R. v. J.Y., 2024 ONCJ 21

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code , which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

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) MANDATORY ORDER ON APPLICATION — 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. . . . 486.6 OFFENCE —

(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. J.Y., 2024 ONCJ 21 DATE: 2024 01 16 COURT FILE No.: Windsor 22-11090 BETWEEN: HIS MAJESTY THE KING — AND — J.Y.

Before Justice S. G. Pratt Heard on 29 November 2023 Reasons for Judgment released on 16 January 2024 Delia Greco............................................................................... Counsel for the Respondent Julie Santarossa........................................................................ Counsel for the Applicant RULING ON STAY APPLICATION Pratt J.: [ 1 ] J.Y. is charged with eleven criminal offences. Ten counts are sexual assaults, and one is mischief. He has applied to have one of the sexual assault counts, count 11, stayed by the Court.

He says the circumstances surrounding this charge and its continued prosecution amount to an abuse of process for multiple reasons. The Crown disagrees. It says that there has been no abuse of process, and that any concerns surrounding the history of that count can be addressed by curtailing the evidence the Crown will rely on, and by a fulsome cross-examination of the named complainant. [ 2 ] I agree with the Applicant that the charge should be stayed. These are my reasons.

The History of Count 11 [ 3 ] The count in question alleges that on 30 October 2017 the Applicant sexually assaulted K.M., hereinafter the Complainant. The alleged assault took place over the course of a massage treatment provided by the Applicant, who at the time was working as a Registered Massage Therapist (RMT) at Mifflin Chiropractic in Tecumseh, Ontario. The Complainant was preparing for an Ironman Triathlon and had various physical issues that needed treatment. On the recommendation of her friend and fellow triathlete (and also an RMT) L.C., the Complainant went to the Applicant twice.

The first visit was on 28 October, the second was two days later. [ 4 ] Following the 30 October visit, the Complainant told her mother that she had been assaulted. Police were contacted. They took a brief statement from the Complainant over the phone prior to her leaving for the triathlon, and a more detailed video statement on her return. They also spoke with the Complainant’s mother, Ms. L.C., and others.

The Applicant was invited to provide a statement to police but he declined. [ 5 ] The complaint centred around what the Complainant felt was inappropriate touching and draping done by the Applicant during the massage. She expressed her concerns to police, who spoke with Ms. L.C. Based on her own knowledge of massage techniques, Ms. L.C. told police that what she understood had taken place did not seem untoward. Following what appears to have been a thorough investigation, Detective Amanda Zielinski of the Essex OPP made the decision not to lay a charge.

The police report notes the allegation of 30 October 2017 to be “unfounded”. DC Zielinski did, however, refer the matter to the College of Massage Therapists of Ontario (CMTO). I was provided with a memo from Angela Gates dated 29 November 2017 where she said she was notified by DC Zielinski of the situation. At the time, Ms. Gates was Interim Director, Professional Conduct for the CMTO. [ 6 ] It is important to note that the police investigation was closed at that time. No further steps were taken after the referral to the CMTO.

The Applicant was told by police of the decision not to lay a charge against him. [ 7 ] After she was told there would be no criminal charge, the Complainant filed a complaint with the CMTO. The Applicant was notified of the complaint by letter dated 21 December 2017 and asked to respond. He did, through counsel. In a submission dated 16 February 2018, the Applicant’s counsel set out his recollection of the visit and made arguments as to why no professional misconduct had taken place. The CMTO was also given a statement by Ms.

L.C., various forms that had been filled out at the time of the Complainant’s visits, letters from the Applicant to the Complainant, educational materials on the techniques used, and an account statement. There was also a letter from Mifflin Chiropractic. [ 8 ] As part of the CMTO investigative process, the Applicant had what I was told was a day-long interview with investigators. He was required to answer investigators’ questions in accordance with CMTO by-laws. [ 9 ] Further, all materials provided by the Applicant to the CMTO were forwarded to the Complainant for her response.

I am unaware if she provided any further information. [ 10 ] On 22 July 2020, the Applicant resolved his CMTO matters. By that point, he was facing a total of four complaints lodged by three complainants. In exchange for an undertaking that he cease practicing as an RMT, the disciplinary cases were indefinitely adjourned. They could only be revived if he was found to have violated the undertaking. [ 11 ] Nothing more was done regarding the Complainant’s allegations until November 2021. A different complainant had come forward alleging sexual assault by the Applicant.

