



WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting
    publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of the
Criminal Code
provide:

486.4(1)       Subject
    to subsection (2), the presiding judge or justice may make an order directing
    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)     any of the
    following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
    2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt
    with in the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)     In proceedings
    in respect of the offences referred to in paragraph (1)(a) or (b), the
    presiding judge or justice shall

(a)     at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the victim of the right to make an application for the order; and

(b)     on application
    made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to
    subsection (2.2), in proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice may make an order directing that any information
    that could identify the victim shall not be published in any document or
    broadcast or transmitted in any way.

(2.2) In proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible,
    inform the victim of their right to make an application for the order; and

(b) on application of
    the victim or the prosecutor, make the order.

(3)     In proceedings
    in respect of an offence under section 163.1, a judge or justice shall make an
    order directing that any information that could identify a witness who is under
    the age of eighteen years, or any person who is the subject of a
    representation, written material or a recording that constitutes child
    pornography within the meaning of that section, shall not be published in any
    document or broadcast or transmitted in any way.

(4)     An order made
    under this section does not apply in respect of the disclosure of information
    in the course of the administration of justice when it is not the purpose of
    the disclosure to make the information known in the community. 2005, c. 32, s.
    15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25,
    ss. 22, 48; 2015, c. 13, s. 18.

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

(2)     For greater
    certainty, an order referred to in subsection (1) applies to prohibit, in
    relation to proceedings taken against any person who fails to comply with the
    order, the publication in any document or the broadcasting or transmission in
    any way of information that could identify a victim, witness or justice system
    participant whose identity is protected by the order. 2005, c. 32, s. 1




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ke, 2021 ONCA 179

DATE: 20210322

DOCKET: M52115 (C66543) & C66543

Fairburn A.C.J.O., Watt and Huscroft
    JJ.A.

BETWEEN

Her Majesty the Queen

Appellant/Moving Party

and

Hongbo Ke

Respondent/Responding Party

Philippe G. Cowle, for the appellant/moving
    party

No one appearing for the
    respondent/responding party

Heard: January 29, 2021
by video conference

On appeal from the order staying the
    proceedings by Justice Joyce L. Pelletier of the Ontario Court of Justice, dated
    January 15, 2019.

Watt J.A.:

[1]

Whats the remedy for a witness not attending
    for their cross-examination?", the trial judge asked. Defence counsel
    suggested that the charges be stayed. The Crown proposed a material witness
    warrant and a brief adjournment.

[2]

I'm granting a stay of proceedings" the trial
    judge announced. And so she did.

[3]

The Crown appeals.

[4]

These reasons explain why I would allow the
    appeal, set aside the stay, and order a new trial before a different judge of
    the trial court.

The Background Facts

[5]

Hongbo Ke (the respondent) was charged in an Information
    with a single count of sexual assault. The Crown elected to proceed by
    indictment. After an initial election of trial before a judge of the Superior
    Court of Justice and a request for a preliminary inquiry, the respondent re-elected
    trial before a judge of the Ontario Court of Justice.

The First Day of Trial

[6]

Trial proceedings began on August 29, 2018. The Crown
    had previously filed an application for an adjournment. Three essential
    witnesses were not available. The Crown explained that she proposed to adduce
    the evidence of the complainant on the scheduled hearing dates. If the
    adjournment were granted, the case could be completed with the evidence of the
    then unavailable witnesses.

[7]

The trial judge did not rule on the Crown's application
    for an adjournment. The Crown had only recently disclosed video statements of
    the complainant in related investigations. Both Crown and defence counsel asked
    for some time to review those statements. The trial judge acceded to the joint request.
    The proceedings were adjourned to the following day.

The Second Day of Trial

[8]

On August 30, 2018, the complainant testified
    with the assistance of an interpreter. Crown counsel completed her
    examination-in-chief of the complainant.

[9]

Defence counsel resisted commencing his
    cross-examination the following day. His cross-examination, he anticipated,
    would exceed one day in length. He did not want the cross-examination
    interrupted by a lengthy adjournment. The trial judge agreed.

