R. v. B.(I.), 2014 ONCJ 368

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. Identity of offender not to be published. —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. Identity of victim or witness not to be published.—

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. No subsequent disclosure.— No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act , which deals with the consequences of failure to comply with these provisions, states as follows: 138. Offences.—

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. Citation: R. v. B.(I.) , 2014 ONCJ 368 ONTARIO COURT OF JUSTICE sitting under the provisions of the Youth Criminal Justice Act , S.C. 2002, c. 1, as amended; BETWEEN: HER MAJESTY THE QUEEN Respondent — AND — I.B. and A.R. Applicants Before Justice R.J. Otter Heard on May 20, 2014 Reasons for Judgment released on July 29, 2014

Mr. Thomas Shoniker and Mr. Christian Pearce......................................... counsel for the Applicants Mr. Philip Kotanen ................................................................................. counsel for the Respondent R.J. Otter J.: [ 1 ] This is an application for a stay of proceedings in this case. The applicants submit that their right to a fair trial under

section 7 of the Canadian Charter of Rights and Freedoms has been breached due to prosecutorial misconduct that undermines the integrity of the justice system. In their view, the only remedy is a stay of proceedings. [ 2 ] The respondent submits that the applicants’ Charter rights have not been infringed. Even if I were to find a breach, there is no remedy warranted and particularly not the exceptional remedy of a stay of proceedings. BACKGROUND [ 3 ] On January 22, 2014, the applicants, two accused young persons, I.B. and A.R. attended court to face their trial on assault charges. Mr.

K.P., a young person, was subpoenaed by the Crown as a courtesy to the defence, to appear as a witness. Twice during the day on January 22, Crown counsel, Mr. Paul Amenta, approached K.P. and his mother, Ms. P., in the hallway outside of the courtrooms and had two brief interactions — the content of which forms the basis of this application. Following the second encounter, which occurred during the lunch break, defence counsel for the accused jointly brought an application to remove Mr. Amenta as the assigned Crown counsel on this case. Another Crown counsel, Ms.

Donna Kellway, acted for the Respondent on the application at that time. Before the application began, I directed Mr. Amenta to leave the court. While he was leaving the courtroom, he is alleged to have directed certain comments towards the accused young persons and their fathers, which is the third and final incident forming the basis of this stay application. [ 4 ] Prior to conclusion of the hearing on the second day, January 23, 2014, and after the lunch recess, on the application for the removal of Mr.

Amenta, Crown counsel informed the court that the Scarborough Office of the Crown Attorney, on its own accord, had chosen administratively to remove Mr. Amenta from the further conduct of this trial. A new Crown attorney would conduct this trial against these accused young persons. [ 5 ] The Crown was nonetheless prepared to continue the motion at that time. After some thought, Mr. Shoniker remained somewhat perplexed at this turn of events. Having achieved the defence objective of having Mr. Amenta removed from the conduct of the trial, he left the matter up to me.

The defence did not wish to continue further with its motion. I deemed the matter abandoned. The trial was adjourned to set further trial dates. [ 6 ] Shortly thereafter, I was advised that this matter had morphed into this abuse of process application. No further evidence was received. [ 7 ] Defence counsel jointly applied for an application for a stay of proceedings in light of the three incidents involving Mr. Amenta that occurred on January 22.

The grounds for the application, as set out in the Applicants materials, are: The inappropriate behaviour of Crown Counsel during the course of this matter has resulted in a breach of the Applicants’ s.7 Charter rights such that it has irreparably: i. Compromised the fairness of the Applicants’ trial, should it continue to go forward, and/or ii. Undermined the integrity of the judicial process. iii. Resulted in no remedy for redress other than a stay of proceedings. [ 8 ] The relief sought is a stay of proceedings pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms .

