COURT FILE NO.: CR-17-361

DATE: 20180522

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Applicant/Respondent

• and -

A.G.

Respondent/Applicant

Jeffrey Costain and Brian McGuire, for the Applicant/Respondent

Michael K. Quigley and Amanda M. Somek, for the Respondent/Applicant

HEARD: April 27, 2018

REASONS FOR RULING

BARNES J.

INTRODUCTION

1On January 12, 2018, I convicted A.G. of several Criminal Code charges. The complainant is his ex-wife. Prior to sentencing, the defence filed an application seeking a stay of proceedings on the basis that the Crown had engaged in conduct amounting to an abuse of process.

2The defence sought to elicit evidence from the trial Crown and some police witnesses. The prosecutor was served with a subpoena, and she was required to attend the stay of proceedings Application on April 23, 2018. The Crown sought to quash the subpoena.

3I granted the Crown’s application to quash the prosecutor’s subpoena, dismissed the defence application for a stay of proceedings, and ordered a mistrial. These are my reasons.

BACKGROUND FACTS

4On June 10, 2016 and June 23, 2016, the complainant gave videotaped statements to the police. She made allegations against the accused.

5She alleged that the accused threatened to kill her during a phone call on June 10, 2016. On the same day, she alleged that he entered her home and took away their two children without her consent. The accused was bound by a recognizance with a house arrest condition at the time.

6The complainant told the police that on June 23, 2016, the accused broke into her home with an unidentified male companion, confined her in a chair, and used a handgun to threaten to kill her.

7As a result of these allegations, a warrant was issued for the accused’s arrest. On July 13, 2016, the accused was arrested. Police allege that upon his arrest, he was found to be in possession of two stolen cell phones, a restricted firearm, and a magazine for storing ammunition in a firearm.

8Based on the complainant’s evidence to the police, the accused was charged with uttering a death threat on or about June 10, 2016, break and enter a dwelling house on or about June 23, 2016, unlawful confinement of the complainant, possession of a weapon for a purpose dangerous to the public peace, and uttering a death threat, contrary to the Criminal Code.

9Based on the circumstances arising from his July 13, 2016 arrest, he was charged with carrying a concealed weapon without authorization, possessing a firearm for a purpose dangerous to the public peace, possessing a restricted weapon, and careless storage of a firearm and careless storage of ammunition, all contrary to the Criminal Code.

10On October 13, 2016, the complainant swore an affidavit recanting her allegations against the accused. She was cross-examined on her affidavit at a Bail Review hearing on October 13, 2016, and recanted her allegations against the accused. On March 20, 2017, she testified at a preliminary inquiry and recanted her allegations against the accused.

11The complainant was subpoenaed to testify at the accused’s trial on November 14, 2017. She did not attend court as ordered. On November 16, 2017, at the request of the Crown, I issued a material witness warrant, pursuant to Subsection 705(1) of the Criminal Code, for the arrest of the complainant.

12The Crown brought a Khan application to admit the complainant’s June 10, 2016 and June 23, 2016 statements for the truth of their contents. This application was granted. The defence brought a Khan application for the admission of the complainant’s affidavit sworn on October 13, 2016, and transcripts of her preliminary inquiry and bail review testimony where she recanted her allegations against the accused. This application was granted.

13The trial began on November 14, 2017. The Crown closed its case on December 4, 2017. The defence called no evidence. The Court reserved judgment. On December 7, 2017, the police arrested the complainant on the material witness warrant. On that same date, the police released the complainant without bringing her into court.

14On January 12, 2018, on the face of what I found to be overwhelming evidence corroborating her allegations, I rejected the complainant’s recantation as untruthful. I was satisfied of the accused’s guilt beyond a reasonable doubt and convicted him of all charges. The case was adjourned to March 22, 2018 for sentencing.

15On March 7, 2018, defence counsel asked the trial Crown whether further efforts had been made to locate the complainant. On March 14, 2018, Crown counsel informed defence counsel that the complainant had been arrested and released by the police on December 7, 2017.

