant are clear. Each was investigated for alleged misconduct by the state. Each emerged from those investigations with the state deciding not to pursue charges. Years later, each saw the opposite decision taken despite no new evidence being uncovered.

[55] Justice Dubin also noted that the Defendant was facing increased jeopardy as a result of the delay in charging him. The limitation period under the Land Speculation Tax Act had passed, which meant the Defendant could only be charged under the more serious Criminal Code. In the Applicant’s case, the passage of time now requires the Crown to proceed by indictment against him, thus opening him up to a more severe potential punishment.

[56] The most notable difference between the Defendant and the Applicant is that there is no evidence the Defendant relied on the Ministry’s decision to his detriment. That is a factor present in the Applicant’s case that strengthens his claim of an abuse.

A Stay of Proceedings

[57] Whether a stay of proceedings should be granted depends on the application of a test set out in by Justice Moldaver at paragraph 32 of Babos:

The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:

(1) There must be prejudice to the 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 by its outcome" (Regan, at para. 54);

(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 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" (ibid., at para. 57).

[58] A stay of proceedings is the most drastic remedy for an abuse of process, but it is not the only possible remedy (see: R. v. Regan, [2002] 1 S.C.R. 297). Unlike, for example, a breach of s. 11(b), remedies short of a stay may be appropriate. For a stay to be granted following a finding of abuse of process, the facts must rise to the level of being the clearest of cases (see: O’Connor at paragraph 68).

[59] I now consider the arguments of the Applicant related to the count in question.

[60] His argument is twofold: one, after being told he would not be charged, he participated in the CMTO proceeding and provided detailed information to investigators. He would not have done that had he known a charge was coming. Two, the police effectively going back on their word despite no new evidence offends the principles of fair play and decency.

[61] In my view, there is a real cause for concern on the Applicant’s part. His response to the CMTO complaint is in the hands of the Crown. This is a problem, but perhaps not an insurmountable one. The Crown has committed not to use the CMTO materials, neither as part of its case nor in cross-examination should the Applicant choose to testify. I have no trouble taking the Crown at its word that it would not use the CMTO materials inappropriately. Certainly, if it did, the Applicant would be within his rights to renew this application with a bolstered argument of actual prejudice.

[62] The larger problem is that the CMTO gave his response to the Complainant. In argument, I brought up with the Crown the fact that when meeting with complainants, the Crown does not provide them with statements from the accused person. The reason for this is abundantly clear: they do not want the accused’s version of events to influence the complainant’s version. It’s the same reason we routinely see orders excluding witnesses from the courtroom during trials. Justice requires that each witness give their account of events independent of influence by other witnesses. If a witness is permitted to see or hear what someone else has to say, it will be impossible to determine if their statement or testimony is truly their own, or if it is the product of incorporating and responding to someone else’s.

[63] The Crown argues that full cross-examination of the Complainant can address this issue. I see that as a partial answer. It may allow defence counsel to uncover obvious cases of the Complainant reacting to the Applicant’s account, but that’s not the only concern. There is no requirement of reciprocal disclosure in the criminal law. Indeed, there is no requirement for disclosure by either party of case theory or anticipated strategy. In the present case, however, the Complainant now knows exactly what the Applicant is likely to say if he testifies. She knows his counter-arguments to her allegations. This has infringed on his ability to make full answer and defence in the manner required by law. Disclosure of the CMTO materials has forced him to show his cards while the hand is still being played. This creates a significant, overarching unfairness that is only partly solved by cross-examination.

[64] The second aspect of the Applicant’s argument is also persuasive. When a citizen is told by the state that they will not be charged with an offence arising from alleged misconduct, the citizen has a right to rely on that assurance. There is a strong societal interest in seeing people held to account for criminal behaviour, but there is also a strong societal interest in seeing law enforcement treat people fairly. I don’t mean to suggest that the police decision not to charge the Applicant in November 2017 was tantamount to an enforceable undertaking, but it was still a clear statement by persons in authority that he would not be charged. In my view, that decision should only be reversed in exceptional circumstances. There are no such circumstances present in this case.