[10]

The parties explored continuation dates. The
    trial judge adjourned the proceedings to January 15-17 and February 12, 2019.
    She instructed the complainant to return on January 15, 2019. The complainant
    agreed to do so.

The Subpoena

[11]

About two months before the scheduled return date,
    the complainant was personally served with a subpoena requiring her to return
    to the trial court on January 15, 2019.

The Trial Resumes

[12]

When trial proceedings resumed on January 15,
    2019, the complainant did not appear. Crown counsel explained that when staff
    in the Crown Attorneys office spoke to the complainant late the previous day,
    they learned, for the first time, that the complainant would be flying out of
    Canada on January 15, 2019. She was attending China for a medical reason. She
    would not be available to resume her testimony as scheduled. Staff in the Crown
    Attorney's office asked the complainant to send them her travel information.
    The complainant had not done so by the following morning.

[13]

The trial Crown did not learn until the return
    date of January 15, 2019 that the complainant had sent an email to the Victim
    Witness Assistance Program in the place of trial on November 2, 2018. In that
    email, the complainant explained her travel plans on January 15, 2019 and asked
    that the scheduled appearance be postponed. The email had been diverted to a
    junk mail folder and was not discovered until January 15, 2019.

The Position of the Crown

[14]

The trial Crown sought a brief adjournment of
    one or two weeks to permit the complainant to re-attend to complete her
    evidence. On the already scheduled dates, the Crown proposed to elicit evidence
    from the remaining witnesses to complete the case for the Crown, but for the
    cross-examination and re-examination of the complainant.

[15]

The trial Crown pointed out that the complainant
    had testified in-chief for about three hours. She had never communicated any
    unwillingness to continue with her evidence or the prosecution. She had
    explained well in advance of the return date her absence and the reason for it.
    The complainant was a student, new to Canada, and unfamiliar with the workings
    of our legal system.

The Defence Position

[16]

The trial judge asked defence counsel:

What's the remedy for a witness not attending
    for their cross-examination?

[17]

Defence counsel responded with a stay of
    proceedings. He sought a stay on three grounds:

i.

compromise of trial fairness;

ii.

disbelief of the complainant's explanation; and

iii.

the torturous conditions" in which the
    respondent had lived while the proceedings remained outstanding.

The Ruling of the Trial Judge

[18]

Neither the Crown nor the defence adduced any
    evidence on any aspect of the issue. No authorities were collected. None were
    proffered. The trial judge did not retire to consider what to do. She simply
    announced:

I'm going to grant the stay. The proceedings
    against Mr. Hongbo Ke, information 173947, because [the complainant] has not
    attended for her cross-examination on a trial that was commenced August 30
th
,
    2018 and in the face of a subpoena leaves the country the day before she's
    scheduled to attend for trial is, is actually most prejudicial, in my view, to
    her cause in terms of granting an adjournment for this trial. I just, Im of
    the opinion that it was, she completely ignored the subpoena and left the
    country to avoid attending for her cross-examination.

[19]

A short time later, the trial judge returned to
    the courtroom. She added:

Sorry, in my upset and focused on the
    recognizance I, I didn't endorse the information. So I'm a little, I'm going to
    need some advice from counsel in terms of am I entering a not guilty finding and
    a stay? It's just a stay of the proceedings.

The Appellate Proceedings

[20]

On February 11, 2019, after personally serving
    the respondent, the Crown filed a notice of appeal against the trial judge's
    order staying proceedings against the respondent.

[21]

Two days later, the respondent emailed the Crown.
    He expressed hope that the Crown would reconsider pursuit of its appeal. The
    respondent was doubtful that he would be able to retain counsel. He suggested
    he would represent himself on the appeal.

[22]

About a month later, the Crown advised the
    respondent of its intention to pursue the appeal whether the respondent had
    counsel or represented himself. The Crown underscored the importance of the
    respondent keeping the court and Crown aware of his address and contact
    information.

[23]

Within days of the Crown's communication of its
    intention to pursue the appeal, the respondent retained counsel.

[24]

On December 12, 2019, the Crown perfected its
    appeal. The court listed the appeal for argument on May 22, 2020.