16On March 22, 2018, defence counsel informed the court that he had filed an Application seeking a stay of proceedings. This was based on the failure of the prosecutor to disclose her instructions to the police to remove the material witness warrant from CPIC and to disclose that the complainant had been arrested and released by the police on December 7, 2017.

17The Application was adjourned to April 23, 2018 for argument. On April 17, 2018, defence served the prosecutor and four Peel Regional Police officers with subpoenas, requiring them to attend and provide evidence on the Stay Application.

ISSUES AND ANALYSIS

a) Quashing the prosecutor’s subpoena

Relevant Legal Principles

18A party seeking to call counsel as a witness in a trial must satisfy a stringent test. Counsel seeking to compel trial counsel to testify must demonstrate that the trial counsel, either Crown or defence, has evidence to give which is relevant and necessary. Calling counsel as a witness shall be permitted only in exceptional circumstances. Criminal litigation would be impossible if there was an unrestricted right to call opposing counsel as a witness: R. v. Elliott, 2003 24447 (ON CA), [2003] O.J. No. 4694 (C.A.), at paras. 125 and 126.

19The necessity criterion is not satisfied where there are other sources for the evidence sought from trial counsel: R. v. Newbergh, 2016 ONSC 2877, [2016] O.J. No. 2367, at paras. 31-32.

Position of the Defence

20The defence seeks to call the trial Crown to explain why she did not inform the court and the defence that: 1) she that instructed the police to remove the material witness warrant from CPIC; and 2) that the police had arrested and then released the complainant without bringing her to court.

21The defence submits that answers to their questions are materially relevant, because the prosecutor’s actions deprived the accused of the ability to apply to the court to reopen the case to enable defence counsel to cross examine the complainant. It is argued that the prosecutor’s conduct constitutes an abuse of process because it strikes at the heart of the integrity of the judicial process. The defence submits that the prosecutor’s testimony is necessary because she is the only one who can provide answers to these questions.

22The defence submits that the prosecutor’s conduct affected the fairness of the trial, and that the prosecutor’s conduct “contravenes fundamental notions of justice and thus undermines the integrity of the judicial process”: R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411 (S.C.C.), at para. 73. The impugned conduct arises from the prosecutorial duty to disclose. Under all the circumstances, the prosecutor has materially relevant evidence to give.

Position of the Crown

23The Crown submits that defence has failed to provide an evidentiary basis that the prosecutor is likely to give material evidence relevant to the stay/mistrial application. Further, any testimony prosecutor may have is not necessary because the evidence sought from her can be obtained from: 1) the Peel Regional Police Officers involved in the arrest and release of the complainant; and 2) a review of documents generated as a result of efforts to remove the material witness warrant from CPIC and the arrest and release of the complainant.

Analysis

24The text messages between Officer Cutler and the prosecutor show that on December 5, 2017, the prosecutor and Officer Cutler agreed that the material witness warrant should be removed from the CPIC system.

25Officer Cutler said the decision to remove the material witness warrant from CPIC was a mutual one between himself and the prosecutor. However, in a letter to defence counsel dated March 26, 2018, the prosecutor said the decision to remove the material witness warrant from CPIC was her own. I find that the prosecutor instructed Officer Cutler to remove the warrant from CPIC and the police set off a series of events to comply with her direction.

26The complainant’s children attend school. Police Officers McDonald, Haggett and Farrell testified that on December 7, 2017, the police were notified by the school that the complainant was at the school.

27The police went to the school. While at the school, the officers saw two men observing the complainant. The men told the police that they were relatives of the accused. The police arrested the complainant at the school pursuant to the material witness warrant. The police on scene informed Constable Cutler, who told them that the material witness warrant was being rescinded and the complainant should be released. The arresting officers released the complainant unconditionally. I find that the officers acted in the manner that they did to comply with the prosecutor’s instructions that the warrant should be removed from CPIC.