[65] The Crown argues that the emergence of other complainants alleging similar misconduct imbues the Complainant’s accusation with new life. Respectfully, I don’t see how it does. When the decision was made not to charge, the police determined her complaint to be unfounded. They spoke with another RMT who validated the alleged conduct of the Applicant. Other unrelated complainants making similar allegations is irrelevant to the substance of the Complainant’s complaint. It still bears the same frailties it did in 2017. This is not a case where new evidence has come to light, as courts have seen with advances in DNA evidence or lost witnesses being located. Nothing changed in the Complainant’s allegations from 2017 to 2021. There was no further investigation. It’s worth noting that even as other complainants came forward, the police took no action to reopen the Complainant’s file until she came forward again. There is no indication they would have ever revisited her case had she not reminded them of it.

[66] Applying the test in Babos, I find there has been a significant impairment of the Applicant’s right to a fair trial on the Complainant’s count. The Crown and Complainant now possess his detailed response to the allegations. Further, the police resiled from their decision not to charge the Applicant despite no new evidence coming to light. The Applicant reasonably thought the criminal matter was behind him, until four years later when it returned. Separate from the issue of the CMTO disclosure, this reversal by the state invites comparison with the unfairness found by Justice Dubin in Young. Citizens have a right to expect the state to keep its word. When it doesn’t, without good reason, faith in our institutions is diminished.

[67] I find the Applicant has shown an abuse of process in the laying of count 11 in the information, on both categories set out in O’Connor and Babos.

[68] The Crown has suggested remedies short of a stay of the count. It has agreed not to rely on the CMTO materials and argued that full cross-examination of the Complainant will address any issues related to her receipt of those materials. Further, the Crown submits the emergence of other complainants justified the decision to charge the Applicant.

[69] As I said, I accept the Crown’s agreement not to make use of the CMTO materials. The issue is the Complainant receiving them. I do not see full cross-examination as a sufficient cure for the potential prejudice that arises from her having his response well in advance of trial. Beyond that, the provision of these materials to the Complainant violates the Applicant’s right to silence. It would be one thing if we were only discussing the CMTO investigation, but this has now evolved into a criminal charge. No one can force a criminal defendant to give their side of the story, but that is exactly what has happened here. It’s a breach of s. 7, and it renders the trial of this count unfair.

[70] I see no other remedy that could remove the unfairness. The Crown not relying on the materials is only a partial solution. There is no way to eliminate the unfairness caused by charging the Applicant after he gave his response to the CMTO. Continuing the prosecution of count 11 would only exacerbate the unfairness that has manifested to this point. Only a stay would answer the issue.

[71] Even though I have found pursuant to the second stage of the Babos test that a stay is the only appropriate remedy, I must still consider the third stage as the abuse in this case involves the residual category. This is mandated in paragraph 41 of Babos and confirmed in R. v. Simonelli, 2021 ONSC 354, [2021] O.J. No. 190 (S.C.J.).

[72] At paragraph 110 of Simonelli, Justice Harris stated:

To paraphrase on the critical issue of balancing, the question is whether the price of a stay on these very serious charges outweighs the gain to the administration of justice and the public: Zarinchang, para. 60; Babos, at para. 43. It is only where the "affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases" that a stay of proceedings will be warranted: R. v. Conway, [1989] 1 S.C.R. 1659 (S.C.C.) at p. 1667.

[73] The following factors weigh against a stay of proceedings:

(1) The charge is serious,

(2) The allegation involves a potential abuse of a position of trust against a vulnerable victim,

(3) Society has an interest in encouraging the reporting of sexual offences,

(4) Society always has an interest in the adjudication of criminal charges on their merits.

[74] The following factors weigh in favour of a stay:

(1) State conduct has resulted in the violation of a Charter-protected right,

(2) The Applicant has suffered actual prejudice as a result of that violation,

(3) Society has a significant interest in the state dealing fairly with all citizens, especially those accused of potential criminal wrongdoing,

(4) The prejudice suffered cannot be sufficiently relieved by any other remedy.

[75] Balancing all the above factors, and recognizing that Charter rights must be protected, I find that a stay of proceedings is the only fit remedy available.

[76] The Applicant’s application will be granted. Count 11 will be stayed.

Released: 16 January 2024 Signed: Justice S. G. Pratt