The Appeal is Relisted

[25]

When COVID-19 intervened, the court asked the
    parties whether the appeal could proceed in writing. Subsequent exchanges
    revealed that counsel for the respondent was having difficulty reaching his
    client to obtain instructions. Despite counsel's repeated efforts through
    several different channels of communication, this difficulty persisted. In late
    August 2020, counsel applied to be removed from the record as solicitor of
    record for the respondent. The order was granted.

[26]

The appeal was relisted for argument on January
    29, 2021. Notice about the time and manner of the hearing was sent to the
    respondent's most recent addresses. He was advised of the time of the remote
    hearing. He was furnished with details about how he could participate in it.
    The Crown received no response. The court received no response.

The Motion for Directions

[27]

As a result of the respondent's failure to
    answer any requests to participate in person or by counsel to the appeal, the Crown
    filed a notice of motion returnable on the date set for the hearing of the
    appeal. In that motion, the Crown sought a direction under r. 19 of the
Criminal
    Appeal Rules
, S.I./93-169
that
    the appeal be heard in the absence of the respondent.

[28]

We heard submissions from the Crown on the
    motion. After retiring briefly, we advised Crown counsel that we would grant
    the motion with reasons to follow and proceed to hear the appeal on its merits.
    At the conclusion of that argument, we reserved our decision on the merits of
    the appeal.

[29]

In the reasons that follow, I will explain first
    why I consider this an appropriate case in which to proceed in the absence of
    any participation by the respondent. Then, I will turn to an assessment of the
    merits of the appeal.

Disposition of the Motion

[30]

In my respectful view, the interests of justice
    warrant an order that the appeal be heard in the absence of any participation
    by the respondent.

[31]

The trial proceedings with which we are
    concerned originate in allegations of serious sexual offences against a
    vulnerable complainant. The accusations were of four separate incidents on
    different days. Two of those incidents involved non-consensual unprotected
    sexual intercourse. The complainant also described continued surveillance of
    her daily activities by the respondent. The sexual contact had been initiated
    by the respondent almost immediately after the complainant's arrival in Canada.

[32]

The order under appeal was made when the Crown
    sought a brief adjournment after learning the previous day of the
    unavailability of the complainant to complete her evidence. Other witnesses
    were available. The Crown proposed to elicit its evidence leaving only the
    remaining portion of the complainant's testimony to complete the case for the Crown.
    There was no evidence before the trial judge that the complainant no longer
    wished to participate in the trial process. Or that she wished to abandon her
    allegations of serious sexual misconduct by the respondent.

[33]

It is well-established that entry of a stay of
    proceedings is a remedy reserved for the clearest of cases". It is not a
    typical response to an application for a brief adjournment because a material
    witness has failed to reappear four and one-half months after she first
    testified. Typical or otherwise, a review of the circumstances surrounding its
    entry in this case reveal that the appeal has substantial merit.

[34]

The appeal in this case was initiated within 30
    days of the entry of the stay. The respondent was served personally. He
    received not only the notice of appeal, but also a substantial set of materials
    explaining his obligations and available options for representation as the
    respondent. The Crown made it clear to the respondent from the outset that the
    appeal would be pursued whether the respondent participated or declined to do
    so.

[35]

At one point, the respondent suggested that he
    would be self-represented. Later, he retained counsel. Despite counsel's
    repeated efforts to maintain contact and obtain instructions, the respondent
    did not reply. Counsel was removed from the record. Repeated communications
    from the Crown about scheduling and how the respondent could participate in the
    appeal, including details about the hearing, went unanswered. The respondent
    has returned to China, thus is not amenable to the process of this court. The
    only reasonable inference is that he no longer wishes to participate in this
    appeal.

[36]

In the result, I am satisfied that this is a
    case in which we should determine the merits of the appeal despite the lack of
    participation by the respondent.

The Appeal

[37]

The Crown advances four grounds of appeal. None
    require a canvass of the evidence adduced at trial. Brief reference to some
    aspects of the proceedings that led to entry of the stay is sufficient.