28Officer Cutler relied on the text messages between himself and the prosecutor to infer that he told the prosecutor about the police apprehension of the complainant on March 13, 2018. He made no notes and he was not sure. The text messages suggest that on March 13, 2018, Officer Cutler told the prosecutor that the complainant had been arrested pursuant to the warrant and released. I find that the prosecutor was informed of the arrest and release of the complainant on March 13, 2018.

29Email communications between the prosecutor and the defence counsel show that on March 7, 2018, defence counsel asked the prosecutor whether the police had ever found the complainant. On the same date, the prosecutor informed defence counsel that the Victim Witness Assistance Program (VWAP) had traded messages with the complainant on February 12 and 15, 2018 and a representative of VWAP had spoken to the complainant on February 16, 2018.

30In her letter dated March 26, 2018 to defence counsel, the prosecutor states that she decided to remove the material witness warrant from CPIC because she did not want the complainant, a mother of two young children, to be detained and arrested needlessly after her statement had been admitted and the trial completed. The prosecutor explained she made the decision because the defence counsel had conceded necessity, and did not request that the warrant remain on CPIC after the trial was completed.

31While the relevance of the prosecutor’s testimony is apparent, in respect to necessity, I find that the defence has not satisfied this threshold. The defence’s argument that only the prosecutor can explain why she failed to disclose the information described is persuasive, however, the prosecutor has provided reasons for her decision to remove the warrant from CPIC in her letter dated March 26, 2018. I am satisfied that the reasons for non-disclosure can be gleaned from the prosecutor’s letter.

32The evidentiary record reveals that the evidence the accused wishes to elicit from the prosecution is available from other sources. Thus, the necessity requirement as articulated in Elliot has not been made out and the subpoena for the prosecutor is quashed.

b) Defence Application for a Stay of Proceedings

Position of the defence

33The defence submits that the actions of the prosecutor did not imperil the conduct of the trial “because the impugned conduct occurred after the evidence was in, but that does not mean that the circumstances did not result very clearly in compromising fairness to the accused”. The defence argues that the actions of the prosecutor contravenes fundamental notions of fairness and impugns the integrity of the justice system, because it deprived the accused of the option of seeking a reopening of the case to cross-examine the complainant. Thus, the accused’s ability to make full answer and defence is impaired.

34The defence submits that the conduct of the prosecutor was improper and made in bad faith. Within 24 hours after the complainant’s statements were admitted into evidence, the prosecutor directed the police (Constable Cutler) to remove the material witness warrant from CPIC, effectively preventing the enforcement of the material witness warrant. The prosecutor did not inform the court and defence of her intention to do so. The police arrested the complainant 2 days after the prosecutor gave the instruction.

35Officer MacDonald testified that but for the intervention of Officer Cutler, the warrant would have been properly executed and the complainant would have been properly brought to court. Officer Cutler obstructed a lawfully executed warrant. On March 22, 2018, the Crown requested outright dismissal of the defence application, even though the Crown knew that relevant and pertinent disclosure had not been made to the defence. At least as of March 7, 2018, the prosecutor knew that the complainant had been in contact with VWAP, but failed to notify the defence or the court until the defence reached out to her on March 7, 2018.

36The defence submits that the actions of the prosecutor and Officer Cutler to remove the warrant was a tactic aimed at ensuring that no intervening events, such as the arrest of the complainant, would upset the favorable rulings the Crown had obtained on the Khan application.

37It is the position of the defence that the unwillingness of the Crown to acknowledge the impropriety of the prosecutor’s actions is an indication of wider systematic issues. Thus, this is one of those clearest of cases that warrant a stay of these proceedings.

Position of the Crown

38The Crown submits the decision to remove a material witness warrant from CPIC falls under prosecutorial discretion and only subject to judicial review for abuse of process. These is no evidence of improper motive or bad faith in the exercise of prosecutorial discretion, and therefore the prosecutor is presumed to have exercised her discretion in good faith.

39The Crown argues that there is no evidentiary basis to impugn the character of the prosecutor. The Crown observes that the defence application is not based on an allegation that the prosecutor’s conduct impacts the trial unfairly, but rather, that the conduct contravened the principles of fundamental justice and would undermine the integrity of the judicial system (the residual category of the O’Connor framework discussed below).

