COURT FILE NO.: CR 101235

DATE: 2021-09-15

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

J. Forward, for the Crown Attorney

Respondent

• and -

TONY STRYBOSCH

B. Jefferies, for the Applicant

Applicant

HEARD: August 25, 2021

RULING WITH RESPECT TO ABUSE OF PROCESS APPLICATION

A. J. GOODMAN J.:

1The applicant is charged with sexual assault and sexual interference in relation to the complainant, C.T., contrary to the provisions of the Criminal Code, R.S.C. 1985 c. C-46.

2The applicant seeks a stay of proceedings pursuant to ss. 7, 11(d) and 24(1) of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11 (“Charter”) to address the alleged prosecutorial indiscretion in relation to the repudiation of a plea agreement.

Positions of the Parties:

3Mr. Jefferies, on behalf of the applicant, submits that a stay of proceedings is the only available remedy to address the Crown’s and the Assistant Crown Attorney’s (“ACA”) (not Ms. Forward) conduct in this case.

4On June 26, 2021, immediately following an audio recorded call with the complainant, the Crown repudiated a resolution agreement with the Applicant. The Crown, in repudiating the resolution agreement, inappropriately suborned the public interest to the complainant’s personal agenda. The decision to repudiate the plea agreement was made despite the Crown’s acknowledgement that the case is “almost unwinnable”. The Crown, in an effort to buttress its decision to repudiate the plea agreement, referred and relied on “new information” when, by the admission of then-ACA, there was no new information.

5The applicant submits that the repudiation of the resolution agreement, based on all of the circumstances, is so unfair, oppressive, and tainted by improper motive that to allow the prosecution to proceed would tarnish the integrity of the judicial system. The abuse of process stems from the residual category, as outlined in the jurisprudence and can only merit the relief of a stay of proceedings.

6Ms. Forward responds that there is no abuse of process whatsoever warranting the relief sought in this application. The Crown acted in accordance with the new information provided to her and made a reassessment based on her reassessment of the case.

7The Crown says that a full and fair reading of the record does not support these assertions. Rather, the applicant has cherry-picked phrases and taken comments made by the ACA to the complainant out of context. Read as a whole, the record demonstrates that the ACA understood her quasi-judicial role as a minister of justice. She acted in good faith, with no improper motive. She sought out and received the approval of the Waterloo Region Crown Attorney before effecting the repudiation. She provided detailed and cogent reasons for repudiating the resolution agreement – a decision that is within prosecutorial discretion.

8Moreover, the applicant has not established any prejudice to his fair trial interests, nor has he established any improper conduct, bad faith, or improper motive. This is not one of the “clearest of cases” where a stay of proceedings should be entered. The Crown asserts that a stay of proceedings is an extraordinary remedy. The Crown submits that there is no abuse of process and the ACA acted appropriately in her ongoing assessment of the merits of the cases and arriving at a decision to renege on the agreement with the defence.

Background:

9The applicant is charged with sexual assault and sexual interference in relation to C.T. These charges relate to inappropriate sexual touching, which is alleged to have occurred on a single occasion sometime between January 1, 2000 and December 31, 2001.

10On November 14, 2018, C.T. provided a statement to Detective Rhab (“Rhab”) of the Waterloo Regional Police Service with respect to the allegation of inappropriate sexual touching which forms the basis for the charges against the accused. These allegations are historic in nature. C.T., in her initial interview with Rhab, stated that her “memory is a bit foggy, just simply because it isn’t the picture flowing, like a movie or something”. She also indicated that the memory is “fragmented”. C.T. advised Rhab that her recollection of the inappropriate sexual touching was “repressed”, saying that she could no longer repress the memory after an incident with the accused at a wedding in 2018 in which the accused allegedly made an inappropriate comment about the complainant’s breasts.

11According to C.T., the inappropriate comments were a trigger for the memory of the alleged sexual assault. In her initial police interview, the complainant stated that “everything kind of really came back when he had drank too much at the wedding and came up to me and he made a comment saying something like, ‘look at you now’. He made a comment about my breasts being like – like – it was just really disgusting…”.

12Following C.T.’s interview of November 14, 2018, the accused was charged with sexual assault and sexual interference. The accused retained counsel, Bernard Cummins, who had pre-trial discussions with the ACA.