FACTS [ 9 ] For the purpose of reviewing the evidence, I have categorized the allegations, and refer to them as: the “morning incident”, the “afternoon incident”, and the “courtroom incident”. All the evidence was heard on a voir dire . The Morning Incident [ 10 ] K.P. testified that sometime after 10:00 am Mr. Amenta approached him outside of courtroom 413 and spoke to him for ten to fifteen seconds. Mr. Amenta said to him “I know this is hard” and “make sure you tell the truth.” K.P. gave evidence that throughout the conversation, Mr. Amenta stood 12 to 15 inches from him. He testified that Mr.

Amenta was speaking in a “loud tone…to make sure everybody hears.” After Mr. Amenta made these comments to K.P., he shook K.P.’s hand. The interaction ended when Ms. P., K.P.’s mother, pulled him aside and told him “let’s go.” [ 11 ] When asked how the interaction made him feel, K.P. said he felt like Mr. Amenta was “trying to make me do shit.” In cross- examination, K.P. acknowledged that he felt that nothing about this interaction with Mr. Amenta was impolite.

[ 12 ] Ms. P. also testified about the morning incident. In cross-examination, she told the court that Mr. Amenta was yelling at her son about telling the truth. She asserted that Mr. Amenta was two inches away from her son’s face throughout this interaction. She walked away from Mr. Amenta with K.P. because she was concerned that they were discussing matters in front of the two accused youths, who were nearby. [ 13 ] Detective Constable Ilson, the officer in charge of this youth matter, was called as a Crown witness on the application for Mr. Amenta’s removal.

He testified that he observed an interaction between Mr. Amenta and K.P. outside courtroom 413 at sometime between 10:15 and 10:30. He recalled Mr. Amenta telling K.P. to ensure that he would tell the truth if called upon to testify. His recollection was that Mr. Amenta stood roughly a foot away from K.P. during this conversation. He also testified that it was a “calm conversation” and that Mr. Amenta was using his “ordinary speaking voice” throughout. [ 14 ] The final source of evidence with respect to the morning incident is a courthouse surveillance video, marked as Exhibit #1 on this application.

A video camera is located outside of 408 court, and delineates the interaction between Mr. Amenta and K.P. outside of the nearby courtroom, 413. The recording is taken from a distance, is of rather low quality, and did not record sound; however, I found it helpful for portraying the length of time of the interaction and the demeanour of Mr. Amenta. It shows Mr. Amenta leaving courtroom 413 at roughly 10:18, along with a group of other individuals. He appears to speak briefly with someone standing against the wall outside of the courtroom. It is difficult to identify this person.

Eventually, it becomes clear that it is K.P. and his mother, as they walk away from Mr. Amenta and closer to the camera. According to the time stamp on the video, this interaction lasts roughly twenty seconds before K.P. and his mother can be seen walking away. Somewhat contrary to the testimony of Ms. P., the video does not show Mr. Amenta leaning in unusually close to her son. Mr. Amenta remains roughly one to two feet from K.P. during the conversation. I am also unable to observe a handshake between Mr.

Amenta and K.P. —though owing to the poor quality of the image, I am unable to definitively say that one did not occur. K.P. accepts that there was a handshake between the two of them. The Afternoon Incident [ 15 ] The second interaction between Mr. Amenta and K.P. occurred outside of courtroom 403 during the lunch recess. K.P. testified that he and his mother were sitting on a bench outside that courtroom when Mr. Amenta approached them—an interaction that went on for roughly 30-40 seconds. K.P. testified that Mr. Amenta “came up to me all mad. It was like he was mad about something.” According to K.P., Mr.

Amenta yelled to him “we don’t fuck around” and “we’re trying to get these shitheads out the street.” K.P. testified that Mr. Amenta told him to look up the word “perjury” and that if he did not tell the truth, “he’ll come after me and I’ll get like the – most trouble I can get in.” K.P. testified that Mr. Amenta’s tone towards him during this conversation was that of a stern father disciplining his child. [ 16 ] He said that he felt “threatened” by Mr. Amenta during the course of this interaction. It ended when his mother told Mr. Amenta that she did not appreciate his threatening her son. At this point, Mr.