The Grounds of Appeal

[38]

The Crown says that the trial judge erred:

i.

by failing to exercise her discretion judicially
    in denying the Crown's request for a brief adjournment of trial proceedings;

ii.

by staying the proceedings in breach of the
    rules of natural justice;

iii.

by failing to provide reasons sufficient to
    permit meaningful appellate review; and

iv.

by staying the proceedings in the absence of any
    evidence warranting such an order.

[39]

This appeal falls within s. 676(1)(c) of the
Criminal
    Code
, R.S.C., 1985, c. C-46
.
    Unlike a Crown appeal from acquittal under s. 676(1)(a) of the
Criminal
    Code
, this appeal from a stay of proceedings entered by a trial court is
    not limited to questions of law alone.

[40]

For discussion purposes, I will collapse the
    grounds of appeal into two. The first focuses on the trial judge's decision to
    refuse the adjournment application made by the Crown. The second relates to the
    remedy provided for the complainant's non-attendance: a stay of proceedings.

Ground #1: Refusal of the Adjournment

[41]

When trial proceedings resumed on January 15,
    2019 after an adjournment of four and one-half months, the Crown sought a brief
    adjournment of one or two weeks so that she could contact the complainant and
    determine her availability to complete her evidence. The Crown had only learned
    that the complainant would not be present the previous day when advised of that
    fact by staff in the Crown Attorney's office.

[42]

The Crown proposed to use the time set aside for
    the continuation of the proceedings to complete the case for the Crown except
    for the conclusion of the complainant's evidence. In fact, the complainant had
    advised the Victim Witness Assistance Program two and one-half months earlier
    of her scheduling conflict, but her email was diverted to a junk mail folder
    and only located the morning the trial was scheduled to resume. The complainant
    had been re-served with a subpoena. Nothing in the record suggested that the
    complainant would not subsequently appear or that she no longer wished to
    participate in trial proceedings.

[43]

The trial judge asked defence counsel about the
    remedy for the failure of a witness to attend for cross-examination. Counsel proposed
    a stay of proceedings. The Crown, when asked, sought a material witness warrant
    and a brief adjournment of proceedings to determine the complainant's
    availability after the Crown's case was otherwise completed.

[44]

The trial judge did not invite further
    submissions. She did not retire to consider her decision. She refused to issue
    a material witness warrant and concluded that the complainant left the country
    to avoid attending for her cross-examination". The trial judge also cited
    the very difficult, difficult circumstances" of the appellant's release
    as an emotionally torturous" experience. She expressed her upset"
    at what had happened.

[45]

The trial judge dismissed the Crown's proposed
    remedies and entered a stay of proceedings.

The Arguments on Appeal

[46]

The appellant contends that the trial judge
    erred in failing to grant the Crown's request for a brief adjournment when the
    complainant failed to re-attend. The trial judge's decision was based on
    factual findings that were devoid of any evidentiary foundation and lacked any principled
    basis.

[47]

The Crown readily accepts that trial judges have
    a wide discretion in determining whether to grant or refuse an adjournment
    request. Likewise, their exercise of that discretion is subject to considerable
    deference on appeal. But that deference, the Crown says, gives way when the
    discretion is exercised unreasonably, or when its exercise is flawed by legal
    error. Both occurred here.

[48]

In this case, the Crown continues, the trial
    judge failed to consider, much less apply, the factors articulated by the Supreme
    Court of Canada 65 years ago in
Darville v. The Queen
(1956), 116 C.C.C.
    113 (S.C.C.) when an adjournment is sought because a material witness has
    failed to attend. The trial judge failed to provide the trial Crown with the
    opportunity to demonstrate satisfaction of the
Darville
requirements.
    This failure, in both its aspects, amounted to legal error.

[49]

What is more, the appellant argues, the decision
    was unreasonable.

[50]

The trial judge based her conclusion on two
    findings of fact. First, she concluded that the circumstances of the
    respondent's release were very difficult. She adopted, as her own, the torturous"
    characterization advanced by defence counsel. Second, she found that the
    complainant used her medical reason as an excuse to mask her true purpose  to
    avoid cross-examination.