13The Crown offered to resolve the matter with a peace bond. The peace bond was to have a term of three (3) years, during which time the accused was to have no contact with the complainant and was not be within 100 meters of any place that the accused knew the complainant to be. Further, as a part of the resolution, the accused agreed to take counselling. The counselling was to address the inappropriate comments allegedly made by the accused to the complainant at a wedding in 2018.

14The Crown did not consult with the complainant prior to agreeing to the resolution agreement.

15In accordance with the terms of the resolution agreement, the applicant completed two counselling sessions on May 5 and May 12, 2020, respectively. In conjunction with these counselling sessions, the applicant implicitly acknowledged making such comments.

16This matter was scheduled for resolution on July 8, 2020, at which time the accused was to enter into the peace bond and the charges were to be withdrawn at the request of the Crown.

17On June 25, 2020, the ACA spoke with C.T. in order to explain the Crown’s rationale for the resolution agreement. Unbeknownst to the ACA, the complainant made a surreptitious audio recording of their June 25 discussion.

18On or about June 25, 2020, the ACA contacted Mr. Cummins by email to advise that she had “new information” and that she wanted to discuss this case. On June 26, 2020, following a brief telephone call, the ACA emailed Mr. Cummins to confirm that the Crown intended to rescind the resolution agreement. The ACA specifically referred to “information” provided by the complainant during their call yesterday, being June 25, 2020, saying as follows: “In our conversation today I explained to you that yesterday, the complainant provided me with information that impacts my assessment of the case. In particular, C.T. disclosed to me that the word ‘repressed’ in her statement to police, referred to her act of actively pushing a memory to the back of her mind: having it present the entire time. This is very different than my understanding of the word repressed. I understood her statement to mean that the memory in question was absent for a great many years and then returned in a foggy state.”

19Shortly before the start of the Preliminary Inquiry, on January 7, 2021, the ACA advised Mr. Cummins that the complainant had made an audio recording of her conversation with the ACA, and produced a heavily redacted transcript of such audio recording, which comprised only 11 pages. Despite various requests from Mr. Cummins, the Crown refused to provide an unredacted copy of the transcript of the conversation until February 9, 2021.

Legal principles:

20In R. v. Zarinchang 2010 ONCA 286, the court provided a summary of the law concerning abuse of process and judicial stays of proceedings at para. 57:

There are two categories of cases that may attract a stay of proceedings. The first category implicates the fairness of an individual’s trial resulting from state misconduct. The second involves a residual category unrelated to the fairness of the trial, but involves state conduct that contravenes fundamental notions of justice, which undermines the integrity of the judicial process…

21In considering whether to grant a stay of proceedings under either of these categories, the following criteria must be satisfied: The prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; it must be directed at prospective prejudice, not to redress past prejudice, and no other remedy is reasonably capable of removing that prejudice.

22Where there remains some uncertainty as to whether the abuse is sufficiently serious to create the prejudice to warrant a stay, there is a third criterion that the court may consider. In R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, the Supreme Court of Canada held that the test for determining whether a stay of proceedings is warranted is the same for both categories and consists of factors or steps including (1) that there must be prejudice to the accused's right to a fair trial or to the integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and (2) there must be no alternative remedy capable of redressing the prejudice. Where there is still uncertainty over whether a stay is warranted after steps 1 and 2, the court must balance the interests in favour of granting a stay against the interest that society has in having a trial on the merits.

23In R. v Scott, 2002 CanLII 44950 (ON CA), [2002] O.J. No. 2180 (Ont. C.A.), a five-minute videotape statement had been lost (misconduct did not rise to level of an abuse of process), and the Court of Appeal held a stay was not justified in the circumstances. Lesser remedies were available including weighing the identification evidence or excluding the identification evidence of eyewitnesses. Indeed, Scott reinforces the proposition that when other appropriate remedies exist, it would be proper to give precedence to them over the extreme remedy of a stay of proceedings.

24In R. v. R.(G.W.), 1996 CanLII 613 (ON CA), [1996] O.J. No. 4277, (1996), 112 C.C.C. (3d) 179, the Court of Appeal for Ontario concluded, that following the Crown’s opening address, the record did not provide sufficient basis upon which the judge could determine that the respondent could not make full answer and defence. In particular, it was not established that the accused could not adequately cross-examine the complainant or present a defence. At pp. 181-182, the court held:

In our view, the record did not provide a sufficient basis upon which the trial judge could determine at this stage of the proceedings that the respondent could not make full answer and defence. While three potential witnesses had died and the memories of various people who had dealt with the complainant had faded, it was not established that the respondent could not adequately cross-examine the complainant or present a defence to the charge. [Citations omitted]

It may well be that, as the trial proceeds, the respondent will be able to demonstrate that the delay has created a prejudice to his fair trial but at present I cannot see such prejudice in these complaints . . . [I]f the complainant's relation of the incident to the now-deceased confidante should be disclosed at trial, and the unavailability of the confidante becomes a potentially prejudicial factor, its importance can be considered at the time.