That led to police issuing a press release where they invited other complainants to come forward as well. In response to that press release, the Complainant got back in touch with police and restated her earlier claim. Following consultation with the Crown, the police ultimately reopened her file and count 11 was laid.

The Positions of the Parties [12] The Applicant claims a violation of his rights under ss. 7 and 11(

d) of the Canadian Charter of Rights and Freedoms. He arguesthat he relied on the police assurance that he would not be charged to his detriment. Had he known a charge was coming or was evenstill being considered, he would have sought to postpone the CMTO proceeding until after the criminal process was complete. He wouldnot have provided submissions or agreed to the investigative interview. That the Crown and the Complainant now have the materials hefiled with the CMTO compromises the fairness of his trial.

At the very least, it creates the appearance of unfairness as he gave up hisright to remain silent on the Complainant’s allegation only to be charged criminally years later. [13] He also argues that the four years from the closing of the investigation to its reopening represents unreasonable pre-charge delay. [14] Taken together, the delay and the compromising of his right to remain silent should lead to a finding that laying count 11 andcontinuing its prosecution is an abuse of the Court’s process.

The only remedy capable of addressing the prejudice the abuse has causedis a stay of proceedings. [15] The Crown argues that there is no abuse of process. While the decision not to charge the Applicant was made in 2017, theemergence of several new complainants in 2021 is a significant change in circumstance. The state should not be precluded from pursuingthis charge when the landscape surrounding it has changed. [16] While not conceding a breach of the Applicant’s s. 7 or 11(

d) rights, the Crown has agreed that it will not rely on any of thesubmissions made by the Applicant in response to the CMTO complaint or the content of the investigative interview. This, together witha full cross-examination of the Complainant, is in the Crown’s submission sufficient to address any concerns the Court may haveregarding the history of this charge and the impact that history may have on the fairness of the Applicant’s trial. Abuse of Process [17] The doctrine of abuse of process has been part of the common law in Canada since the 19th century.

In the case of Re: Sproule1886 CanLII 51 (SCC), [1886] 12 S.C.R. 140, Chief Justice Ritchie noted the following at paragraph 2: This writ having been issued out of this court, under the seal of the court, and tested in the name of the Chief Justice (and I know of noother way in which, the writ of habeas corpus could be issued on the fiat of a judge of this court), was a proceeding in this court, andevery superior court, which this court unquestionably is, has incident to its jurisdiction an inherent right to inquire into and judge of theregularity or abuse of its process. [18] In the pre-Charter era of the 20th century, however, the applicability of the doctrine to criminal matters was in serious doubt. [19] The case of R. v.

Osborn (ON CA), [1969] 1 O.R. 152 (C.A.), rev’d (SCC), [1971] S.C.R.184, dealt with an alleged conspiracy to utter forged cheques. Osborn had previously been acquitted of possessing the cheques, and soon this second trial entered a plea of autrefois acquit. He argued that the trial judge should enter a stay of proceedings on the secondindictment as his previous acquittal made the proceeding an abuse of the Court’s process. The trial judge did not rule on his jurisdictionto enter a stay but rather proceeded with the trial, which ended in conviction.

On appeal to the Court of Appeal for Ontario, JusticeJessup overturned the trial judge’s decision and affirmed the existence of a discretion to stay charges when a prosecution is so oppressivethat it constitutes an abuse of the Court’s process. [20] That finding was itself overturned by Justice Pigeon, speaking for a majority of the Supreme Court of Canada. After reviewingthe relevant authorities and the decision of Justice Jessup, Justice Pigeon stated the following: It is basic in our jurisprudence that the duty of the courts is to apply the law as it exists, not to enforce it or not in their discretion.

As ageneral rule, legal remedies are available in an absolute way ex debito justitiae [as a matter of right]. Some are discretionary but thisdoes not destroy the general rule. I can see no legal basis for holding the criminal remedies are subject to the rule that they are to berefused whenever in its discretion, a court considers the prosecution oppressive. (Translation added) [21] Justice Pigeon affirmed this point of view in the subsequent case of R. v. Rourke (SCC), [1978] 1 S.C.R. 1021.