[51]

Neither of these findings had any evidentiary
    support. Beyond defence counsel's statement about the respondents travails on
    release, the record is bankrupt of any evidentiary support for the
    characterization adopted by the trial judge. And there was not a scintilla of
    evidence to support the finding that the complainant was absent because she
    sought to avoid cross-examination. The complainant made no effort to avoid
    re-service of the subpoena. She was unfamiliar with Canada's legal system and
    had communicated her conflict over two and one-half months earlier.

The Governing Principles

[52]

Section 571 of the
Criminal Code
permits
    a provincial court judge acting under Part XIX to adjourn a trial from time to
    time until the trial is finally terminated. Like other adjournment provisions
    in the
Criminal Code
, such as ss. 537(1)(a) and 645(2), s. 571
    contains no exhaustive or illustrative list of factors the judge is required or
    entitled to consider in determining whether to grant or refuse an adjournment.

[53]

In
Darville
, at p. 117, the Supreme
    Court of Canada identified three factors for a court to consider in determining
    whether to grant an adjournment required to procure the attendance of a
    material witness:

i.

that the absent witness is a
material
witness in the case;

ii.

that the party requesting the adjournment has
    not been guilty of laches or neglect in failing to endeavour to procure the
    witness attendance; and

iii.

that there is a reasonable expectation that the
    witness' attendance can be procured at the future time to which the party
    proposes the trial be adjourned.

See also
R. v. G. (J.C.)

(2004), 189 C.C.C. (3d) 1 (Que. C.A.), at para.
10, leave to appeal refused, [2004] C.S.C.R. No. 456.

[54]

To refuse an adjournment without giving the
    requesting party the opportunity to demonstrate satisfaction of the relevant
    criteria is an error of law:
Darville
, at p. 117;
G. (J.C.)
,
    at para. 11.

The Principles Applied

[55]

I would give effect to this ground of appeal. In
    my respectful view, the trial judges decision to refuse the adjournment
    request was at once legally flawed and patently unreasonable.

[56]

In this case, the trial judge was faced with a
    request from the Crown for a brief adjournment so that the complainant could be
    contacted about her availability to complete her testimony. The Crown proposed
    completing her case but for the balance of the complainant's evidence in the
    days that had already been set aside to conclude the trial. The proceedings had
    been adjourned earlier at the request of defence counsel, who had refused to
    begin his cross-examination of the complainant when she had completed her
    evidence in-chief.

[57]

Decisions on applications for an adjournment
    involve the exercise of judicial discretion. They require consideration of
all
the circumstances to determine what is in the best interests of the
    administration of justice. The exercise of discretion must be principled. It
    must be firmly grounded in the circumstances disclosed in the case at hand. The
    interests of justice are a joint venture, not a sole proprietorship. They are
    not for the sole use of one party to the exclusion of the other.

[58]

In this case, the Crown's request for a brief
    adjournment was based on the absence of a material witness who had already
    testified in-chief. The controlling principles for the exercise of that
    discretion were those of
Darville
. It was an error of law for the
    trial judge to dismiss the adjournment request without providing the Crown with
    an opportunity to demonstrate that it had met the requirements of
Darville
.
    And it was equally an error not to consider those principles.

[59]

The complainant was a material witness. She had
    given evidence of a series of sexual assaults by the respondent over several
    days. The allegations included two events of non-consensual unprotected sexual
    intercourse. The complainant was new to Canada, unfamiliar with our legal
    system, a student intending to pursue a graduate degree. She had communicated
    her scheduling conflict to the Victim Witness Assistance Program two and
    one-half months earlier. That her communication was directed to junk mail was
    scarcely her fault.

[60]

The complainant had been advised by the trial
    judge of her obligation to return when trial proceedings were scheduled to
    resume four and one-half months after she had completed her examination in-chief.
    She agreed. She was re-served with a subpoena two months before the scheduled
    return date. The Crown contacted her the day before her scheduled re-appearance
    and only learned then of her plan to leave Canada on the return date for a medical
    reason. The Crown asked for a copy of her travel itinerary, but she had not
    provided it by the return date. In hindsight, the Crown should have contacted
    the complainant earlier about her re-attendance. But its failure to do so could
    scarcely be described as laches or neglect.