25I observe that both Scott and R.(G.W.) fall into the first category of cases that may attract a stay; issues with the fairness of an individual’s trial resulting from state misconduct. In such cases, it may often be necessary to “wait and see” what the impact of the misconduct is on the accused’s rights and consider what other remedies may address the unfairness.

26In this case, the applicant places reliance on the residual category. When invoked, the first stage of the test is met when it is established that the state has engaged in conduct that is offensive to societal notions of fair play and decency, and that proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. At the second stage of the test, the focus is on whether an alternate remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward. Finally, the court must decide whether staying the proceedings or having a trial despite the impugned conduct better protects the integrity of the justice system.

Principles Applied to this Case:

27The Crown submits that the complainant in this case deserves to have her day in court. Likewise, the applicant deserves his opportunity to be acquitted where the trier of fact is not prepared to rely on the evidence which is the product of the alleged misconduct.

28This inquiry necessarily demands balancing of such things as the nature and seriousness of the impugned conduct, whether the conduct is isolated or reflects a systemic and ongoing problem, the circumstances of the accused, the charges he or she faces, and the interests of society in having the charges disposed of on the merits.

29The residual category was considered in R. v. Young (1984), 1984 CanLII 2145 (ON CA), 13 C.C.C. (3d) 1 (Ont. C.A.) and approved by the Supreme Court in R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128. At p. 31 of Young, Dubin J.A. wrote:

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...

30Even under the “residual” category, where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process, prejudice, (while not determinative), is relevant to the analysis of the appropriate remedy for a violation of s. 7 of the Charter. Moreover, the Supreme Court opined that in most cases, the accused will need to demonstrate that he or she was prejudiced by the prosecutorial conduct in some significant way to successfully make out an abuse of process claim.

31The Crown has unequivocally repudiated the resolution agreement entered into following extensive discussions with Mr. Cummins. Ms. Forward recognizes that the repudiation of a resolution agreement should be rare; however, she submits that in this case it is essential. At para. 49 of R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566, the Court quoted from the Martin Committee Report which noted:

Thus, it is plain that resolution agreements must not undermine the integrity of the court, or otherwise bring the administration of justice into disrepute. While the sanctity of agreements entered into is an important principle of the administration of justice, Crown counsel's primary duty is to the integrity of the system. Accordingly, in the rare cases where these two values clash, the latter must prevail.

32The Crown’s decision to resile from a plea agreement and to continue the prosecution is a matter of prosecutorial discretion and is only subject to review for abuse of process: Nixon, at para. 31. The repudiation of a plea agreement is a rare and exceptional event: Nixon, at para. 63.

33Evidence that a plea agreement has been entered into and subsequently reneged on by the Crown provides the requisite evidentiary threshold to embark on a review of the decision for abuse of process pursuant to s. 7 of the Charter: Nixon, at para. 63.

34As mentioned, the Supreme Court has identified two categories of abuse of process which would engage section 7 of the Charter: (1) prosecutorial conduct affecting the fairness of the trial; and (2) prosecutorial conduct that “contravenes the fundamental notions of justice and thus undermines the integrity of the judicial process”: Nixon, at para. 36.

35Under the residual category of cases, prejudice to the accused’s interests, although relevant, is not determinative. Prejudice under the residual category, rather, is a broader concept relating to acts that undermine society’s expectations of fairness: Nixon, at para. 41.

36The applicant submits the present prosecution, given the manner in which the Crown has conducted itself, is tainted to such a degree that to allow it to proceed would undermine the integrity of the judicial process. Specifically, the Crown failed to comply with its public duty insofar as it permitted the complainant to unduly influence the exercise of its prosecutorial discretion and, ultimately, direct the prosecution. The Crown, in an effort to justify the repudiation of the plea agreement, relied on allegedly new information, when, by the ACA’s admission, no such new information existed. Further, the Crown’s improper exercise of discretion is compounded by its initial effort to withhold the complete transcript of the conversation between the complainant and the ACA. Specifically, the Crown, once it became aware that an audio recording of the conversation existed, produced only 11 of 92 pages of the transcript on the basis that the balance of the transcript was “not relevant”.

