Court File and Parties

COURT FILE NO.: CR-15-0022 DATE: 20160829 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN Respondent – and – JEFFREY STONE Applicant

COUNSEL: Marc Huneault, for the Respondent Andrew Perrin, for the Applicant

HEARD: August 9, 2016

MARROCCO A.C.J.S.C.

Reasons for Judgment

[1] This matter consists of eight counts: four counts of sexual assault and four counts of sexual interference contrary to section 151 of the Criminal Code. The accused faces one count of sexual assault and one count of sexual interference in respect of each of four young girls. On August 12, 2015, the day the preliminary hearing began, the four complainants were seven, nine, ten and eleven years of age.

[2] The applicant unsuccessfully moves for an order staying all charges or, in the alternative, staying charges relating to two complainants who were seven and eleven years of age or, in the further alternative, removing two Assistant Crown Attorneys from the prosecution of this matter.

[3] The applicant offered no affidavit evidence and called no viva voce evidence. The applicant relied upon preliminary hearing transcripts dated August 12 & 13th, 2015, September 14, 2015 and November 9, 2015 as evidence of the facts described within them. Counsel for the Crown did not object to this evidence, and as a result I will do the same in giving this decision.

[4] The applicant’s factum contained a summary of the facts, however, during the course of argument counsel for the applicant indicated that he was relying upon the facts set out in paragraphs 6-31 of his Notice of Application.

[5] As a result, I have decided to set out the essence of those paragraphs in bold and where necessary amplify them by reference to the preliminary hearing transcripts. I have edited the names of the complainants from the portions of the transcript to which I refer.

[6] Finally, I will consider the cumulative effect of those paragraphs in order to determine whether an abuse of process is established.

Paragraphs 6-8 of the Notice of Application

The Crown at the beginning of the preliminary hearing brought a section 486.2(1) application to allow the four complainants to provide their testimony via CCTV. The Crown brought this application without an evidentiary basis and defence counsel objected to the application.

The court allowed the Crown to call evidence on the application.

[The Crown] gave no prior notice of the evidence to be called on this application.

[7] Section 486.2(1) of the Criminal Code provides as follows:

486.2(1) Despite section 650, in any proceedings against an accused, the judge or justice shall, on application of the prosecutor, of a witness who is under the age of 18 years or of a witness who is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, order that the witness testify outside the courtroom or behind a screen or other device that would allow the witness not to see the accused, unless the judge or justices is of the opinion that the order would interfere with the proper administration of justice.

[8] When the preliminary hearing began on August 12, 2015, one of the two Crown Attorneys in court dealing with this matter indicated that the young complainants wished to testify outside the courtroom by closed-circuit television. The defence objected because there was no affidavit evidence offered to support the application. The Crown responded by calling a witness, a person employed in the Victim Witness Assistance Programme. The defence objected to this witness because no notice had been given of the Crown’s intention to call this witness and therefore the defence claimed to have no notice of the evidence the witness intended to give.

[9] The preliminary hearing judge permitted the Crown to call the witness, indicating as well that counsel for the defence would be given time after the witness testified in chief to prepare for her cross-examination, if that was necessary.

[10] This witness testified and indicated that she had been employed with the Victim Witness Assistant Program for approximately 12 years and in that capacity had set up the closed-circuit television equipment in the Gore Bay courtroom on more than one occasion.

[11] The witness stated the ages of the complainants and stated that they had all expressed a wish to testify outside the courtroom by closed-circuit television.

[12] In addition, the witness testified that the children believed that they would begin testifying as soon as they came to court that morning. She testified that they were now very anxious because due to the argument about the use of closed circuit television they had spent two hours that morning in a small, crowded and hot office, waiting for the taking of evidence to commence.

[13] The Crown Attorney then directed the witness’s evidence to whether permitting the young complainants to testify by closed-circuit television would “interfere with the proper administration of justice”. In response to her questions, the witness explained how documents would be shown to the complainants and how counsel and the accused could, without difficulty, communicate with each other.

[14] Counsel for the defence then cross-examined the witness.

[15] Not surprisingly, the preliminary hearing judge determined that permitting these young complainants to testify outside the courtroom would not interfere with the administration of justice.

Paragraphs 9-10 of the Notice of Application

On August 13, 2015 [the seven-year-old complainant] testified at the preliminary hearing.

