Court and Parties

ONTARIO COURT OF JUSTICE DATE: 2024 06 24 Caledon

BETWEEN: His Majesty the King — AND — Mesfin Weldeab

Before: Justice of the Peace S. Butany-Goyal

Heard on: June 24, 2024 Reasons for Judgment released on: June 24, 2024 (Abuse of Process Application Only)

Counsel: B. Bujnowski............................................................................. counsel for the prosecution G. Burd .............................. Legal Representative for the defendant Mesfin Weldeab

JUSTICE OF THE PEACE S. Butany-Goyal:

[1] This is a ruling on an Abuse of Process Application brought by Agent for the Defendant, Mesfin Weldeab.

[2] This decision applies to this application only, not to the trial proper.

Background

[3] Mr. Weldeab stands charged with Careless Driving and Careless Driving Causing Bodily Harm as a result of a series of motor vehicle collisions that occurred on February 24, 2023 in the Town of Caledon.

[4] Prior to the commencement of trial, the court was provided with an Agreed Statement of Facts. This statement acknowledges the fact of the collision and the injuries that were sustained. Defence advised the court that the trial was not about the collision itself, but rather about what led to it.

[5] Prior to the Defendant’s arraignment, the court was advised that the only witness likely to be called by the Crown was the Accident Reconstructionist. After arraignment, his lengthy testimony and cross examination followed.

[6] When the Defence concluded its cross examination, the Crown advised the court that it wanted to call an additional witness, specifically an eyewitness to the offence who made observations about the Defendant’s driving. Information about this witness had been provided to the defence at the pre-trial stage, but the Crown had previously notified the court at prior appearances that they were not planning to rely on the testimony of this witness.

[7] When the Crown disclosed its intention to call this additional witness, the Defence suggested that this was contrary to the pre-trial discussions, and to do so would be grounds for a mistrial. Defence stated that the Agreed Statement was an effort to minimize trial time, and to save the Crown from having to prove all the elements of its case. As such, the last-minute inclusion of an additional witness was contrary to the spirit of the pre-trial discussions, and as such sought a mistrial.

[8] When court convened the next day, I asked for submissions on the issue of whether the Crown’s actions were grounds for a mistrial. At this point, the Defence advised that their position was that the Crown’s actions represented an Abuse of Process, and as such was seeking the Constitutional remedy of a stay of proceedings. The court granted both parties an opportunity to provide written submissions on the Abuse of Process application, returning today for oral argument and decision.

[9] Both parties submitted materials in support of their respective positions. Oral arguments to support their positions were heard today.

Motion for Summary Dismissal

[10] In its responding materials, the Crown asks the court to consider a motion for Summary Dismissal, as the materials were submitted outside of the timeline, as required in the Rules. The Crown warned the court against perpetuating the “culture of complacency” that the courts have spoken out against. [1]

[11] Defence concedes that the materials were filed four days later than the Rules would require but advised of the time required in securing transcripts. Defence asks the court to exercise its inherent jurisdiction to consider the application.

[12] In the circumstances, given the brief turnaround between court dates and the time taken to retrieve transcripts, I am prepared to exercise my discretion to allow the application to be heard.

The Law

[13] Both Crown and Defence relied on the test for Abuse of Process, as follows;

Two types of state conduct meet the threshold for establishing abuse of process: conduct that compromises trial fairness ("main category") and conduct that, without necessarily threatening the fairness of the accused's trial, nevertheless undermines the integrity of the justice system ("residuaI category"). [2]

[14] The test for Abuse of Process is articulated in the Babos decision:

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” (R. v. 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). [3]

The Position of the Parties

[15] The position of the Crown is that there has been no abuse of Process and the test cannot be satisfied. The Crown contends that the witness to be called does not address the issues in the Agreed Statement of Facts and will not be relied on for the essential elements of the offence. As a result, the testimony of this witness does not interfere with the admissions already made. In addition, the Crown maintains that the witness had been disclosed to the Defence but acknowledges that it was not anticipated that the witness would be relied upon.

[16] In support of its position, the Crown also provided a copy of the transcript from the trial, in which the Crown states that she does not anticipate calling any additional witnesses, subject to the evidence of the defence. [4]

[17] Defence counsel’s position is that the Crown’s actions compromise the fairness of the trial in both the main and residual categories and cannot be saved. By deviating from an agreement made at the Judicial Pretrial, Defence asks the court to find that the crown’s conduct is egregious and prejudicial, as they compromise the integrity of the justice system and bring the administration of justice into disrepute.

[18] In support of its position Defence provides a copy of a transcript, dated April 3, 2024, in which the trial dates were confirmed, and the Crown advised the court that there would only be one witness called. [5]

Analysis

[19] The caselaw is clear about the test to be articulated when considering an abuse of Process Application. In the case before me, I am satisfied it is proper to consider whether the Crown’s conduct constitutes an Abuse of Process under either the main category or the residual category, as both were raised by Defence.

[20] The “main” category considers conduct that compromises trial fairness. The “residual” category considers conduct which, while not directly impacting the fairness of the accused’s matter, undermines the integrity of the justice system.