Prosecutorial misconduct undergirding the repudiation of the resolution agreement

37Was the Crown’s repudiation conduct so unfair or oppressive, or so tainted by bad faith or improper motive, that to allow the Crown to proceed with the prosecution would tarnish the integrity of the judicial system?

38The Crown’s duties and responsibilities are public in nature. The Crown, as agents of the Attorney General, are tasked with fairly and impartially conducting cases in a manner which is consistent with the public interest.

39The Crown Prosecution Manual states that while the Crown owes special duties of candour and respect to all victims of alleged crime, they are not the victim’s lawyer. The Manual states that “[i]n circumstances where the fair and impartial exercise of prosecutorial discretion is at odds with the victim’s desires, the Crown should be sensitive but realistic and candid with the victim.”

40The applicant submits that the ACA, despite her assessment of the case as “almost unwinnable”, suborned public interest considerations to the personal wishes and desires of the complainant, thereby permitting the complainant to direct the prosecution in furtherance of her own agenda.

41The transcript of the call between the ACA and C.T. offers unique insight into the Crown’s assessment of the merits of the prosecution and, more specifically, its justification for entering into the resolution agreement. In the initial portion of their discussion, the ACA advised C.T. that this was not “a case that we can win”.

42The ACA’s opinion was based on concerns about the reliability of the complainant’s evidence, specifically stemming from her “repressed” recollection of the allegedly inappropriate sexual touching.

43C.T., when confronted with the Crown’s opinion, sought to buttress her complaint by denying that her memory of the sexually inappropriate touching was repressed in the traditional sense. The complainant insisted that it was not a “forgotten memory”. Rather, she indicated that it was “something that she kept in the back of her mind”. The ACA indicated that, even if the memory was not truly repressed, the case was not “especially strong”. C.T. herself, acknowledged that the case is “almost unwinnable”. The ACA, in turn, endorsed the complainant’s assessment of the merits of the case, indicating that the complainant’s low expectations of the prospect of a conviction were “realistic”, even taking the case at its best and accepting her explanation for her use of the term “repressed”.

44Again, my role is to review the Crown’s conduct with respect to the repudiation -- not whether the Crown should have entered into the original resolution agreement. Furthermore, I am not to assess the reasonableness or correctness of the decision itself or Crown discretion. I examine the circumstances behind the decision for “proof of the requisite prosecutorial misconduct, improper motive or bad faith in the approach, circumstances, or ultimate decision to repudiate”. As the Supreme Court of Canada warned in Nixon, at para. 52:

…it is not the role of the court to look behind a prosecutor’s discretionary decision to see if it is justified or reasonable in itself. By straying into the arena and second-guessing the decision, the reviewing court effectively becomes a supervising prosecutor and risks losing its independence and impartiality.36

45Along the same vein, the Supreme Court explained that reasonable counsel may indeed, and often do, differ on whether a particular disposition is in the public interest in the circumstances of the case. The Crown has a public duty to assess the merits of the case and to resolve matters where there is no public interest in conducting a trial.

46Taken at its best and accepting the complainant’s explanation for her use of the word “repressed” to describe her recollection of the alleged sexual touching, this case is, by the Crown’s admission “almost unwinnable” and, as such, it is justifiably resolvable on the terms of the resolution agreement. The complainant stated that even “if we couldn’t prove beyond a reasonable doubt to the judge, we might be able to give reasonable doubt to the family about his innocence”.

47Upon my review, I am convinced that C.T. took over and controlled the interview with the ACA. She recorded the discussion unbeknownst to the ACA. She explained her preferred outcome for the matter. She first expressed her desire for a plea deal and dictated the terms that she wished to have imposed as a part of the plea deal. When she was informed that a plea deal was unlikely, she stated “there’s no benefit to the peace bond in terms, for me…”

48The complainant also asked the ACA whether she could direct the police to obtain a warrant and undertake further investigation into the accused, in an attempt to find more evidence.

49Notwithstanding the merits of the case, the complainant indicated that she “wanted to go forward with the trial for the very, very simple reason of letting his family know – my side of it”. She stated that she wanted to “send a message” and that “the message is so much more important than the verdict”.