40The Crown argues that the threshold to obtain a stay is high; there is no judicial authority in support of the position that material witness warrants should remain on CPIC until a trial is completed. The prosecutor and police exercised their discretion to remove the warrant on a good faith basis.

41The Crown submits that the defence conceded necessity at the Khan application. Given the complainant had recanted at the bail hearing and the preliminary inquiry, it was reasonable to expect the complainant to recant at the trial and therefore her testimony would reveal nothing new. At the close of the evidentiary portion of the trial, the defence never requested that the warrant remain on CPIC and even if the prosecutor made an error, it was made in good faith.

Relevant Legal Principles

i) Material witness warrant

42According to Section 705(1) of the Criminal Code, where a person who has been served with a subpoena to give evidence does not attend, the court, judge, justice or provincial court judge before whom that person was required to attend, may issue a warrant for that person’s arrest, if it is established that the subpoena was served in accordance with this Part of the Criminal Code, and the person is likely to give material evidence.

43Subsection 705(1) stipulates that the warrant shall be issued in accordance with Form 17. The warrant, as issued, includes an order requiring the person to be brought before the court upon the execution of the warrant:

This is therefore to command you, in her Majesty’s name, to arrest and bring the witness forthwith (set out court or justice) to be dealt with in accordance with section 706 of the Criminal Code.

44As set out in Section 706 the Criminal Code, where a person is “brought before a court, judge, justice or provincial court judge under a warrant issued pursuant to subsection 698 (2), or section 704 or 705, the court, judge, justice or provincial court judge may order that the person be detained in custody, or released on a recognizance in Form 32, with or without sureties, to appear and give evidence where required”. This order is not time limited or discretionary.

45There is no authority for the police to refuse to execute the warrant or for the Crown to instruct the police not to execute the warrant. The warrant is a judicial order. If the warrant is no longer required, the proper procedure is to bring the warrant before the applicable court, judge, justice or provincial court judge to be rescinded.

46Material witness warrants may need to be vacated in several circumstances. A party seeking to set aside a material witness warrant must apply to the court, judge, justice or provincial court judge who issued the warrant for the recession of the warrant.

ii) Judicial review of Crown decision making

47For the purposes of judicial review, decision making by the Crown falls into two categories: (1) decisions about tactic or conduct before the court which can be reviewed under the court’s inherent jurisdiction to control its own process: (2) decision making under the exercise of prosecutorial discretion which can only reviewed for abuse of process: R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566, at para. 20 and 21; R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167 at para. 35.

48Crown decision making that involve matters of trial conduct and trial tactics are subject to judicial review. Such conduct does not have to constitute an abuse of process for judicial review. The judicial power to review is derived from the inherent jurisdiction of the court to control its own process: Anderson, para.58, 61. Examples of decisions that fall under trial tactics and conduct, include the decision to ignore court rulings or orders;” inappropriate behavior such as tardiness, incivility, abusive cross-examination, improper opening or closing addresses or inappropriate attire. Sanctions may include orders to comply, adjournments, extensions of time, warnings, cost awards, dismissal and contempt hearings”: Anderson, para. 58.

49Prosecutorial discretion is reviewable for abuse of process. Prosecutorial discretion refers to decisions that relate to the core of the Attorney General’s function as a quasi-judicial officer. These are decisions which determine whether a prosecution should be brought, continued, or ceased, and if so, what it should be for: Anderson, at para. 39 and 40; Nixon, at paras. 30, 47.

50Abuse of process refers to Crown conduct that is “egregious and seriously compromises trial fairness and /or the integrity of the justice system.”: see Anderson, at para. 50. Absent evidence of bad faith or improper motives, the court is entitled to assume the Crown exercised its discretion properly: Sriskandarajah v. United States of America, 2012 SCC 70, [2012] 3 S.C.R. 609, at para. 27; Dykstra v. Greensword, unreported decision of Durno J., March 29, 2016, at paras. 115 and 125.