[21] Crown and defence entered into the trial with an agreement about how the trial would occur. The expectation was that there would only be one witness for the Crown, and that the question at issue was not the fact of the collision, but rather the question of why the collision unfolded. Through the various judicial pre-trials, Defence was provided with disclosure and a witness list. Defence was under no obligation to disclose its trial strategy at any point. Defence acknowledged that the facts articulated in the Agreed Statement were not in issue, and its focus was on the “why”. [6]

[22] It is well understood, however, that a trial is a dynamic process and events often unfold in ways that were unanticipated. It is not unusual for Defence to call a “surprise” witness, or for the Crown to call a reply witness at the conclusion of defence evidence. In appropriate circumstances, these types of unanticipated events have been found to not affect the fairness of the trial or interfere with the ability of a defendant to make full answer and defence. The Crown is entitled to prove its case as it sees fit, the requirements on the Crown is that it cannot use its power for any “oblique motive that abuses the trial process. [7]

[23] In the circumstances before me, after hearing the cross examination of the Accident Reconstructionist, the Crown indicated its intention to call an additional witness. The crown had not yet closed its case and it was open to the crown to do so. Prior to arraignment, the Crown stated that she did not expect to require any additional witnesses, but left open the possibility, and no objection was made by the defence.

[24] At the same time, Defence counsel contends that this action was not in line with the spirit of the Agreed Statement of Facts, and the defendant would not have agreed to that statement had they known about additional witnesses.

[25] In my view, the inclusion of an additional witness cannot be regarded as an attempt by the Crown to prove the elements of the offence that were articulated in the Agreed Statement of Facts, as those facts had already been accepted. Any evidence that was to be provided by the additional witness was in relation to issues that related to the question that the court was asked to consider, the “why” of the offence. Regardless of the contents of the Agreed Statement, the Crown still bears the burden of proving its case beyond a reasonable doubt. It was open to the Crown to modify her witness list as the trial progressed and, in the Crown’s view, the need arose. A lengthy witness list had been provided in disclosure and at the judicial pre-trial stage, the proposed witness was included on this list and as such were not a surprise witness. It was open to the Crown to modify its strategy as the trial evolved, and to do so is not unfair to the Defendant and does not represent an interference with the administration of justice.

[26] I appreciate that this is an unusual situation, but it is certainly open to the Defence to ask that the Collision Reconstructionist be recalled, or that additional time be given for cross examination, if required. There are ways that this can be addressed that minimize the impact on the Defence’s trial strategy, and on their fundamental right to make full answer and defence.

[27] In explaining the distinction between prosecutorial discretion and “tactics and conduct”, the Supreme Court of Canada held that, “our adversarial system does accord a high degree of deference to the tactical decisions of counsel. In other words, while courts may sanction the conduct of the litigants, they should generally refrain from interfering with the conduct of the litigation itself.” [8]

[28] As a result, I do not find that the Crown’s conduct was unfair and represented an Abuse of Process. But for greater certainty, I have also considered the test for Abuse of Process, and the requirements articulated by the Supreme court in considering whether a stay of proceedings is appropriate, I do not find that there is prejudice to the accused’s right to a fair trial or the integrity of the justice system by allowing an additional witness. I further do not find that there is no alternative remedy other than a stay of proceedings, as there are options within the trial that can address any concerns raised. Having found thus, I am not required to consider the third requirement of denunciation and preventing societal misconduct.

[29] As a result, the Application is denied. The parties should seek a new date for trial continuation.

Released: June 24, 2024 Signed: Justice of the Peace S. Butany-Goyal

[1] R. v. Jordan, 2016 SCC 27, at paras. 40-41, 45, R. v. Cody, 2017 SCC 31 at paras. 37-38 [2] R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 68, also cited in R v. Brunelle 2024 SCC 3 and R. v. Babos, 2014 SCC 16 at para. 30 [3] Babos, supra, quoting R. v. Regan [4] Transcript of Proceedings, May 1, 2024, before myself (S. Butany-Goyal), Caledon Court. [5] Transcript of Proceedings, April 3, 2024, before Justice of the Peace K. Boothroyd, Caledon Court. [6] Transcript, note 4, supra, at line 26. [7] R. v. Cook, [1997] 1 S.C.R. 1113, 114 C.C.C. (3d) 481, 7 C.R. (5th) 51, 146 D.L.R. (4th) 437, 480 A.P.R. 161, 210 N.R. 197, 188 N.B.R. (2d) 161, 1997 CarswellNB 126, 1997 CarswellNB 125, [1997] S.C.J. No. 22, 34 W.C.B. (2d) 285 (S.C.C.) at para. 58. [8] R. v. Anderson, [2014] 2 S.C.R. 167, 2014 SCC 41, 311 C.C.C. (3d) 1, 11 C.R. (7th) 1, 373 D.L.R. (4th) 577, 1088 A.P.R. 289, 458 N.R. 1, 350 Nfld. & P.E.I.R. 289, 60 M.V.R. (6th) 1, [2014] 3 C.N.L.R. 267, 310 C.R.R. (2d) 197, 2014 CarswellNfld 166, 2014 CarswellNfld 167, [2014] S.C.J. No. 41, 114 W.C.B. (2d) 278 (S.C.C.) at para. 59