50I find that C.T., by her own admission, intimated a desire to use the public prosecution as a means of advancing her own agenda, namely, to confront the accused with the allegations in front of his family, irrespective of whether there was any prospect of proving such allegations beyond a reasonable doubt.

51Having established that the prosecution had little prospect of success, the ACA sought to clarify the complainant’s objectives. Specifically, she confirmed that the complainant wanted “the opportunity to say what happened”.

52The ACA, initially seeking to reconcile her public duty and the complainant’s goals, proposed that the complainant might give her account at a peace bond hearing. The complainant declined. She indicated that a trial would be “very official” and that his family “will be there”. The complainant insisted that she would “like to see a trial to show that we attempt to hold these people accountable so they know they can’t go about doing whatever they want all the time”. The ACA observed that the complainant wants to “be part of the driving force for change”. In response to the complainant’s insistence that the prosecution be continued, the ACA indicated that she would “try to satisfy some of what you want”.

53The Crown says that read as a whole, it is clear that the ACA was of the view that there was new information about the nature of the complainant’s memory. It is submitted that the ACA provided clear reasons for the repudiation of the agreement. She explained that she had misunderstood what the complainant meant by the word repressed. That misunderstanding had caused her to make an erroneous assessment of the strength of the case. Now armed with the new information of what the complainant meant by “repressed”, the Crown re-assessed the strength of the case. After consulting with the Crown Attorney, she repudiated the agreement.

54I must disagree. In my view, the ACA is pulling from the weeds in order to bolster a position that is untenable. It is a matter of finding a solution and excuse in order to buttress the complainant’s desire to proceed and finding some rationale to rely upon.

55I am persuaded that C.T., in her ongoing effort to pressure the ACA into resiling from the resolution agreement, suggested that the Crown might rely on “new evidence” to justify continuing the prosecution. The ACA stated as follows: “I don’t know – it – is there – is there any new evidence or is the – the change, I mean, for me right now, the change is the difference between a repressed memory and a repressed memory…”

56The ACA, again, questioned whether there was, in fact, any new evidence, saying as follows: “…is there any new evidence? Is there anything new that the police did not know about in this case that has come out since then? She confirmed that there was, in fact, no new evidence: …But my question for you though is, is there anything that is like, you know – oh, you know, there’s new evidence as in there’s somebody who has something new or some objective piece… C.T.:Yeah. ACA: …of information that was not previously known. There’s – there’s nothing like that now, is that right? C.T: Umm, no. No, nothing like that umm, but…”

57I agree with the applicant that there was no “new information”. The ACA acknowledged that there was no new information in her call with the complainant on June 25, 2020. The ACA was induced by the dogged and admittedly difficult and insistent complainant into repudiating the resolution agreement.

58Further, once the Crown became aware of the existence of an audio recording of the conversation between the ACA and C.T., it sought to withhold the full extent of the discussions by producing only 11 of 92 pages, three days before the start of the Preliminary Inquiry.

59While prejudice to the accused’s interests is not a necessary factor, the accused’s right to a fair trial is tainted by the fact that, in reliance on the resolution agreement, he completed counselling in respect of the inappropriate comments that he made to the complainant at a wedding in 2018.

60I agree with the applicant that the decision to repudiate the resolution agreement is tainted by the Crown’s conduct, specifically insofar as it suborned its public duty to the complainant’s personal agenda, such that it would be unfair or oppressive to allow the Crown to now proceed with the prosecution.

61I find that the Crown acted improperly with a view to advancing the complainant’s interests, over the public interest, in having the accused stand trial. The ACA, by her own admission, indicated that she would “try to satisfy some of what you [the complainant] want”. She did, in fact, repudiate the resolution agreement in order that the complainant might get what she wanted, namely that the accused stand trial. In doing, the Crown suborned the public interest to the wishes and desire of the complainant.

62Whether this case falls within the residual category of abuse of process can be answered by this question: Was the Crown’s repudiation conduct so unfair and oppressive to the applicant, or so tainted by bad faith or improper motive, that to allow the Crown to now proceed would tarnish the integrity of the judicial system? The answer is yes.

Remedy:

63Having determined that there is an abuse of process, what is the appropriate remedy?

64The test for granting a stay of proceedings for abuse of process, regardless of whether the abuse causes prejudice to the accused's fair trial interests or to the integrity of the justice system, is that set out in Canada (Minister of Citizenship & Immigration) v. Tobiass, 1997 CanLII 322 (SCC), [1997] 3 S.C.R. 391 (S.C.C.), and R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297 (S.C.C.).