Amenta walked away. [ 17 ] On cross-examination, K.P. acknowledged that, on the basis of the entire second interaction, that he understood Mr. Amenta’s words to mean that he had a legal obligation to tell the truth. K.P. also testified that he did not know the meaning of the word “perjury” Mr. Amenta told him where he could look it up. [ 18 ] Ms. P. gave testimony regarding this afternoon incident. She stated that Mr. Amenta yelled at her son that he was “going to fucking get you” if he committed perjury. Ms. P. asserted that Mr.

Amenta was standing too close to K.P. — “nose to nose” — and that she felt threatened and uncomfortable when Mr. Amenta was swearing at her son. “Make sure you tell the truth.” “We don’t like liars.” She felt that Mr. Amenta was scaring her son. When she explained perjury to her son, he replied, “Is he going to put me in jail?” She wasn’t sure as to whether or not Mr. Amenta wanted her son to tell a lie in court. She eventually took K.P. and removed him from the situation, at which point Mr. Amenta stated “this is not like this morning when you walk away from me.” Ms.

P. testified that, during the afternoon interaction, Mr. Amenta’s voice was very loud and that probably an “eight or nine” on a scale to ten. His tone was not polite or pleasant. [ 19 ] In cross-examination Ms. P. agreed that Mr. Amenta was trying to get her son to tell the truth “if that’s the way you tell someone to tell the truth.” She confirmed that Mr. Amenta swore twice—saying “fuck” once and “shit” once during the afternoon interaction with her son.” On re-examination, Ms. P. confirmed that she left the second interaction feeling very upset with how Mr.

Amenta and how he had acted towards her son. [ 20 ] Detective Ilson was present for the afternoon interaction. He testified as a Crown witness. Upon the court breaking for lunch, around 1:00 pm, he observed Mr. Amenta approach K.P. and his mother who were seated on a bench outside the courtroom. Mr. Amenta cautioned K.P. that he had knowledge that K.P. gave a statement to police that was inconsistent with the evidence in the case: Mr.

Amenta had believed that he had – K.P. had provided a statement to police that was inconsistent with other evidence and that he was not in a position to direct the police in any way regarding, uh, an obstruction of justice charge or anything of that nature, but that he did want him to be aware that if testimony was given by K.P. that was later deemed to be, uh, proven, uh, false testimony or incorrect testimony, and that he had knowledge of that, that, um, there was a punishment for a – a charge of perjury. [ 21 ] Detective Ilson could recall one expletive uttered by Mr. Amenta—when Mr.

Amenta told K.P. that he would hope that if someone “had beaten the shit out of him, that…a witness would testify on his behalf and tell the truth rather than lie on the stand.” [ 22 ] Detective Ilson stated that Mr. Amenta’s voice being much louder in the afternoon interaction than during the morning one. In cross-examination he clarified that, although he was “somewhat surprised at…the volume of the conversation” he knows Mr. Amenta to typically talk in a loud and animated manner. He remembered that Mr. Amenta was standing roughly a foot to a foot and a half from where K.P. was seated in his chair.

The cross-examination of Detective Ilson was not completed when the application was deemed abandoned. Mr. Amenta did not testify at any time nor did he file any affidavit in this proceeding. I do not consider his statements reported in the Toronto Star to be evidence on this matter.

The Courtroom Incident [23] The third incident at issue in this Application involves comments directed by Mr. Amenta towards the accused youths andtheir fathers after I directed him to leave the courtroom. M.P. and A.L., fathers of the two accused youth, were called as witnesses by theApplicants. [24] M.P. was in the courtroom when Mr. Amenta was leaving as directed. Mr. Amenta walked by him while leaving thecourtroom and uttered the words “fuckin’ cowards”. M.P. was unable to determine whether it was directed at anyone particular. M.P.stated that Mr.