The Crown Attorney examined [the seven-year-old complainant] and played her video statement to the police.

[16] At the hearing the Crown Attorneys indicated that they wanted to submit an application under section 715.1 of the Criminal Code, seeking to introduce the video of the seven-year-old complainant’s prior statement to the police, so that she could watch and adopt it.

[17] At pages three and four of the August 12, 2015 transcript, the defence specifically consents to the section 715.1 order with respect to the video statement of the seven-year-old.

Paragraphs 11-21 of the Notice of Application

During cross-examination of the seven-year-old complainant the court requested a brief recess.

Upon resuming counsel for the defence expressed concern over the fact that one of the two Crown Attorneys prosecuting the case had spoken to the seven-year-old complainant during that break, offered her words of encouragement and told her she was “doing a good job.”

Counsel for the Crown readily acknowledged that he had offered those words of encouragement to the seven-year-old complainant. Counsel for the Crown advised the court that the seven-year-old complainant would continue to receive encouragement.

The court directed that the Crown Attorney not use the words “you are doing a good job” when speaking with the seven-year-old complainant and that perhaps the support person or witness worker should be used.

After some further questioning another recess was called by the court.

Upon resuming, counsel for the Crown advised the court that he had dismissed the seven-year-old complainant for the day.

Counsel for the defence noted that the two Crown Attorneys prosecuting the matter had been seen reassuringly seven-year-old complainant during the recess, hugging her and providing her with candy.

[18] As indicated, the preliminary hearing began on August 12, 2015. The seven-year-old complainant, however, was not called as a witness until the next day.

[19] During the course of her direct examination, the seven-year-old complainant watched a video of her interview with the police. While the video was playing, the seven-year-old complainant placed her head down on a doll was using it as a pillow. At this point the preliminary hearing judge took a break. During the break the complainant was provided with lunch. After the break the rest of the video was played. The transcript indicates that the complainant was singing to herself and humming while watching the video.

[20] The complainant’s cross-examination appears to have immediately begun after the conclusion of her direct examination and her adoption of the statement in the video. After a cross-examination, which encompasses approximately 20 pages of the transcript, the seven-year-old was asked where she had been touched by the accused. At this point, in response to a prompt by defence counsel, the complainant indicated she needed a break.

[21] After the break the following occurred:

MS. GREGOR: I just have a slight concern and I really don' t want to make a big deal out of it, but it's something I 've noticed a couple of times now and I want to say something because I don't want it to continue with the other children. It’s the communication with the witness by the Crown during cross and the encouragement of the child that she’s doing a job. I’d appreciate if that doesn’t happen. I don’t find it appropriate and it’s happened a few times now.

THE COURT: During - during cross....

MS. GREGOR: She’s doing cross right now and then the Crown Attorney is going in there saying, "You’re doing a good job. You’re doing a good job,” and that’s just entirely inappropriate.

THE COURT: You mean, during a break?

MS. GREGOR: Yes.

THE COURT: Oh, I see.

MR. SCHAFFER: I told her that she’s doing a good job. Your Honour, she’s shutting down. She’s a child witness. I see nothing inappropriate about it. I have not talked to her about the evidence. That’s what the prohibition is, and so she will continue to receive encouragement when she needs it.

MS. GREGOR: The encouragement should come – I mean we can in to case law on this. She’s a witness. She’s in cross - examination. She shouldn’t be – being told by the opposite side, by a lawyer, “You’re doing a great job. Good job. Keep it up." If – maybe that comes from the support worker that’s different, but in my submission coming from a Crown Attorney that’s entirely inappropriate.

THE COURT: Mr. Schaffer, if you' re – if you' re able to instead if you're going to talk to her, maybe use something other than, "you're doing a good job," like asking her if she's okay and that you know hopefully it won't be too much longer. You can have the support person say that or the witness worker, but....

MS. GREGOR: I have…

MR. SCHAFFER: I just...

MS. GREGOR: …no issue with…

MR. SCHAFFER: …don’t see the...

MS. GREGOR: …those types of comments.

MR. SCHAFFER: …distinction. I don’t see the distinction, Your Honour. I ' – I'll take Your Honour’s direction, but – thanks.

[22] Counsel for the Crown indicated that he would take the court’s direction concerning any future communication with the complainant. It would be misleading to create an impression that counsel for the Crown intended to keep encouraging the witness in the way which had resulted in counsel for the defence’s complaint to the court.