Speaking for the majority, Justice Pigeon said this: I cannot find any rule in our criminal law that prosecutions must be instituted promptly and ought not to be permitted to be proceededwith if a delay in instituting them may have caused prejudice to the accused. In fact, no authority was cited to establish the existence ofsuch a principle which is at variance with the rule that criminal offences generally are not subject to prescription except in the case ofspecific offences for which a prescription time has been established by statute.

I have to disagree with the view expressed by McIntyreJ.A. that there could be factual situations giving to a trial judge discretion to stay proceedings for delay. For the reasons I gave in TheQueen v. Osborn [ (SCC), [1971] S.C.R. 184.], I cannot admit of any general discretionary power in courts of criminaljurisdiction to stay proceedings regularly instituted because the prosecution is considered oppressive. In fact, I think the correct view isthat which was expressed as follows by Viscount Dilhorne in Director of Public Prosecutions v. Humphrys [ [1976] 2 All E.R. 497.] (atpp. 510-511): In Mills v.

Cooper, [1967] 2 Q.B. 459, where justices had dismissed a summons on the ground that it was oppressive and an abuse of theprocess of the court, Lord Parker CJ. (at p. 467), while holding that it was not, said: '... every court has undoubtedly a right in itsdiscretion to decline to hear proceedings on the ground that they are oppressive and an abuse of the process of the court.' I must confess to some doubt whether this is a correct statement of the law in relation to magistrates' courts. If it is, it appears to me tobe fraught with considerable dangers.

One bench, thinking a prosecution should not have been brought, will dismiss it as oppressive andvexatious. Other benches on precisely the same fact may take a completely different view, with the result that there is a lack ofuniformity in the administration of justice.

Nor is the existence of the power my noble and learned friends, Lord Salmon and Lord Edmund-Davies, think the judge has and itsexercise without considerable dangers. A judge must keep out of the arena. He should not have or appear to have any responsibility for the institution of a prosecution. Thefunctions of prosecutors and of judges must not he blurred. If a judge has power to decline to hear a case because he does not think itshould be brought, then it soon may be thought that the cases he allows to proceed are cases brought with his consent or approval.

If there is the power which my noble and learned friends think there is to stop a prosecution on indictment in limine, it is in my view apower that should only be exercised in the most exceptional circumstances. *** In my view, the absence of any provision in the Criminal Code contemplating the staying of an indictment by a trial judge or an appealfrom such decision, is a strong indication against the existence of any power to grant such stay. [22] The adoption of the last passage from Viscount Dilhorne was taken by several courts, the Court of Appeal for Ontario amongthem, as a lifeline for the doctrine.

The existence of a discretion to stay a prosecution as abusive was also viewed favourably by ChiefJustice Laskin in concurring reasons in Rourke.

The Chief Justice noted: If, as I think, and as all members of the House of Lords in Connelly recognized, there is merit in the principle that a criminal Court, likea civil Court, is entitled to protect its process from abuse, the question of discretion becomes a matter of discipline, keyed to particularsituations which, as an outgrowth of case law, commend themselves as of a kind in which the principle may be raised. *** Apart from the generality of support for the proposition that a criminal court may stay proceedings which are an abuse of process oroppressive and vexatious and that, in the view at least of Lord Edmund-Davies which is the view I hold, the power may be invoked byevery court having criminal jurisdiction (such courts being presided over in Canada generally by persons qualified lawyers), neitherConnelly nor Humphrys are of direct assistance in the present case.

They do, however, underline, as I would myself, that the power toprevent abuse of process is one of special application and its exercise cannot be a random one. [23] After an exhaustive review of the jurisprudence, Justice Dubin stated the following in the case of R. v.

Young ((1984) (ON CA), 46 O.R. (2d) 520 (C.A.)): 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 stayproceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie thecommunity's sense of fair play and decency and to prevent the abuse of a court's process through oppressive or vexatious proceedings.