Amenta’s voice was at about a seven out of ten in terms of volume when he made that comment. M.P. estimated that hewas roughly four feet away from Mr. Amenta when this occurred. [25] A.L. was also seated in the courtroom as Mr. Amenta was leaving. He looked in A.L.’s direction said “you fuckingcowards”, then looked back towards the door and left the court. In cross-examination, A.L. testified that Mr.

Amenta uttered thecomment in a tone “slightly lower than normal speaking tone.” THE ACCUSED’S S.7 FAIR TRIAL RIGHTS – THE MAINCATEGORY The Applicants’ Position [26] The Applicants submit that their s.7 Charter right to make a full answer and defence have been compromised by the conductof Mr. Amenta toward an obvious witness for the applicants, K.P. They submit that this witness’s “independent testimony may now beinfluenced by the conduct and out of Court statements of the Crown.” Further, the risk of Mr. Amenta having influenced K.P.’stestimony is heightened because of his youth. They rely on R. v.

J. (J.T.), at 766 (SCC) for the proposition that “[a]young person is usually far more easily impressed and influenced by authority figures.” The Applicants further assert that the result ofMr. Amenta’s comments towards the witness is such that “it cannot be said his testimony will not be affected” and that even if Mr.Amenta’s conduct has no resulting effect on K.P.’s testimony, “the mere fact that it reasonably can, or was intended to, is enough toground this breach.” [27] The Applicants further submit that Mr. Amenta’s conduct has prejudiced the ability of the accused youths to participate in theproceedings.

In support of this, they argue that “It cannot be said that the young person’s rights to garner evidence and make decisionsabout whether or not to testify have not been influenced by the conduct of the Crown.” The Respondent’s Position [28] The Respondent argues that there has been no breach of the accuseds’ s.7 right to a fair trial. There is no evidence that theyouth witness’s evidence was, or will be, influenced by Mr. Amenta’s conduct.

The nature of the alleged threat was to suggest that thewitness needs to tell the truth when testifying, the Respondent submits that it is difficult to foresee how the impact of the threat couldlead to an unfair trial for the accused. There is nothing improper in urging a witness to tell the truth.

If he does not, he could indeed facea charge of perjury. [29] The Respondent notes that even if the Applicants had adduced evidence to suggest that the accuseds’ fair trial rights wereimplicated, they have failed to meet their burden is demonstrating why an administrative change in Crown counsel would adequatelyremedy any such conduct.

Analysis [30] As the Supreme Court of Canada recently set out in R v Babos, 2014 SCC 16, there are two general categories of abuse ofprocess: first, there are cases in which state conduct prejudices the accused’s s.7 Charter right to make full answer and defence—this isthe “main” category. Secondly, if there are those cases in which the state conduct creates no threat to trial fairness, but risks underminingthe integrity of the judicial process—this is the “residual” category. On the Application before me, the Applicants allege Mr. Amenta’sconduct engages both the main category and the residual category.

As confirmed in Babos, both categories follow the same three-steptest for determining whether a stay of proceedings is the appropriate remedy. However, to engage this test, an applicant has the burden tofirst establish, on a balance of probabilities, that there has been an abuse of process, requiring a remedy. [31] On the question of the s.7 right to full answer and defence, the accused generally must show “actual prejudice to [his or her]ability to make full answer and defence to be entitled to a remedy under s. 24(1) (R. v. O'Connor, (SCC), [1995] 4S.C.R. 411, at para. 74).

This most often occurs in cases where the state’s failure to disclose a material piece of evidence has an adverseeffect on one’s ability to respond the allegations. Here, the Applicants are required to demonstrate that either of Mr. Amenta’sinteractions with the potential defence witness, or his comments while exiting the courtroom, have impaired their ability to respond fullyand fairly to the allegations against them. [32] The Applicants provided no evidence of prejudice in the voir dire.