[23] After this exchange cross-examination continued. Approximately seven pages later in the transcript the preliminary hearing judge indicated that she could not understand the child’s answers and that the complainant was “laying down on the arm of her chair”. The preliminary hearing judge decided to take a break.

[24] At the conclusion of the break, counsel for the Crown advised the preliminary hearing judge that the complainant was not in a position to continue. He advised the preliminary hearing judge that the seven-year-old was crying and that she had had a long day. At this point the court made the following comment to defence counsel:

THE COURT: Okay. So will have to continue your cross of [the seven-year-old complainant] on another day.

[25] The preliminary hearing judge’s decision to continue the cross-examination of the complainant on another day was not made because counsel for the Crown had unilaterally discharged a witness for the day.

[26] Despite the judge’s decision, counsel for the defence indicated that she did not like to “interrupt the cross-examination like that. It is an odd way to do it, to stop a witness, start another witness. So my preference would be that she have a break and that I continue on.” It was at this point that counsel for the Crown indicated that the witness had been sent home. Counsel for the Crown at the same time advised that the complainant was not very far away and could be returned to the court if necessary.

[27] The preliminary hearing judge indicated that she was not going to force the complainant to continue to testify and indicated to the Crown that in future it would be better for the Crown to obtain the court’s permission before excusing the witness.

[28] The Crown Attorney then called another one of the complainants to testify. Counsel for the defence cross-examined this complainant and then two police officers were called and cross-examined.

[29] It was now the end of the court day and counsel for the defence made the following statement:

MS. GREGOR: So, the legal issue arises out of something I was told during [the 10-year-old complainant’s] testimony by my client. And prior when I mentioned the issue of the witness being reassured, I didn’t want to make a mountain out of a mole hill. So, I mentioned it briefly. Your Honour, addressed it and that was fine. I certainly appreciate the sensitive nature of these proceedings and that the children are young. Upon receiving information from Mr. Stone because I am a new – quite a new call, I consulted with two senior counsel who – who confirmed my beliefs that something had to be placed on the record. And I don't know if my friends can assist but during the break after, Your Honour, had already dealt with the issue of that I had raised with [the seven-year-old complainant] being reassured, my client informed me that that he was a little bit upset that both Crown Attorneys were seen hugging the child when she was crying, coming back into the room, getting personal candy supplies, bringing it to – to the child. This to me is – is almost shocking. I've been working on sexual assault cases with some frequency since 2011. I’ve - I've never seen anything in that regard happen, and given the nature, the age of that child, to reassure a child in that way during cross-examination, I have an issue now with the integrity of [the seven-year-old complainant’s] evidence. And upon speaking with senior counsel I just don’t know if I'm going to bring some sort of application about it , if I'm not - I don't know. I just want to make my friends aware, and the Court aware and the record aware that I see this as an issue and now a large issue.

Paragraph 22-26 of the Notice of Application

The matter returned for the continuation of the preliminary hearing on September 14, 2015.

Counsel for the defence asked the court to reconsider its earlier ruling with respect to allowing the witness to testify of via CCTV given the actions of the two Crown Attorneys.

Counsel for the defence sought leave to cross-examine the seven-year-old complainant with respect to the Crown actions.

Counsel for the defence began her cross-examination and shortly thereafter a recess was called to accommodate the witness.

Upon resuming, Ms. Haner, one of the two prosecuting Crown Attorneys can be noted on the record interacting with the seven-year-old complainant.

Counsel for the defence began her cross-examination and is interrupted when another recess was necessary.

[30] As indicated, the seven-year-old complainant re-attended on September 14, 2015 to complete her cross-examination. Instead of immediately commencing that cross-examination, counsel for the defence moved again for an order requiring the seven-year-old to testify in court rather than by closed-circuit television. The basis for the defence motion was that the hugs and candy “could not possibly allow her to understand the seriousness of these proceedings.” It is impossible to understand how counsel could ask the preliminary hearing judge to come to such a conclusion without first hearing from the complainant.

[31] The preliminary hearing judge maintained her original ruling concerning the closed-circuit television. The preliminary hearing judge did permit counsel for the defence to cross-examine the complainant about the hugs and candy.