51A non-exhaustive example of decisions that fall under prosecutorial discretion include: whether to prosecute a charge laid by the police; whether to enter a stay of proceedings in either a private or public prosecution; the decision to accept a guilty plea to a lesser charge; the decision to withdraw from Criminal proceedings; the decision to take control of a private prosecution; to initiate an appeal; to commence a dangerous offender application; to proceed summarily or by indictment; to prefer an indictment; the decision to charge multiple offences etc.: Nixon at para. 40; Anderson at para. 44.

52There is a distinction between prosecutorial discretion and prosecutorial duty. For example, the obligation to disclose is a matter of prosecutorial duty, not prosecutorial discretion. Therefore, the decision to disclose or not disclose is reviewable by the court: Anderson, at para. 45; Stinchcombe at paras. 20-24.

iii) Duty to Disclose

53The fruits of disclosure are not the property of the Crown. Disclosure is the property of the public. Disclosure is to be used to ensure that Justice is done. The Crown has an ongoing duty to provide disclosure to the defence subject to issues of relevance, legal privilege and to protect the identity of informants. The Crown’s discretion is reviewable by the trial judge under the general principle that disclosure may not be withheld if to do so would impair the accused’s ability to make full answer and defence: R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326, at paras. 12, 20 to 24. The Crown must justify its decision not to disclose relevant material: R. v. Egger, 1993 98 (SCC), [1993] 2 S.C.R. 451, at para. 19.

54In circumstances where the defence has overlooked [or does not have] relevant evidence, the Crown has the obligation to inform the court of such evidence: R. v. MacInnis, [2007] O.J. No. 2930 (S.C.), at para. 15.

55The obligation on the Crown to disclose relevant information at a trial remains until the trial is completed. The trial is completed when the trial judge is functus officio. Further, the obligation to disclose encompasses the appeal period: R. v. Trotta, 2004 60014 (ON CA), [2004] O.J. No. 2439 (C.A.), at paras. 21 to 25.

56A trial judge is not functus officio after a finding of guilt until they have imposed sentence. Until then, the judge has discretion to reopen a case even after a conviction has been entered: R. v. Lessard (1976), 1976 1417 (ON CA), 30 C.C.C. (2d) 70 (Ont. C.A.), at paras. 12-14; [R. v. Hayward 1993), 1993 14679 (ON CA), 86 C.C.C. (3d) 193 (Ont. C.A.), at para. 15. Once the trial judge is functus, the only avenue to seek a remedy is on appeal.

iv) Abuse of process

57The common law doctrine of abuse of process separates state conduct 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).

See: O’Connor, at para. 77; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31.

58The defence quest for a stay of proceedings is based primarily on the residual category, on the basis that the prosecutor’s conduct impaired his ability to make full answer and defence thus contravening fundamental notions of fairness and undermining the integrity of the justice system.

v) Appropriate Remedy for an abuse of process

59Where the court finds that there has been an abuse of process, either for non-disclosure in violation of s. 7 of the Charter, or for some other reason, the court must determine the just and appropriate remedy. A stay of proceedings is a remedy of last resort, and is only to be employed where all other methods to preserve the accused’s right to full answer and defence are exhausted. The declaration of a mistrial, although an extreme remedy, is to be considered before the granting of a stay: see O’Connor at para. 77.

60In determining the appropriate remedy for a s. 7 violation based on non-disclosure, the Court should consider “whether the Crown's breach of its disclosure obligations has also violated fundamental principles underlying the community's sense of decency and fair play and thereby caused prejudice to the integrity of the judicial system. If so, it should be asked whether this prejudice is remediable”: see O’Connor at para. 78. Further, the Supreme Court in O’Connor instructed at para. 79 that:

Among the most relevant considerations are the conduct and intention of the Crown. For instance, non-disclosure due to a refusal to comply with a court order will be regarded more seriously than non-disclosure attributable to inefficiency or oversight. It must be noted, however, that while a finding of flagrant and intentional Crown misconduct may make it significantly more likely that a stay of proceedings will be warranted, it does not follow that a demonstration of mala fides on the part of the Crown is a necessary precondition to such a finding…