There was no viva voce evidence from K.P. to suggest thathe felt compelled to lie or that he would refuse to testify in light of his interaction with Mr. Amenta. I place no weight on the testimonyof Ms. P. in the regard—her opinion as to whether Mr. Amenta was imploring her son to lie is a distinct matter from whether there was,in fact, a negative impact on K.P.’s testimony. K.P. did not provide any affidavit evidence in support of the Applicants’ assertion that histestimony has been or would be influenced. Indeed, he did not hesitate to testify candidly and confidently in this proceeding.

TheApplicants had ample opportunity to file an affidavit by the accused setting out how their “right to garner evidence and make decisions”

has been prejudiced by Mr. Amenta’s conduct. They did not do so. [33] It appears, from the Applicants’ submissions, that they are asking the court to infer prejudice to the ability of the accused tomake full answer and defence. Indeed, in stating that “it cannot be said [K.P.’s] testimony will not be affected” the Applicants overlookthat it remains their burden to establish, on the balance of probabilities, that their s.7 rights have been infringed by Mr. Amenta’sconduct. On the evidence before me, I find that K.P. understood Mr. Amenta to be encouraging him to tell the truth if he was called totestify. While Mr.

Amenta may have exhibited poor and unprofessional judgement, this, on its own, is insufficient to demonstrate aCharter breach on the evidence before me. It is also possible that the consequences of Mr. Amenta’s behaviour will become clearer at alater date when K.P. returns to testify. Although I have found no breach of the Applicants’ s.7 rights, it remains available to the accusedto bring another application at a later date, should further evidence warrant such an application. [34] In

summary, I find there is no evidence that K.P.’s testimony has been influenced, or that the accused youths face anyprejudice to their ability to make full answer and defence in light of Mr. Amenta’s conduct. As I find there is no abuse of process unders.7 of the Charter, it is unnecessary to consider the appropriate remedy under s. 24(1). CONDUCT THAT THREATENS THE INTEGRITY OF THEJUDICIAL PROCESS – THE RESIDUAL CATEGORY The Applicants’ Position [35] The Applicants submit that Mr.

Amenta’s “inflammatory and profane language, challenging and threatening independent,youthful witnesses, and then calling them and their parents cowards leaving them frightened and confused, obviously exceeds the role ofthe Crown and brings the administration of justice into disrepute.” They argue that the manner in which this behaviour brings theadministration of justice into disrepute is that Mr. Amenta’s conduct was due to the fact that it was a significant departure from theCrown’s role as a neutral minister of justice.

They argue that by sending the message that the Crown “is out to win at all costs”, society’snotion of fair play and decency has been offended. [36] Further, they submit that allowing the trial to proceed would clearly aggravate this abuse. They argue that a stay is the onlypossible remedy here, as the egregious nature and significant degree of Mr.

Amenta’s conduct requires a forceful and stern response.Finally, the Applicants submit that, should the court deem it necessary to engage in balancing society’s interest in the interests in favourof granting a stay against the interest that society has in having a final decision on the merits, the balance favours a stay, as society has alowered interest in prosecuting youths for an offence such as assault. The Respondent’s Position [37] The Respondent submits that there is no evidence that Mr.

Amenta’s conduct was so egregious that continuing the trial inlight of it would bring the administration of justice into disrepute. The Crown argues that Mr. Amenta’s conduct does not amount to anabuse of process because, unlike in Babos, Crown counsel did not objectively intimidate or threaten the accused in any way. It furthersubmits that Mr.

Amenta’s interaction with K.P. cannot be considered as “egregious” conduct amounting to prosecutorial misconduct as“at most, an upset lawyer, on a particular day, now off the case for months, loudly and colloquially admonishing a witness to tell thetruth.” [38] On the issue of Mr. Amenta’s comments towards the accused youths and their fathers, the Respondent submits that thisincident does not amount to an abuse of process either. The respondent notes that the testimony given by the accuseds’ fathers wascontradictory with respect to the loudness and tone of the alleged utterance.