[32] Counsel for the defence resumed her cross-examination and began asking the complainant how many times she was touched by the accused whom defence counsel referred to as “Grandpa Jeff”. Apparently, the complainant answered the question, but no one could hear her answer. The complainant was asked to repeat her answer and then the complainant asked if she could have a break.

[33] Counsel for the Crown did interact with the complainant. The entire interaction is contained in the transcript.

MS. HANER: Okay, [the seven-year-old complainant] where are you supposed to be today?

W: At school.

MS. HANER: At school.

MS. HANER: [the seven-year-old complainant]

MS. HANER: Hey, [the seven-year-old complainant] I can barely hear you. Are you there?

W: Yes.

MS. HANER: I can barely see it. I can barely see it, but I think you have a bunny in the room with you.

W: Yes.

MS. HANER: It's so small. Where’d you get that tiny little bunny?

W: It’s so big.

MS. HANER: What’s his name?

W: I named it Fuzzy the Bunny.

MS. HANER: What’s his name?

W: Fuzzy.

MS. HANER: Fuzzy the Bunny, oh, Fuzzy the Bunny. Fuzzy the Bunny, does he sleep with you?

W: I think - no.

[34] I am satisfied that this intervention was intended to try to get the complainant accustomed to speaking up so that she could be heard.

[35] I am satisfied that counsel for the defence was present when this interaction occurred because she asked the complainant immediately upon resuming her cross-examination if she knew “the lady that just stood up”.

Paragraphs 26-27 of the Notice of Application

[36] After the cross-examination resumed, it was interrupted due to noise from a fan running in the courtroom. At this point counsel for the defence objected to the continual interruptions of her cross-examination. Counsel stated that it was “very difficult to get into any sort of cross-examination for the amount of times I’ve been interrupted with this witness.”

[37] After the fan was fixed, counsel’s cross-examination recommenced and was completed without further interruption.

[38] The cross-examination dealt with two topics: the words of encouragement that the complainant had received from one of the Crown Attorneys, and specifics about the number of times and the details of the touching of the complainant.

[39] I reproduce in its entirety the cross-examination that dealt with the words of encouragement from the two Crown Attorneys who were conducting the preliminary inquiry.

Q. Okay, now do you remember I was just asking you questions about Stacy [Haner] and Jeremy [Schaffer]?

A. Yes.

Q. Okay, do you remember last time you were here?

A. Yes.

Q. And I was asking questions?

A. Yes.

Q. And Jeremy told you you did a good job, eh?

A. Yes.

Q. Did that make you feel good?

A. Yes.

Q. Yes, made you happy?

A. Yes.

Q. You like to make people happy?

A. M-hmmm.

Q. Okay, and they gave you some hugs?

A. Yeah.

Q. And that made you feel good too, eh?

A. Yes, and they gave me candy.

Q. They gave you candy? Was it good?

A. Yes.

Q. Yeah, and you got candy because you were doing a good job, right?

A. Yes.

MR. SCHAFFER: I should just say this is totally inappropriate the way she’s putting it to the witness, but it’ll go to weight.

Q. Are you comfortable around Stacy and Jeremy?

A. Yes.

Q. Have you talked to them about some of the stuff that I’ve been asking questions about like your grandpa touching you?

A. Yes.

Q. Did you talk to them about that?

A. No.

Q. Okay. When you left here last time, did you tell you sisters that you did a good job?

A. Yes.

Q. You told them that you did a good job answering my questions?

A. Yes.

Q. Did you tell your mom?

A. Yes.

A. M-hmmm.

Q. Okay.

A. How many questions do you have?

Q. Not too many more, okay?

A. How many?

[40] At this point counsel for the defence started asking questions about the specifics of the alleged touching.

Paragraph 28 of the Notice of Application

Ms. Haner then re-examined [the complainant]

(a) that the time she met with Ms. Haner they played games and drew.

(b) that she met with Mr. Schaffer on four occasions.

(c) that she does not know what Ms. Haner’s role is.

(d) that she does not know what Ms. Gregor’s role is.

(e) that she knows she is in court because “he did a bad thing”

(f) that she knows her job is to tell the truth.

(g) that she has to tell the truth and he goes to jail”.

[41] The last portion of the re-examination is in my view significant and so I have reproduced the exchange that occurred on that portion of the re-examination:

[42] “Q. Okay, and what is your job when you come here?