61In the present case, there are three viable remedies if a s. 7 violation is found, bearing in mind that a finding of guilt has already been recorded. First, the Court can allow the defence to re-open the case and call the complainant to testify. Second, the Court can declare a mistrial: see R. v. Arabia, 2008 ONCA 565 at para. 49. Third, the Court can grant a stay of proceedings: see O’Connor at para. 77. Other more obvious remedies that typically occur in non-disclosure cases, such as the granting of an adjournment or a disclosure order (see O’Connor at para. 76 and 77), are not appropriate in this case, given the extreme late stage of this case and the fact that a finding of guilt has been recorded.

62The leading authority for the test to re-open a case is R. v. Kowall, 1996 411 (ON CA), [1996] O.J. No. 2715 (Ont. C.A.), which provides:

The test for re-opening the defence case when the application is made prior to conviction has been laid down by this court in R. v. Hayward (1993), 1993 14679 (ON CA), 86 C.C.C. (3d) 193 (Ont. C.A.). However, once the trial judge has convicted the accused a more rigorous test is required to protect the integrity of the process, including the enhanced interest in finality. It seems to have been common ground in this case that the most appropriate test for determining whether or not to permit the fresh evidence to be admitted is the test for admissibility of fresh evidence on appeal laid down in Palmer and Palmer v. The Queen (1979), 1979 8 (SCC), 50 C.C.C. (2d) 193 (S.C.C.) at page 205 (see R. v. Mysko (1980), 1980 2057 (SK CA), 2 Sask. R. 342 (C.A.)). That test is as follows:

(1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases …;

(2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue at trial;

(3) the evidence must be credible in the sense that it is reasonably capable of belief; and

(4) it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

These criteria provide helpful guidance to a trial judge faced with an application to reopen after conviction. In addition to the Palmer criteria, a trial judge must consider whether the application to reopen is in reality an attempt to reverse a tactical decision made at trial. Counsel must make tactical decisions in every case. Assuming those decisions are within the boundaries of competence, an accused must ordinarily live with the consequences of those decisions. Should the trial judge find that the test for reopening has been met, then the judge must consider whether to carry on with the trial or declare a mistrial.

[Emphasis added].

63Following findings of guilt, the remedy of re-opening a case should only be exercised in extreme circumstances: see R. v. Drysdale, 2011 ONSC 5451 at para. 12, Lessard, at p. 73.

64The test for a mistrial lies within the discretion of the trial judge, “ “who must assess whether there is a real danger that trial fairness has been compromised”: R. v. Khan, 2001 SCC 86, 2011 SCC 86, [2001] 3 S.C.R. 823, at para. 79; R. v. G.C., 2018 ONCA 392, at para. 3.

65Lastly, the test used to determine whether charges to should be stayed was articulated Babos at para. 32 as follows:

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";

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".

[Citations omitted].

vi) Does the state conduct constitute an abuse of process?

66The Attorney General is entrusted with the public trust to have carriage of criminal prosecutions in accordance with the values of a free and democratic society. This quasi-judicial role comes with great responsibility and society holds the Attorney General to a very high standard. This standard is aptly described by the Supreme Court of Canada in Boucher v. King, 1950 2 (SCC), [1951] S.C.R. 265, at pg. 23-24, as follows:

It cannot be over emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is an alleged crime. Counsel have a duty to see that all available legal proof of the facts is presented. It should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of the prosecutor excludes any notion of winning or losing; his [or her] function is a matter of public duty that which in civil life there can be none charged with greater personal responsibility. It is to be effectively performed with an ingrained sense of the dignity, the seriousness and the justness of the judicial proceedings.

67The decision of the prosecutor to remove the material witness warrant from CPIC is a matter of prosecutorial discretion and reviewable only for abuse of process. For reasons articulated below, I have concluded that the prosecutor did not exercise her discretion in bad faith. Her decision to remove the material witness warrant from CPIC does not constitute an abuse of process and is not subject to judicial review. It is the manner in which she exercised her duty to disclose that is under review.