[61]

The record reveals no basis for an inference
    that the complainant's absence was permanent. The reason advanced for the
    absence  a medical reason  was not suggestive of any permanence. The
    complainant was new to Canada and attending graduate school at a Canadian
    university. She had already given evidence over an entire day. There was no
    basis to conclude that she would not re-attend to complete her testimony. At
    the very least, a brief adjournment would have enabled the Crown to confirm the
    complainant's position. If she made it clear that she had no intention of
    reappearing, the respondent would be the beneficiary of the adjournment.

[62]

In addition to the legal errors I have just
    identified, I am also satisfied that the trial judges decision to refuse the Crown's
    adjournment request was unreasonable.

[63]

The trial judge made two findings of fact that
    were the linchpins in her decision to refuse the adjournment and enter a stay
    of proceedings. She found, as defence counsel had submitted, that the
    respondent had been subjected to torturous" bail conditions and she
    concluded that the complainant's explanation for her absence  a medical reason
     was an excuse to mask her true reason  to avoid cross-examination.

[64]

In my respectful view, neither finding is
    supported on the record of the proceedings.

[65]

With respect to the first finding, the
    respondent appears to have been released on his own recognizance on the day of
    his arrest. The conditions in his recognizance are typical of those routinely
    included in cases of this nature. The only differences appear to be in the
    requirements that he deposit his passport and wear a monitoring device. The monitoring
    device was ordered removed by the trial judge on August 31, 2018. The
    respondent was not subject to house arrest or a curfew. Nor was he detained in
    custody. Trial proceedings were timely, the four and one-half month adjournment
    at his counsel's request.

[66]

The second finding  that the complainant
    claimed a medical reason to avoid cross-examination  also finds no support in
    the evidence. The complainant advised the Victim Witness Assistance Program of
    her conflict two and one-half months before the return date. She accepted
    service of a subpoena two weeks later. She was unfamiliar with our criminal
    justice system. When contacted by the Crown the day before the return date and
    her departure, there was no suggestion that she would not reappear. It would
    have been preferable for her to have provided her travel itinerary, as
    requested by the Crown, but her failure to do so cannot support the conclusion
    drawn by the trial judge.

[67]

On this basis alone, I would set aside the stay
    and order a new trial.

Ground #2: Entry of a Stay of Proceedings

[68]

The second ground of appeal alleges error in the
    entry of a stay of proceedings as the remedy for the failure of the complainant
    to re-attend the trial proceedings to complete her testimony.

[69]

The circumstances in which the stay was entered
    have already been canvassed and need not be repeated. A brief reference to the
    arguments advanced by the appellant will provide a suitable frame for the
    discussion that follows.

The Arguments on Appeal

[70]

The appellant says that a stay of proceedings is
    an extreme remedy, reserved for the clearest of cases. Its entry in this case
    frustrated the truth-seeking process and deprived the complainant and the
    public of a trial and an adjudication on the merits. It is tantamount to an
    acquittal without a trial.

[71]

In this case, the appellant continues, the
    proceedings that culminated in entry of the stay were procedurally unfair,
    lacking in the essentials of natural justice. The Crown received no meaningful
    notice of the application for a stay of proceedings and was not afforded any
    meaningful opportunity to respond to the legal arguments or factual assertions
    put forward in support of the application by defence counsel.

[72]

The appellant points to another aspect of
    procedural fairness as lacking in these proceedings, one that, in its view,
    amounts to reversible error. The trial judge failed to provide reasons
    sufficient to permit meaningful appellate review of her decision to stay
    proceedings. Read as a whole, in light of the circumstances before her, the
    positions of the parties, and the issues in play, the reasons do not reveal
    that the trial judge seized the substance of what was before her. She gave no
    reasons for making adverse findings against the complainant and adopted,
    without more, the emotive language of defence counsel. What was said is unrevealing
    of any consideration of less drastic remedies than a stay of proceedings, or of
    the basis for entry of the stay.