A. Tell the truth

Q. Oh, can you just tell me how you know that? How do you know that is your job? Who told you that?

A. I just know it.

Q. You just know it?

A. Yes.

Q. Okay, thank you.

A. I have to tell the truth and he goes to jail.

Paragraphs 30-31 of the Notice of Application

During examination in chief the following interaction takes place between Ms. Haner and AR [the 11-year-old complainant].

Q. And it was the part that you had the hardest time with just a little bit earlier, okay, but I am just going to tell you this is my last question area for you. So we are going to try to get through this together, okay?

A. M-hmmm.

Q. Okay, because I need you to answer this question for me, if you can okay?

A. Yes.

Q. Now, I know it is hard to talk about, but you have done really good so far in trying to narrow down the area that you were touched and I just need you to do – to do a little bit better and tried to tell me exactly where it is that he touched you?

Ms. Gregor again notes for the record that Ms. Haner advised the witness that she had done a good job.

[43] The above portion of the transcript, reproduced in the Notice of Application, does not explain the difficulty this 11-year-old was having.

[44] In response to the question set out above, the witness said: “why do I have to say it?”

[45] It is obvious that the difficulty is that the witness does not want to say the name of the part of her body that she says the accused touched. The Crown Attorney in an effort to resolve the difficulty suggested to the witness that she mark the part of the body on a stick figure and the witness was given a piece of paper and a pencil for that purpose.

[46] At this point counsel for the defence objected to the Crown Attorney’s suggestion. The preliminary hearing judge directed that the closed-circuit television be turned off and dealt with the defence counsel’s objection. The preliminary hearing judge overruled the objection.

[47] When the audio was turned back on, it turned out that the complainant had resolved her difficulty on her own. She wrote the name of the part of her body that she said had been touched. She wrote “touch me in the pee pee.”

The Rules of Professional Conduct

[48] Counsel for the applicant in his factum and in oral argument referred to Rule 4.04(d) of the Rules of Professional Conduct, which provides that “during cross-examination by an opposing lawyer, the witness’s own lawyer ought not to have any conversation with the witness about the witness’s evidence or any issue in the proceeding”.

The Cumulative Effect of the Conduct described by the Applicant

[49] On this application the burden is on the applicant to establish on a balance of probabilities that there has been an abuse of process and that this abuse is one of those rare “clearest of cases” for which the only appropriate remedy is a stay of proceedings. See R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309 at paras. 30 & 31.

[50] The Supreme Court of Canada has said that an abuse of process generally occurs in one of two ways: (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). See R. v. Babos at para. 31.

[51] When asked which form of abuse of process had occurred, counsel for the applicant responded without elaboration that both forms were engaged.

[52] Once the court determines that an abuse of process has occurred, it must then apply the following test to determine whether a stay of proceedings is warranted See R. v. Babos at para. 32:

(I) 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;

(II) There must be no alternative remedy capable of redressing the prejudice; and

(III) Where there is still uncertainty over whether a stay is warranted after steps (I) and (II), 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.”

[53] The Crown Attorney charged with the conduct of a criminal prosecution is much more than a disinterested spectator. He or she owes a positive duty to the court to make sure that all helpful evidence is effectively received and fully appreciated. See R. v. Boucher, [1955] S.C.R. 16 at para. 26. Living up to this responsibility is very much a case specific exercise.

[54] One of the case specific details in this case is that the two Crown Attorneys conducting this preliminary hearing were attempting to present the evidence of four complainants aged 7 to 11 years. During the course of attempting to discharge that responsibility, two young complainants were having some serious difficulty with the questioning.

[55] The difficulties associated with the evidence of children in sexual assault cases has been commented on by the Supreme Court of Canada on more than one occasion. For example, the Supreme Court of Canada said in R. v. F. (W.J.), [1999] 3 S.C.R. 569 at para. 43:

The entire court process may be alien and frightening to children, no matter how well briefed. The child finds him- or herself in a strange world, surrounded by stern and imposing adult strangers, demanding on pain of perhaps incompletely understood consequences that the child reveal what he or she knows. Sexual assault cases bring yet another anxiety. The child is asked to reveal to these imposing and intimidating strangers the most private details of what was done to him or her. From infancy, the child may have been trained not to discuss such things with strangers. He or she has acquired a sense of privacy, and perhaps a sense of shame and guilt about such matters. [Emphasis added.]

