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PROCEDURE - Trials - Stay of proceedings

Friday, May 21, 2021 @ 9:08 AM  

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Appeal by the Crown from a stay of proceedings. The accused, Ke, was charged with sexual assault. The Crown proceeded by way of indictment. The accused elected a trial by judge alone. The complainant completed her examination in-chief. The proceedings were adjourned to explore continuation dates and the complainant was instructed to return for cross-examination. She was served with a subpoena for the continuation date. When trial resumed, the complainant failed to attend for cross-examination, as she was in China for medical reasons. The complainant’s prior e-mail to the Crown notifying of her unavailability was not discovered until the continuation date, as it was diverted to a junk folder. The trial judge asked for potential remedies. The Crown sought a brief adjournment with issuance of a material witness warrant. The defence sought a stay of proceedings. The trial judge immediately announced a stay of proceedings. The Crown appealed.

HELD: Appeal allowed. The trial judge’s refusal of the Crown’s request for an adjournment was legally flawed and patently unreasonable. The request was based on the absence of a material witness who had already completed her testimony in-chief with respect to allegations of non-consensual sexual intercourse. The witness advised of the scheduling conflict 2.5 months prior to the continuation date. There was no basis to suggest the witness was permanently unavailable. A brief adjournment would have enabled the Crown to confirm the complainant’s position. The trial judge’s suggestion that the accused was suffering through torturous bail conditions and that the complainant’s medical explanation was an excuse was unreasonable and unsupported by the record. In addition, the circumstances did not support the exceptional remedy of a stay of proceedings. There was no constitutional infringement or state conduct giving rise to an abuse of process. The stay was set aside, and a new trial was ordered.

R. v. Ke, [2021] O.J. No. 1431, Ontario Court of Appeal, J.M. Fairburn A.C.J.O., D. Watt and G. Huscroft JJ.A., March 22, 2021. Digest No. TLD-May172021009