[73]

At all events, the appellant submits, the
    circumstances of this case fall well short of what is required to warrant a
    stay of proceedings. This was not the clearest of cases. There was no evidence
    of any prosecutorial misconduct. The proceedings were timely. Nothing done or
    omitted compromised the respondent's right to make full answer and defence. If
    any prejudice resulted from the complainant's failure to re-attend on the
    resumption of trial proceedings, alternative remedies were available.
    Completion of the balance of the case for the Crown. A brief adjournment to
    determine the complainant's availability to re-attend. And if she were
    unwilling or failed to attend, striking her evidence from the case for the Crown.
    A fair trial remained viable. But the trial judge failed to engage in any
    balancing of the interests, as the authorities governing stays of proceedings
    require.

The Governing Principles

[74]

A stay of proceedings is the most drastic remedy
    a criminal court can order. This is so because it halts the prosecution of an
    accused. A stay of proceedings frustrates the truth-seeking function of a
    criminal trial. It deprives the public of the opportunity to see justice done
    on the merits. Victims of crime are deprived of their day in court:
R. v.
    Babos
, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 30, citing
R. v.
    Regan
, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 53.

[75]

However, courts recognize that there are some
    cases in which a stay of proceedings for an abuse of process will be warranted.
    These cases are rare. It is only the clearest of cases when a stay of
    proceedings will be warranted:
Babos
, at para. 31, citing
R. v.
    O'Connor
, [1995] 4 S.C.R. 411, at para. 68. At bottom, each assertion of
    an abuse of process, thus each claim for a stay of proceedings, is rooted in
    state conduct.

[76]

In general, stays of proceedings for an abuse of
    process will be warranted in two categories of cases:

i.

where the state conduct compromises the fairness
    of an accused's trial (the main category); and

ii.

where the state conduct creates no threat to
    trial fairness but risks undermining the judicial process (the residual
    category).

See
Babos
, at para. 31,
    citing
O'Connor
, at para. 73.

[77]

The test to determine whether a stay of
    proceedings should be entered is the same for both categories. It consists of
    three requirements:

i.

prejudice to an accuseds 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 its outcome (the
prejudice
element);

ii.

absence
of an
alternative

remedy
capable of redressing the prejudice (the
remedy
element); and

iii.

in cases of uncertainty after consideration of
    elements i and ii, an assessment of the
balance
between the interests
    favouring entry of a stay, such as denouncing misconduct and preserving the
    integrity of the justice system, against society's interest in a final decision
    on the merits (the
balancing
element).

See
Babos
, at para. 32,
    citing
Regan
, at paras. 54, 57. See also
Canada (Minister of Citizenship
    and Immigration) v. Tobiass
, [1997] 3 S.C.R. 391, at paras. 91-92.

[78]

For cases in the main category, the question
    involved in the
prejudice
element is whether the accused's right to a
    fair trial has been prejudiced by the state conduct and whether that prejudice
    will be carried forward through the conduct of the trial. The focus is on
    whether there is
ongoing
unfairness to the accused:
Babos
, at
    para. 34.

[79]

For cases in the residual category, the
prejudice
element is concerned with whether the state conduct, usually but not always
    misconduct, offends societal notions of fair play and decency and whether
    proceeding with a trial in the face of that conduct would harm the integrity of
    the justice system:
Babos
, at paras. 35, 37;
Tobiass
, at para.
    91.

[80]

In connection with the
remedy
element,
    the question is whether some remedy short of a stay is capable of redressing
    the prejudice. The spectrum of available remedies depends on the nature of the
    prejudice involved. Where the main category is implicated, with its concern
    about trial fairness, the focus is on restitution of an accused's right to a
    fair trial. For the residual category, where the claim has to do with prejudice
    to the integrity of the justice system, the focus is on whether something less
    than a stay will adequately dissociate the justice system from the state
    conduct going forward:
Babos
, at para. 39.

[81]

The
balancing
element assumes added
    importance for cases that invoke the residual category. The task of the court
    is to decide which of two options better protects the integrity of the justice
    system: staying the proceedings or having a trial despite the challenged
    conduct. Relevant factors include but are not limited to:

i.

the seriousness of the state conduct;

ii.

the systemic or isolated nature of the conduct;

iii.

the circumstances of the accused;

iv.

the offences charged; and

v.

societys interest in a trial on the merits.