Itis a power, however, of special application which can only be exercised in the clearest of cases. [24] Justice Dubin’s approach was especially notable as he considered the doctrine through the lens of s. 7 of the Charter. [25] Recognizing the need for a final statement on this point, the Supreme Court of Canada settled the issue in the case of R. v. Jewitt (SCC), [1985] 2 S.C.R. 128. Speaking for a unanimous Court, Chief Justice Dickson adopted Justice Dubin’s decisionand affirmed the existence of a discretion to stay a proceeding when it would amount to an abuse of process.

The Chief Justice alsoendorsed Justice Dubin’s belief that the discretion should only be exercised in the clearest of cases. [26] Having established jurisdiction to consider the issue, what is meant by an abuse of process? Following Justice Dubin’s finding inYoung, it would be where compelling a defendant to stand trial would violate the fundamental principles of justice that underlie thecommunity’s sense of fair play and decency. That question was also answered by Justice L’Heureux-Dubé, speaking for the majority inR. v.

O’Connor (SCC), [1995] 4 S.C.R. 411. [27] The O’Connor decision set out two principles relevant to the present case: first, it confirmed an alleged abuse of process canimpact Charter-protected rights. Justice L’Heureux-Dubé noted the specific Charter rights involved may change depending on the natureof the case. Second, there exists a separate path to the finding of an abuse of process that does not relate to trial fairness or specificCharter rights.

This residual category of abuse: …instead addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such amanner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thusundermines the integrity of the judicial process. [28] Justice L’Heureux-Dubé also cited Justice Wilson in R. v.

Keyowski (SCC), [1988] 1 S.C.R. 657 confirmingthat an applicant need not show misconduct or improper motive on the part of the Crown before finding an abuse of process. [29] The Applicant’s argument rests on two points: one, that he relied on the police telling him he would not be charged in agreeing toparticipate in the CMTO’s disciplinary process immediately. In so doing, he provided significant information and evidence that hewould not have provided had he known a charge was still possible. Further, that information and evidence is now in the possession ofboth the Crown and the Complainant.

Two, the four years between closing the investigation and reopening it is pre-charge delay thatprejudices his ability to make full answer and defence. [30] I must consider the evidence in totality when deciding this issue and not adopt a piecemeal approach (see: R. v. Murray [2020]O.J. No. 3343 (S.C.J.) at paragraph 143). The CMTO Proceeding

[31] As I noted earlier in these reasons, after the completion of the police investigation DC Zielinski contacted the CMTO. She toldAngela Gates of the allegation and advised that police would not be laying a charge. In the memo from Ms. Gates, filed on thisapplication, she wrote that she asked DC Zielinski to speak to the Complainant about filing a complaint. The Complainant did file thatcomplaint a short time later. On 21 December 2017 the Applicant received written notice of it. [32] At some point prior to that date, the Applicant had been told by police that no charge would be laid.

This is an important point asit affected how he chose to deal with the complaint. He retained counsel and began his participation in the disciplinary process. [33] The Applicant was required, as part of that process, to make himself available for an interview by CMTO investigators. Thatinterview took place at his counsel’s office. I was told it was akin to a civil discovery and took an entire day. In addition, he also filedlengthy written submissions and supporting materials in response to the complaint.

His response was sent by the CMTO to theComplainant so that she could respond to his account. (I note that she would only have received his written materials and not anythingregarding the interview. The materials were sent under a cover letter dated 14 March 2018 and I was told the interview did not takeplace until the following December.) Pursuant to a production order, the Crown has also now obtained the Applicant’s respondingmaterials, including information about the interview.

Crown counsel specified, however, that while they have a report generated by aninvestigator regarding the investigative interview, they do not have the audio recording of it. [34] The Applicant contends that had he known charges were still possible, he would have sought an adjournment of the CMTOproceedings to a date after those charges were complete. He would have maintained his right to remain silent, as he had done whenpolice approached him in 2017 seeking a statement.

He relied on police assurances in making the decision to address the CMTOcomplaint immediately. [35] The unfairness comes from both the Crown and the Complainant now possessing his responding materials. The Applicant hasgiven a comprehensive account of what he said happened in his interactions with the Complainant. He has provided a statement fromL.C. that supports his claim that nothing inappropriate took place. He has also provided a letter from Mifflin Chiropractic that directlyaddresses a claim apparently made by the Complainant to the CMTO.

