The absence of a Markuleski direction regarding counts on which an accused was acquitted at a previous trial does not constitute a 'fundamental defect' justifying a permanent stay of remaining counts. The Crown's prosecutorial discretion as to how charges are laid means that the accused would not have had the benefit of such a direction had the counts been tried separately. A court considering a permanent stay application must undertake the balancing exercise weighing the accused's interests against the public interest in having serious charges determined to finality.
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