68The non-disclosure in this case relates to the Crown’s failure to disclose to the Court and the defence that they had instructed the police to rescind the material witness warrant, and further, that the complainant had been arrested and released pursuant to that warrant.

69A material witness warrant is a judicial order pursuant to section 705 (1) Criminal Code. There is no authority for the police, Crown, or other body to rescind a material witness warrant. This must be done by the appropriate court, judge, justice or provincial court judge. The authority for dealing with a person arrested under a material witness warrant rests with the court, justice, judge or provincial court judge pursuant to section 706 Criminal Code. There is no authority for the police, Crown or other body to refuse to execute a material witness warrant or to rescind a material witness warrant.

70In this case, rather than applying to the Court to seek the removal of the material witness warrant, the Crown instructed the police to remove the material witness warrant. The effect of the prosecutor’s decision to do so was to in effect interfere with the ability of the police to carry out a lawful order. The acquiescence of the police does not detract from the fact that this amounted to improper conduct by the state to hamper the execution of a lawful order.

71It is reasonable for the court and the defence to assume that the material witness warrant sought by the prosecutor and granted by the court will still be in effect unless rescinded by the court. I take judicial notice that without appearing on the CPIC system, a warrant is rendered virtually useless as there is no other mechanism of widespread notice to the law enforcement of the existence of the warrant.

72It is also reasonable for the court and the defence to assume that the prosecutor would disclose to the court its intention to remove the warrant from CPIC by applying to the court to rescind the warrant. This also engages issues of fundamental notions of trial fairness, because it prevented the defence from the opportunity to make submissions to the court on why the material witness warrant should not be rescinded.

73In addition to interfering with the execution of a lawful judicial order, the prosecutor’s conduct in this case contravenes the prosecutorial duty to disclose. The trial was not complete. The removal of a material witness warrant, for a central witness, from CPIC, is a materially relevant fact that should have been disclosed to the court and the defence. Thus, the prosecutor failed to carry out her duty to disclose. The decision to disclose or not disclose is reviewable by the court: R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 45, 46.

74Furthermore, the complainant contacted the VWAP in February, 2018. The trial had not been completed. This is a central witness subject to a material witness warrant. This relevant information should have been voluntarily disclosed to the defence.

75The police arrested the complainant on December 7, 2017, three days after the court had admitted her statements for the truth of their contents. The prosecutor did not find out about this until March 13, 2018. The police released the complainant unconditionally as a result of the prosecutor’s instructions to remove the warrant from CPIC.

76On March 22, 2018, the defence informed the court that it had brought an Application to stay these proceedings and sought an adjournment of sentencing. At this appearance, the prosecutor submitted to the court that there was no evidentiary basis to support the defence Application for a stay of proceedings and the Application should be summarily dismissed. The prosecutor was entitled to make such a submission, but it was premature. By that date, the prosecutor was aware that the police had arrested and released the complainant, and that the defence had not yet received disclosure of the notes of police officers who had arrested and released the complainant, neither had the defence received the prosecutor’s letter of March 26, 2018, which provided further information on the circumstances surrounding efforts to remove the material witness warrant from CPIC.

77The purpose of the appearance was to enable the parties to prepare to argue the defence application for a stay of the proceedings. Under all those circumstances, the prosecutor’s submissions were premature and unfair. The duty to disclose relevant information had not been completed on March 22, 2018.

78The prosecutor did not voluntarily disclose any of this information until the defence inquires of March 7, 2018. There is some evidence that the accused’s relatives may have known about the whereabouts of the complainant at least as of December 7, 2017. I am not able to make a definitive finding on the evidence. Even if this were the case, this does not justify the prosecutor’s failure to disclose materially relevant information relating to a central witness. The prosecutorial duty to disclose is not diminished by the possibility that the accused may have information related to the fruits of the investigation from his or her own sources. This is not one of the justifications for non-disclosure permitted in Stinchcombe.