All of this compromises his ability to make full answer anddefence as in the usual course none of this would have been disclosed to the Crown in advance of trial. The Crown and the Complainantnow have detailed information on his version of events and where he says the Complainant is incorrect or untruthful. The Complainantwill have had years to digest the materials and tailor her evidence to answer his claims. This gives the state a significant, and unfair,advantage. [36] The Crown seems to recognize the potential for unfairness.

It is suggested that the remedy could be that it not rely on any of theinformation provided by the Applicant to the CMTO. It has agreed not to lead any evidence he provided, and should he elect to testify,will not seek to use it in cross-examination. By everyone collectively ignoring the CMTO file, any possible unfairness arising from itcan be eliminated. [37] Regarding the Complainant having received the CMTO materials, the Crown argues she can be cross-examined on that point. She can be asked if she’s reviewed them, and when.

If she says something that was not in her statement to police but that seems toanswer something brought up in the materials, she can be challenged on it. [38] The Applicant counters that not relying on the materials is not a sufficient remedy. Counsel draws an analogy to police beating asuspect prior to administering an Intoxilyzer test. If the Crown simply agreed not to rely on the test, the underlying breach of thesuspect’s rights would still be present and unaddressed. While no one is equating the present situation with a physical beating, counselcontends the comparison is apt.

Pre-Charge Delay [39] The police decision not to charge the Applicant was made sometime in November 2017. The opposite decision was made inNovember 2021, four years later. It was agreed by the Crown that nothing new was discovered regarding the Complainant’s allegationsin the interim. The Crown submitted that the other complainants coming forward was itself a significant change in circumstances butacknowledged that nothing directly referable to the Complainant or her allegations changed in the intervening four years. [40] Pre-charge delay, standing alone, will not usually be enough to show an abuse of process.

An applicant will have to show actualprejudice to his ability to make full answer and defence arising from the delay in charging. In the present case, the Applicant argues thedelay in charging led him to participate in the CMTO investigation to his detriment. [41] Pre-charge delay as a basis for a s. 7 breach is not easily shown. Justice Hoegg, whose dissent in R. v. Hunt 2016 NLCA 61, [2016] N.J. No. 372 (C.A.) was adopted by the Supreme Court of Canada 2017 SCC 25 , [2017] S.C.J. No. 25, statedthe following: The Supreme Court considered pre-charge delay in relation to

section 7 Charter rights in R. v. L.(W.K.), (SCC), [1991]1 S.C.R. 1091. In ruling it was not open to a trial judge to stay proceedings based on lengthy pre-charge delay on the face of anindictment, Stevenson J. stated: "the fairness of a trial is not automatically undermined by even a lengthy pre-charge delay which mayactually operate to the advantage of an accused" (page 1100). Justice Stevenson went on to endorse Lamer J.'s reasoning in Mills whichwas that it is the effect of delay, not its length, that matters to the fairness of a trial. The Ontario Court of Appeal applied this ruling in R.v.

Cunningham, [1992] O.J. No. 2754, which held that the mere possibility of prejudice is insufficient to ground a finding that delay bythe authorities prejudiced an accused's right to make full answer and defence or constituted abuse of process. [42] Possible prejudice will not establish a breach, nor will an objectively lengthy delay on its face. An applicant must show hisability to make full answer and defence has been compromised as a result of the delay. I pause to note the statement of Justice Hennessyat paragraph 14 of R. v.

Brideau 2021 ONSC 189: “The applicant must establish on a balance of probability actual prejudice to their fairtrial rights, of such magnitude that the accused is unable to put forward a defence.” I take Her Honour to mean that an applicant must beunable to put forward a particular defence, not any defence. Requiring that an applicant’s ability to defend himself be completelyfrustrated would be setting the bar too high.

[43] If the length of the delay is in itself not sufficient to show prejudice, the Applicant must have to point to events that took placeduring the delay to substantiate his claim. The event he relies on is the CMTO investigation. [44] Many of the cases on pre-charge delay involve lengthy police investigations. In Hunt, for example, the original police complaintwas made in 2002 and charges were not laid until ten years later in a complicated fraud and insolvency case. It is agreed between theparties that the case at bar does not involve a lengthy investigation.