Moreover, the comments were not heard by the lawyers foreither party or myself, despite our presence in the room when the comments were allegedly made. The Respondent submits that, at most,Mr. Amenta’s conduct should be characterized as “brief angry colloquial utterances by the Crown leaving the case in the hands of adifferent Crown counsel.” [39] Finally, the Respondent submits that, should the court deem it necessary to consider a remedy, the nature of Mr. Amenta’sconduct does not warrant a stay of proceedings.

The Respondent notes that a change of Crown counsel, paired with the significantpassage of time since the incident, and several months before the trial resumes is sufficient to remedy any abuse that may have occurred,as was the case in Babos. Moreover, the Crown highlights a number of other alternative remedies, short of a stay, which would besufficient to remedy any violation of societal notions of fair play and decency. Such options might include: K.P. testifying remotely ortransferring the trial to a different jurisdiction.

ANALYSIS [40] When the residual category is invoked, the first stage of the test is met when it is established that the state has engaged inconduct that is offensive to societal notions of fair play and decency, and that proceeding with a trial in the face of that conduct would beharmful to the integrity of the justice system. As the SCC emphasized in Babos, context is central when considering the seriousness ofthe impugned Crown conduct. [41] The Supreme Court explained the role of the Crown as follows in R. v.

Boucher, (SCC), [1955] S.C.R. 16: 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 theCrown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legalproof 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 prosecution excludes any notion ‘of winning or losing; his function is a matter of public duty than which in civil life there can benone charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousnessand the justness of judicial proceedings. [42] In assessing the totality of Mr. Amenta’s conduct, over the course of the three incidents, while unprofessional, crude andreprehensible, in my view, does not amount to an abuse of process warranting a remedy under the court’s residual powers.

Of his twointeractions with the youth witness, K.P., the afternoon one is the most disconcerting. While there was conflicting testimony as towhether Mr. Amenta was threatening K.P., or simply imploring him to tell the truth in his testimony, the evidence from K.P. and hismother, along with Detective Ilson, makes clear that Mr. Amenta yelled at a youth witness and swore in his presence—both of whichremain unacceptable behaviour in front of a witness, particularly a youthful one such as K.P.

I do not consider the nature of Mr.Amenta’s language to be “colloquial.” It is profane – plain and simple. [43] However, one must not lose sight of the impact of this behaviour in assessing whether it amounts to an abuse of process. Onone hand, the Applicants initially brought an application for Mr. Amenta’s removal and a subsequent application for a stay shortly afterthe incidents, suggesting the seriousness of the conduct and distinguishing the present case from Babos. On the other hand, K.P. gavetestimony to the effect that he understood Mr. Amenta to be joking when making the comments in question.

Moreover, the fact that K.P.made no suggestion that Mr. Amenta’s conduct would have any negative impact on his trial testimony is an important consideration as towhether Mr. Amenta’s conduct violated society’s collective sense of fair play and decency under the residual category. [44] Finally, while it is certainly an understatement that Mr. Amenta’s comments towards the accused youths and their fatherswere improper, it does not rise to the level of egregious conduct warranting a remedy.

While other tribunals maintain jurisdiction overunprofessional conduct by an individual lawyer, the question before this court is whether the conduct, on behalf of a representative ofthe Crown, is egregious enough to warrant a remedy in the related criminal proceedings. I find that it does not. [45] To help illustrate my ultimate finding, it is worth considering Mr. Amenta’s conduct in the context of abuse of processjurisprudence where courts have deemed it necessary to grant remedies.

Most recently, in Babos, the Supreme Court of Canadaconsidered a case in which the Crown counsel attempted to compel the accused to plead guilty by threatening to charge him with moreoffences. The Court found that such conduct was “reprehensible”; however, the majority found that the fact that the Crown counsel whomade these threats was removed from the case was a sufficient remedy and that a stay wasn’t necessary. In Canada v Tobiass, (SCC), 1997 3 SCR 391 the Assistant Deputy Attorney General in charge of civil litigation at the Department of Justice metwith the Chief Justice of the Federal Court.