[56] Crown Attorneys prosecuting sexual assault cases involving children are expected to be aware of the Supreme Court of Canada’s observations in those types of cases and to respond to the reality of children testifying in a way that helps the children find the strength to deal with the “stern and imposing adult strangers” and reveal to these “imposing and intimidating strangers the most private details of what was done to him or her.”

[57] I attach virtually no weight to the fact that the Crown Attorney sent the witness home without seeking the approval of the preliminary hearing judge. In my view the preliminary hearing judge dealt with this particular situation in an entirely appropriate way. It is quite clear from the transcript that the preliminary hearing judge decided that the witness would be excused prior to finding out that the Crown Attorney sent the witness home. Secondly, as the Crown explained, the witness was not far away from the court house and could have returned in the unlikely event that the preliminary hearing judge made such an order.

[58] The two Crown Attorneys were attempting to console a crying seven-year-old complainant. There was no attempt to discuss the evidence that had been given that day or that could be given when she returned. As can be seen from the evidence set out below, given on re-examination when the complainant returned to court on September 14, 2015, the hugs and a candy had no effect on her appreciation of the importance of telling the truth.

Q. Okay, and what is your job when you come here?

A. Tell the truth

[59] In R. v. Bergin, (1997), 101 O.A.C. 221, 35 W.C.B. (2d) 253 (Ont. C.A.) the Ontario Court of Appeal dealt with a circumstance where on the second day of the complainant’s cross-examination Crown counsel comforted an obviously upset complainant by hugging her in front of at least some of the jurors. Apparently the complainant had become upset in the witness box during cross-examination because she thought she had lost her father’s ring and as a result the judge ordered a brief adjournment. Unfortunately, the judge left the courtroom before the jury did and some of the jurors but not the judge saw the Crown hug the complainant. The Court of Appeal indicated that Crown counsel should not have hugged the complainant in the presence of the jury. However, it viewed the conduct in context, determined that it was relatively innocuous and upheld the trial judge’s refusal to stay the proceedings. In the context of the present case, I find the conduct of the Crown in relation to a seven year old complainant testifying at a preliminary hearing, to be innocuous.

[60] With respect to the eleven-year-old complainant AR, the words of encouragement offered by the Crown, to which objection is taken, occurred during the course of the preliminary hearing in the presence of the judge and counsel for the defence. The words were recorded on the transcript. They were part of an attempt by the Crown to explain to the witness what the Crown thought was required, so that this young person’s relevant evidence would be heard by the Court. The words of encouragement were not directed to the content of the witness’s evidence. Moreover, the Crown’s encouragement had the appropriate effect. The complainant’s evidence was not lost; she found her own way to resolve the conflict she was having with naming the part of her body that she said the accused touched.

[61] There was no breach of the Rule of Professional Conduct to which the applicant refers. Neither Crown Attorney attempted to discuss the evidence, given or to be given, with either complainant.

[62] Communicating with a witness under cross-examination is not to be undertaken lightly. Generally, it is prudent to avoid doing so. It is obvious from one of the portions of the transcript referred to in this ruling that the accused objected to the attempts by both Crown Attorneys to comfort the seven-year-old complainant, and counsel for the accused alerted the preliminary hearing judge to her client’s objections. No reasonable, informed and disinterested person aware of the conduct of the two Crown Attorneys in this case and of the fact that the accused’s complaints about that conduct were promptly brought to the attention of the judge hearing the case would think that the conduct of the two Crown Attorneys compromised the fairness of the accused’s trial or undermined the integrity of the judicial process.

[63] Nothing untoward happened here. No abuse of process occurred. There is therefore no reason to determine whether this is one of those “clearest of cases” warranting a stay of proceedings.

[64] Both Crown Attorneys conducted themselves in an appropriate manner and dealt with the difficult situations with which they were presented in a way that was consistent with their obligation to this Court and the Ontario Court of Justice.

[65] Accordingly, this application is dismissed.

MARROCCO A.C.J.S.C. Released: 20160829

COURT FILE NO.: CR-15-0022 DATE: 20160829 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN Respondent – and – JEFFREY STONE Applicant

REASONS FOR JUDGMENT MARROCCO A.C.J.S.C. Released: 20160829