See
Babos
, at para. 41.

[82]

An accused who seeks a stay under the residual
    category faces an onerous burden. This follows from the combined effect of the clearest
    of cases threshold and the balancing of societal interests that must take
    place in such cases. Cases warranting a stay will be exceptional and very
    rare". A stay will be entered only where the affront to fair play and decency
    is disproportionate to societys interest in the effective prosecution of
    criminal cases:
Babos
, at para. 44;
Tobiass
, at para. 91; and
R. v. Conway
, [1989] 1 S.C.R. 1659, at p. 1667.

The Principles Applied

[83]

As I will explain, I would give effect to this
    ground of appeal. Simply put, neither the circumstances of the case nor the
    governing legal principles support entry of a stay of proceedings as the
    appropriate remedy for the complainant's failure to re-attend for the
    resumption of trial proceedings.

[84]

This case does not involve any allegation of
    constitutional infringement. The proceedings were timely. There was no tenable
    allegation of a breach of the right to make full answer and defence. There was
    no reason to conclude that the respondent would not be afforded the opportunity
    to cross-examine the complainant at a later date. Recall that the
    cross-examination could have been commenced on the day following the complainant's
    evidence in-chief, but was delayed by four and one-half months due to the
    respondent's insistence on the grounds of trial fairness. Other witnesses were
    available and sufficient time allotted to complete their evidence. But for the
    intransigence of defence counsel, there was no reason their evidence could not
    have been adduced.

[85]

In the absence of any constitutional
    infringement to ground a claim for the remedy of a stay of proceedings, I turn
    to the availability of the doctrine of abuse of process as a potential source
    for the remedy afforded.

[86]

At bottom, abuse of process involves state
    conduct that compromises the fairness of an accused's trial or risks
    undermining the integrity of the judicial process.

[87]

In this case, it is debatable whether any state
    conduct is implicated.

[88]

The complainant's failure to re-attend can
    scarcely be laid at the feet of the state. She was re-subpoenaed two months
    before the resumption of trial proceedings. She agreed to return at the
    conclusion of her evidence in-chief. There is no suggestion that the state
    colluded in her absence. The trial judge's conclusion that the complainant's
    failure to attend was due to her wish to avoid cross-examination is at best
    tenuous, perhaps better said, speculative.

[89]

The trial judge's eager grasp of defence
    counsel's characterization of the respondent's torturous existence under the
    conditions of his release order moves no freight in the abuse of process
    analysis. The terms of the release were commonplace. No house arrest. No
    curfew. And the electronic monitoring term was removed by the judge herself.

[90]

This was not the clearest of cases as the
    authorities demand for entry of a stay of proceedings. There was no state
    conduct offensive to societal notions of fair play and decency. A witness did
    not show up in accordance with her subpoena. For her own reasons. Sometimes,
    this happens. It shouldnt, but it does. But it is not cause to invoke the most
    drastic of remedies to halt the prosecution. That the judge was displeased  in
    her own words, upset"  affords no basis for a stay of proceedings.

[91]

Other remedies short of a stay of proceedings
    were available. Use the court time to hear the balance of the case for the Crown.
    Direct the Crown to determine the availability of the complainant. Depending on
    the response, reschedule the proceedings. Consider any applications that may
    arise out of the response. If the complainant fails to attend, consider the
    remedy.

[92]

In this case, the trial judge did not apply the
    test that determines whether a stay of proceedings was warranted. Her findings
    of fact about the complainant's motive for failing to attend and the
    respondent's torturous experience are at best tenuous, if not entirely
    speculative. And there was no balancing of interests, as required by
Babos
,
    at para. 41.

[93]

In my view, the stay of proceedings must be set
    aside.

Disposition

[94]

For these reasons, I would allow the appeal, set
    aside the stay of proceedings, and order a new trial to be held before a
    different judge of the trial court.

Released: March 22, 2021 JMF

David Watt J.A.

I agree. Fairburn A.C.J.O.

I agree. Grant Huscroft J.A.