The Crown does not argue that the Applicant seeks to have mesupervise the efficiency of a police investigation or determine if they proceeded with sufficient alacrity. The crux of the Applicant’sargument is that the delay in charging him has altered the landscape irrevocably by leading him to participate in the CMTO investigation. [45] It is clear that in the present case, pre-charge delay does not stand on its own as a path to an abuse of process. It is intertwinedwith the Applicant’s claim of unfairness at being told no charge would be laid only to have that very thing happen four years later.

Analysis [46] As stated by Justice L’Heureux-Dubé in O’Connor, there are two categories of conduct that can lead to an abuse of process. These categories were summarized by Justice Moldaver in R. v.

Babos 2014 SCC 16 , [2014] 1 S.C.R. 309 at paragraph 31: These cases generally fall into two categories: (1) where state conduct compromises the fairness of an accused's trial (the "main"category); and (2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the"residual" category) (O'Connor, at para. 73). [47] The residual category does not directly address trial fairness but does include notions of fairness related to the overallproceeding.

As Justice L’Heureux-Dubé stated in O’Connor, it relates to a prosecution that can “connote unfairness or vexatiousness ofsuch a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process.” [48] I see nothing in the authorities that suggests an abuse claim must be either the main category or the residual category. A claim ofabuse of process can encompass both. [49] The Young decision is factually similar to the case at bar. There, the Defendant was investigated regarding an affidavit he sworerelated to the transfer of property in 1976.

The purchaser of the property brought the affidavit to the attention of the Ministry ofRevenue, as well as the local bar association and the Law Society of Upper Canada. This led to correspondence between the Defendantand the Ministry where a disagreement on a provision of the Land Speculation Tax Act arose. This could have led to a charge under thatAct of making a false affidavit. Rather than charge the Defendant, the Ministry advised in 1977 that it would commence a reassessmentof the property in question.

For their part, the Law Society and bar association never took any action. [50] That was the end of the matter until 1982, when the situation was brought to the attention of the Ontario Provincial Police by acitizens’ committee that claimed mismanagement by a local government official. Among a large pile of documents related to that casewas the Defendant’s affidavit. This led to a police investigation and eventually to the Defendant being charged with fraud and making afalse affidavit.

It was agreed that no new evidence was uncovered in the police investigation that was not in the hands of the Ministry ofRevenue five years earlier. [51] The Defendant applied for a stay of proceedings under s. 11(b). That stay was granted by the trial judge. On appeal, JusticeDubin found that while s. 11(

b) was not the proper

section for dealing with issue, s. 7 was. Justice Dubin set out the facts as follows:

(1) An investigation was commenced by the Ministry of Revenue in 1976,

(2) That investigation took several months and concluded in 1977,

(3) The Ministry elected not to lay a charge related to the Defendant’s affidavit, but by letter dated 12 October 1977 told him theywould instead be undertaking a reassessment of the subject property,

(4) In January 1982, the affidavit came to the attention of the OPP, who commenced a new investigation,

(5) Despite interviewing the original parties, no new evidence was discovered, and

(6) In April 1983, the Defendant was charged with two criminal offences. [52] In affirming the stay of proceedings granted by the trial judge, Justice Dubin relied on the unfairness of resurrecting a matter thathad long since been completed. On the issue of prejudice, His Honour stated: The prejudice is not confined to the impairment of the ability to make full answer and defence, although such impairment is claimed. Theprejudice asserted goes beyond that.

His life has once again been disrupted, his reputation in the community in which he lives againdamaged, and his career put in jeopardy with respect to a matter which arose in 1976 and which in 1977 had already been resolved bythe Executive, so far as he was personally concerned, in his favour. [53] Finally, His Honour concluded: I think this is a case where it is appropriate for the Court, by the control of its process, to prevent such unfairness. To subject Mr.

Youngto a trial now on charges of fraud and perjury would put his liberty at risk in a manner contrary to those fundamental principles ofjustice which are the hallmark of our criminal justice system and now entrenched in s. 7 of the Charter. [54] The similarities between the Defendant and the Applicant are clear. Each was investigated for alleged misconduct by the state. Each emerged from those investigations with the state deciding not to pursue charges. Years later, each saw the opposite decision takendespite no new evidence being uncovered.