65A stay of proceedings will only be appropriate when: "(1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and (2) no other remedy is reasonably capable of removing that prejudice": Regan, at para. 54.

66In R. c. Gagné, [1998] J.Q. No. 3240; leave to appeal refused, [1999] C.S.C.R. No. 2 (S.C.C.) at para. 25, the Court of Appeal of Quebec held:

A stay of proceedings constitutes the ultimate remedy to which one may have recourse when all the other remedies which may protect the accused's right to make full answer and defence have been exhausted (R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, 103 C.C.C. (3d) 1). This remedy of last resort will constitute the appropriate remedy in the case of permanent and irreparable prejudice to the accused's rights (R. v. Dixon, [1998] 1 S.C.R. 240, 122 C.C.C. 3(d) 1; R. v. Carosella, 1997 CanLII 402 (SCC), [1997] 1 S.C.R. 80, 112 C.C.C. (3d) 289; R. v. Johnson (1994) 1994 CanLII 9755 (NL CA), 93 C.C.C. (3d) 211 (Nfld. C.A.)). When other appropriate remedies exist, it would be proper to give precedence to them over the extreme remedy of a stay of proceedings (R. v. Johnson (1994), 1994 CanLII 361 (BC CA), 89 C.C.C. (3d) 90 (B.C.C.A.)).

67This is not a case where the Crown merely changed its position. This may occur in various circumstances as new evidence arises during the course of a prosecution. The case was marginal at best and suffered from the lack or low prospect of conviction.

68Under the “residual” category, “[a]t times, state conduct will be so troublesome that having a trial – even a fair one – will leave the impression that the justice system condones conduct that offends society’s sense of fair play and decency”: Babos, at para. 35. In these exceedingly rare circumstances, a stay should be entered in advance of the trial if the prejudice will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome.

69I observe that a stay was not appropriate where the trial judge disapproved of police conduct but made no finding of abuse of process: R. v. Haimour, 2011 ABCA 143, [2011] A.J. No. 489. The trial judge “did not find trial fairness to be implicated, nor did he find it clear that the proceedings were oppressive or vexatious, or violated the fundamental principles of justice underlying the community's sense of fair play and decency, so as to generate a duty of the court to enter a stay”: at para. 4.

70I note that in R. v. Shirose and Campbell, 1999 CanLII 676 (SCC), [1999] 1 S.C.R. 565, (1999), 133 C.C.C.(3d) 257, Binnie J. for the court wrote that the fact that the police acted illegally does not necessarily lead to a finding of abuse of process or entitle the accused to a stay of the proceedings, although police illegality is an important factor to be considered in making that determination. The ultimate question is not legality but whether the police conduct was such as to shock the conscience of the community and demand that the court not lend its process to a prosecution flowing from such conduct.

71As mentioned, it was the complaint who drove this process and the Crown acted like her personal lawyer and neglected her duties as a minister of justice. I tend to agree with the applicant that the violation is patent and clear and the preferable course is to deal with the matter prior to trial.

72The prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial and a stay of proceeding is the only remedy capable of removing the prejudice. Specifically, to allow this matter to proceed to trial would permit the Crown’s office to be used as a means of accomplishing the complainant’s stated end, namely, to see the applicant publicly confronted by the allegations, where, the utility of the prosecution has been cast in doubt.

Conclusion:

73A stay of proceedings is only appropriate “in the clearest of cases”, where the prejudice to the accused’s right to make full answer and defence cannot be remedied, or where irreparable prejudice would be caused on the integrity of the judicial system if the prosecution were continued. It would be appropriate to order a stay of proceedings where it is necessary to prevent the prejudice from being manifested, perpetuated, or aggravated through the conduct of the trial or its outcome, and there is no other remedy that could remove the prejudice.

74The residual category of an abuse of process that may attract a stay are those cases involving state conduct that undermines the integrity of the judicial process. The applicant has established that the Crown attorney improperly repudiated the agreement based on the direction or instance of the complainant. The prosecution has engaged in conduct that is offensive to societal notions of fair play and decency, and proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. When I turn to the balancing exercise, the interests of society warrant the discontinuation of the prosecution of this case.

75Therefore, the application is granted. The charges are hereby stayed.

A.J. Goodman J.