The two men discussed the scheduling of the appellants' cases and later that day exchangedletters, neither of which was copied to any of the counsel for the appellants. Here, the Supreme Court of Canada found that theappearance of judicial independence suffered significantly as a result of that meeting.

The Court also found that ordering the cases to goforward under the supervision of a different judge of the Trial Division without any direction or intervention from the Chief Justice orthe Associate Chief Justice would suffice as a remedy. [46] Finally, the decision in R v Regan, 2002 SCC 12 helps illustrate that potentially abusive behaviour itself is insufficient towarrant a stay in the absence of compromised fair trial rights. As the majority noted: “There was no abuse of process in this case.

Thecumulative effect of the judge shopping, pre-charge Crown interviews, the improper police announcement, and the addition of count 16in the direct indictment, while troubling in some respects…did not have an ongoing effect on the accused which would jeopardize thefairness of his trial.” (at para 104). In light of the abuse of process case law, I am unable to find that Mr.

Amenta’s conduct — thoughreprehensible — had the effect of offending society’s sense of fairness and decency to the extent of requiring a remedy. [47] In the event that I am incorrect on the question of whether the Crown conduct amounts to an abuse of process warranting astay, I will proceed to an analysis under the second stage of the test as set out in Babos. [48] Where a court finds that the Crown conduct does amount to an abuse of process, the focus turns to whether an alternateremedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward.

Asthe Supreme Court of Canada noted, where the residual category is invoked, remedies must be directed towards the specific harm. Itmust be remembered that for those cases falling solely within the residual category, the goal is not to provide redress to an accused for awrong that has been done to him or her in the past. Instead, the focus is on whether an alternate remedy short of a stay of proceedingswill adequately dissociate the justice system from the impugned state conduct going forward. [49] In the case at bar, I find that, owing to the nature of Mr.

Amenta’s conduct, a change in Crown counsel to prosecute the caseis sufficient to remedy any abuse. Indeed, while Mr. Amenta’s behaviour was inflammatory, it was not such that the abuse would beperpetuated or aggravated through the conduct of the trial by a different Crown counsel. It is notable that the evidence before mesuggests that the individuals on the receiving end of this unprofessional conduct were aware that it was an angry outburst by Mr. Amentarather than a systemic issue in the Crown system, or the judicial process itself.

To this end, it is clear that, in voluntarily removing Mr.Amenta from the case, the Office of the Crown Attorney sufficiently disassociated itself from the impugned conduct. [50] Finally, if the analysis were to proceed to the third and final stage, the court must balance staying the proceedings againsthaving a trial despite the impugned conduct, with respect to which better protects the integrity of the justice system. This inquirynecessarily demands balancing.

The court must consider such things as the nature and seriousness of the impugned conduct, whether theconduct is isolated or reflects a systemic and ongoing problem, the circumstances of the accused, the charges he or she faces, and theinterests of society in having the charges disposed of on the merits. [51] In the case at bar, while the youthful nature of the accused, and the charge of assault would certainly mitigate against thenecessity of proceeding to trial where the abuse was of a serious nature, I find that the nature of the abuse in question and the pre-emptive remedial steps taken by the crown are sufficient to the extent that society’s interest lies in having the charges disposed of on themerits. [52] Ultimately, I find that, while the nature of Mr.

Amenta’s conduct is reprehensible, it is not the type of behaviour that amountsto an abuse of process warranting a remedy by this court. Further, even if it were such that the conduct in question necessitated a remedy,

I am satisfied that the steps taken by the Office of the Crown in voluntarily removing Mr. Amenta from the case are sufficient to remedy the abuse. This is not one of the clearest of cases where the exceptional remedy of a stay of proceedings is warranted. Released: July 29, 2014 Signed: “Justice R.J. Otter”