Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


In R. v. Ke, 2021 ONCA 179, March 22, 2021, the accused was charged with the offence of sexual assault.  After the direct examination of the complainant was completed, the trial was adjourned.  The complainant did not appear on the date scheduled for completion of her evidence.  She was travelling outside of Canada.  The trial judge refused to grant the Crown an adjournment and entered a stay of proceedings.  The Crown appealed. 

The appeal was allowed and a new trial ordered.  The Court of Appeal held that the trial judge erred in not granting the adjournment and in entering the stay of proceedings (at paragraphs 90 to 92):

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 shouldn’t, 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.

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.

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.