79I do not accept the defence submission that the prosecutor and the police had an oblique motive or bad faith for their actions. On the contrary, earlier on Constable Cutler made extensive efforts in an attempt to ensure that the complainant was available to testify at trial. In addition, the prosecutor’s letter dated March 26, 2018 and text messages between the prosecutor and Constable Cutler reveal that the decision to remove the material witness warrant from CPIC was driven by a sincere concern for the well-being of the complainant. A finding of bad faith on the part of the state actor is not a prerequisite for a finding that the state conduct constitutes an abuse of process: O’Connor, at para. 79

80In this case, the complainant was the central piece of the Crown’s case. The prosecutor’s conduct prevented the defence from applying to reopen the case. Despite the fact that the complainant had recanted in an affidavit, at a bail and preliminary inquiry, she had not been subjected to the full rigors of cross-examination at trial. It is improper to speculate that her evidence at trial would be a useless exercise. She was a central witness and the accused should have the opportunity to confront his accuser at trial. This is a fundamental component of the justice system in a free and democratic society. The prosecutor’s actions strikes at the fundamental notions of fairness and risks undermining the integrity of the judicial system. This conduct constitutes an abuse of process under the residual category articulated in O’Connor.

vii) What is the appropriate remedy in this case?

81The test for a stay of proceedings requires “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”: see Babos above. Prosecutorial conduct which interferes with the lawful execution of a judicial order, in this case a material witness warrant, would be manifested, perpetuated or aggravated without a judicial response. I am however, not satisfied that it “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome”. Another remedy, short of a stay of proceedings, is warranted.

82As stated above, the two other viable remedies in this case are the reopening of the case to enable the complainant to testify, or the declaration of a mistrial. The Crown submits that the defence cannot meet the legal prerequisites for reopening the case or for mistrial.

83The nature of the evidence to have been introduced in an application to reopen is evidence that was not previously in the possession of the defence because of the failure of the prosecution to disclose. This is not evidence in the possession of the defence; the complainant, is the Crown’s central witness, she was not subjected to the same rigours of cross-examination at the bail hearing or preliminary inquiry as would be possible at her trial and therefore it cannot be assumed that her evidence cannot reasonably affect the result.

84I will grant the defence application to reopen and vacate the findings of guilt, however this is not an appropriate remedy. In many respects, this case is similar to R. v. Drysdale, 2011 ONSC 5451. The Court of Appeal, in R. v. Griffith, 2013 ONCA 510, approved of the approach taken in Drysdale for cases such as these. The Court summarized Drysdale in Griffith, stating that “the trial judge, in convicting the accused, had made very strong adverse credibility findings after rejecting the accused’s evidence on a key issue going to identification. New evidence touching on identification came to light at the sentencing hearing, and the trial judge permitted the trial to be reopened and the findings of guilt set aside. The trial judge then concluded that the only reasonable course of action would be to declare a mistrial because, in light of the credibility findings, any attempt to judge the accused’s credibility on a different basis would be disingenuous”: Griffith, at para. 40.

85I have made extensive adverse credibility findings against the complainant in regards to her recantation of her allegations. I appear tainted and any attempt to assess her credibility on a different basis will be disingenuous if I were to hear her testimony at this trial. Therefore, having concluded that the impugned conduct constitutes an abuse of process because it violates fundamental notions of fairness and risks undermining the integrity of the judicial system, the appropriate remedy is a mistrial: R. v. Drysdale, 2011 ONSC 5451.

86Even if I were uncertain as to whether a stay of proceedings is warranted, the accused is facing serious charges. Though the impugned conduct contravenes fundamental notions of fairness and risks undermining the integrity of the judicial system, there was no bad faith on the part the state actors, and there are other less drastic remedies to address the state‘s conduct and society’s interest in the final resolution of these serious charges. The less drastic, although harsh remedy, of a mistrial, can achieve these objectives.

87The defence application for a stay of proceedings is dismissed. The convictions are vacated and a mistrial will be ordered after the court has considered the defence application for judicial interim release. For reasons articulated in R. v. A.G., 2018 ONSC 5663, this remedy is limited to the June 9 and 23, 2016 charges.