[55] Justice Dubin also noted that the Defendant was facing increased jeopardy as a result of the delay in charging him. Thelimitation period under the Land Speculation Tax Act had passed, which meant the Defendant could only be charged under the moreserious Criminal Code. In the Applicant’s case, the passage of time now requires the Crown to proceed by indictment against him, thusopening him up to a more severe potential punishment. [56] The most notable difference between the Defendant and the Applicant is that there is no evidence the Defendant relied on theMinistry’s decision to his detriment.

That is a factor present in the Applicant’s case that strengthens his claim of an abuse.

A Stay of Proceedings [57] Whether a stay of proceedings should be granted depends on the application of a test set out in by Justice Moldaver at paragraph32 of Babos: The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of threerequirements: (1)There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that "will be manifested, perpetuatedor aggravated through the conduct of the trial, or by its outcome" (Regan, at para. 54); (2)There must be no alternative remedy capable of redressing the prejudice; and (3)Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interestsin favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interest thatsociety has in having a final decision on the merits" (ibid., at para. 57). [58] A stay of proceedings is the most drastic remedy for an abuse of process, but it is not the only possible remedy (see: R. v.

Regan2002 SCC 12 , [2002] 1 S.C.R. 297). Unlike, for example, a breach of s. 11(b), remedies short of a stay may be appropriate. For a stay to be granted following a finding of abuse of process, the facts must rise to the level of being the clearest of cases (see:O’Connor at paragraph 68). [59] I now consider the arguments of the Applicant related to the count in question. [60] His argument is twofold: one, after being told he would not be charged, he participated in the CMTO proceeding and provideddetailed information to investigators. He would not have done that had he known a charge was coming.

Two, the police effectivelygoing back on their word despite no new evidence offends the principles of fair play and decency. [61] In my view, there is a real cause for concern on the Applicant’s part. His response to the CMTO complaint is in the hands of theCrown. This is a problem, but perhaps not an insurmountable one. The Crown has committed not to use the CMTO materials, neither aspart of its case nor in cross-examination should the Applicant choose to testify. I have no trouble taking the Crown at its word that itwould not use the CMTO materials inappropriately.

Certainly, if it did, the Applicant would be within his rights to renew thisapplication with a bolstered argument of actual prejudice. [62] The larger problem is that the CMTO gave his response to the Complainant. In argument, I brought up with the Crown the factthat when meeting with complainants, the Crown does not provide them with statements from the accused person. The reason for this isabundantly clear: they do not want the accused’s version of events to influence the complainant’s version. It’s the same reason weroutinely see orders excluding witnesses from the courtroom during trials.

Justice requires that each witness give their account of eventsindependent of influence by other witnesses. If a witness is permitted to see or hear what someone else has to say, it will be impossible todetermine if their statement or testimony is truly their own, or if it is the product of incorporating and responding to someone else’s. [63] The Crown argues that full cross-examination of the Complainant can address this issue. I see that as a partial answer. It mayallow defence counsel to uncover obvious cases of the Complainant reacting to the Applicant’s account, but that’s not the only concern.

There is no requirement of reciprocal disclosure in the criminal law. Indeed, there is no requirement for disclosure by either party ofcase theory or anticipated strategy. In the present case, however, the Complainant now knows exactly what the Applicant is likely to sayif he testifies. She knows his counter-arguments to her allegations. This has infringed on his ability to make full answer and defence inthe manner required by law. Disclosure of the CMTO materials has forced him to show his cards while the hand is still being played.

This creates a significant, overarching unfairness that is only partly solved by cross-examination. [64] The second aspect of the Applicant’s argument is also persuasive. When a citizen is told by the state that they will not becharged with an offence arising from alleged misconduct, the citizen has a right to rely on that assurance. There is a strong societalinterest in seeing people held to account for criminal behaviour, but there is also a strong societal interest in seeing law enforcement treatpeople fairly.

I don’t mean to suggest that the police decision not to charge the Applicant in November 2017 was tantamount to anenforceable undertaking, but it was still a clear statement by persons in authority that he would not be charged. In my view, that decisionshould only be reversed in exceptional circumstances. There are no such circumstances present in this case. [65] The Crown argues that the emergence of other complainants alleging similar misconduct imbues the Complainant’s accusationwith new life. Respectfully, I don’t see how it does.

When the decision was made not to charge, the police determined her complaint tobe unfounded. They spoke with another RMT who validated the alleged conduct of the Applicant. Other unrelated complainants makingsimilar allegations is irrelevant to the substance of the Complainant’s complaint. It still bears the same frailties it did in 2017. This is nota case where new evidence has come to light, as courts have seen with advances in DNA evidence or lost witnesses being located. Nothing changed in the Complainant’s allegations from 2017 to 2021. There was no further investigation.

It’s worth noting that even asother complainants came forward, the police took no action to reopen the Complainant’s file until she came forward again. There is noindication they would have ever revisited her case had she not reminded them of it. [66] Applying the test in Babos, I find there has been a significant impairment of the Applicant’s right to a fair trial on the

Complainant’s count. The Crown and Complainant now possess his detailed response to the allegations. Further, the police resiled fromtheir decision not to charge the Applicant despite no new evidence coming to light. The Applicant reasonably thought the criminalmatter was behind him, until four years later when it returned. Separate from the issue of the CMTO disclosure, this reversal by the stateinvites comparison with the unfairness found by Justice Dubin in Young. Citizens have a right to expect the state to keep its word.

When it doesn’t, without good reason, faith in our institutions is diminished. [67] I find the Applicant has shown an abuse of process in the laying of count 11 in the information, on both categories set out inO’Connor and Babos. [68] The Crown has suggested remedies short of a stay of the count. It has agreed not to rely on the CMTO materials and argued thatfull cross-examination of the Complainant will address any issues related to her receipt of those materials.

Further, the Crown submitsthe emergence of other complainants justified the decision to charge the Applicant. [69] As I said, I accept the Crown’s agreement not to make use of the CMTO materials. The issue is the Complainant receivingthem. I do not see full cross-examination as a sufficient cure for the potential prejudice that arises from her having his response well inadvance of trial. Beyond that, the provision of these materials to the Complainant violates the Applicant’s right to silence. It would beone thing if we were only discussing the CMTO investigation, but this has now evolved into a criminal charge.

No one can force acriminal defendant to give their side of the story, but that is exactly what has happened here. It’s a breach of s. 7, and it renders the trialof this count unfair. [70] I see no other remedy that could remove the unfairness. The Crown not relying on the materials is only a partial solution. Thereis no way to eliminate the unfairness caused by charging the Applicant after he gave his response to the CMTO. Continuing theprosecution of count 11 would only exacerbate the unfairness that has manifested to this point.

Only a stay would answer the issue. [71] Even though I have found pursuant to the second stage of the Babos test that a stay is the only appropriate remedy, I must stillconsider the third stage as the abuse in this case involves the residual category. This is mandated in paragraph 41 of Babos andconfirmed in R. v. Simonelli 2021 ONSC 354 , [2021] O.J.

No. 190 (S.C.J.). [72] At paragraph 110 of Simonelli, Justice Harris stated: To paraphrase on the critical issue of balancing, the question is whether the price of a stay on these very serious charges outweighs thegain to the administration of justice and the public: Zarinchang, para. 60; Babos, at para. 43. It is only where the "affront to fair playand decency is disproportionate to the societal interest in the effective prosecution of criminal cases" that a stay of proceedings will bewarranted: R. v.

Conway, (SCC), [1989] 1 S.C.R. 1659 (S.C.C.) at p. 1667. [73] The following factors weigh against a stay of proceedings:

(1) The charge is serious,

(2) The allegation involves a potential abuse of a position of trust against a vulnerable victim,

(3) Society has an interest in encouraging the reporting of sexual offences,

(4) Society always has an interest in the adjudication of criminal charges on their merits. [74] The following factors weigh in favour of a stay:

(1) State conduct has resulted in the violation of a Charter-protected right,

(2) The Applicant has suffered actual prejudice as a result of that violation,

(3) Society has a significant interest in the state dealing fairly with all citizens, especially those accused of potential criminalwrongdoing,

(4) The prejudice suffered cannot be sufficiently relieved by any other remedy. [75] Balancing all the above factors, and recognizing that Charter rights must be protected, I find that a stay of proceedings is the onlyfit remedy available. [76] The Applicant’s application will be granted. Count 11 will be stayed. Released: 16 January 2024 Signed: Justice S. G. Pratt