ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
— AND —
MOHAMED ALI NOOR
Applicant
Before Justice Patrice F. Band
Ruling on Charter Application
Ms. A. Leggett counsel for the Crown
Mr. N. Stanford counsel for Mr. Noor
I. Introduction
1As a result of events that took place in the early morning hours of September 28, 2019, Mr. Noor was charged with impaired operation of a conveyance [s. 320.14(1)(a)] and refusing to provide a breath sample into an approved instrument [s. 320.15(1)]. From an investigative standpoint, the case was not complex.
2At trial, Mr. Noor sought the exclusion of the evidence of his refusal to provide breath samples due to alleged breaches of his s. 10(b) rights. He also sought a stay of proceedings because he was not taken before a justice within 24 hours of his arrest, contrary to s. 503 of the Criminal Code and ss. 7, 9 and 11(e) of the Charter of Rights and Freedoms. His application for a stay was premised on the “residual” category of cases discussed in R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309. The Crown opposed both applications, which were presented in “blended” form with the Crown’s case.
3I have found that the failure to take Mr. Noor before a justice in accordance with s. 503 violated his ss. 7 and 9 rights. Further, I have found that the way the events unfolded thereafter also violated his s. 11(e) rights. In my view, the entire sequence of events was the result of a combination of systemic failures and structural barriers which are apt to be perpetuated and from which the Court must dissociate itself. Alternate remedies, such as a judicial declaration and reduction in sentence, would not sufficiently do so. As a result, I have decided to order a stay of proceedings, fully aware that it is a remedy that ought to be ordered only rarely and in the clearest of cases.
4Considering my decision, I find it unnecessary to resolve Mr. Noor’s s. 10(b) application.
II. The Relevant Facts
5The relevant events of this case unfolded over a period of three days, beginning with Mr. Noor’s arrest just after 5:00 a.m. on Saturday, September 28, and ending at approximately 3:00 p.m. on Monday, September 30, when he was released on a surety bail with the Crown’s consent, without the surety having been required to testify. By that time, Mr. Noor had been in custody for 58 hours.
6In this case, like many others, Mr. Noor was first taken to TSV for breath testing and then to 52 Division for further processing because he was being held for a reverse onus show cause hearing. He had outstanding and related charges from earlier in the year.
7The evidence relating to this application included testimony from the two arresting officers, the Qualified Breath Technician, a Toronto Police Special Constable, Mr. Noor, an affidavit of Abdi Farah Liban (Mr. Noor’s surety) and some agreed facts. With the exception of Mr. Noor’s evidence about the conditions of his detention, the parties did not dispute the quality of the evidence bearing on this application and took it at face value. Mr. Noor testified that he had not slept or received an appropriate amount of food during his time in police custody. However, the objective, videotaped evidence contradicted him on both counts and I reject his evidence on this point.
8It is useful to discuss the evidence in chronological order, by date.
Events of Saturday, September 28, 2019
9Mr. Noor was arrested at 5:08 a.m., after he was found in the driver’s seat of his car and showing signs of impairment by alcohol. By 5:45 a.m., he had been taken to TSV for breath testing. By 6:55 a.m., police had decided to hold him for show cause. Based on the Toronto Police Service’s procedures, this meant that he had to be taken to 52 Division for further processing. This also meant that he had to be taken to Old City Hall in time to beat the “cut-off” which, on weekends (“WASH Court”), is between 12:30 and 1:00 p.m. Mr. Noor was told he would be charged with refusing to provide a breath sample at 7:56 a.m. He was taken to 52 Division at 8:32 a.m., and arrived at 8:46 a.m. By 9:16 a.m., he had been lodged in a cell. According to Special Constable Tyler Nixon, he was placed there “to sober up” and to be taken to court “later that afternoon.” That decision was made by an officer in charge. Police did not leave 52 Division for Old City Hall with Mr. Noor until 12:57 p.m.1 They arrived at 1:00 p.m.
10Special Constable Nixon explained why. When an accused person is being held for show cause, the practice is to have them fingerprinted in accordance with the Identification of Criminals Act before they are taken to court. This requires paperwork to be generated. That paperwork cannot be generated until the case has been completed and uploaded into the police “versadex” system by the investigators. Once that is done, the individual’s prints would be taken and a wagon would be called for.
11Mr. Noor’s case was completed and he was fingerprinted between 12:21 and 12:35 p.m. In other words, it took over three hours for this simple case to be completed. SPC Nixon explained that when a person is brought to 52 Division around 9:00 a.m., it is not unusual that they would not be ready to go to court until sometime between noon and 1:00 p.m. By then, they would have missed the “morning wagon” and another wagon would have to be called for. The time it takes to complete a case depends on a number of factors, including the severity of the charges and the number of persons in cells. The system did not change between September 2019 and the time of trial.
12Rather than wait for a wagon, SPC Nixon took it upon himself to drive Mr. Noor to Old City Hall in a police car. He knew the cut-off time but thought that in some instances, persons might be accepted. That is why he tried in this case. However, he was told by a court officer at Old City Hall that Mr. Noor would not be accepted. SPC Nixon was neither surprised nor not surprised; he simply accepted it and returned Mr. Noor to 52 Division, where he would stay until the following day.
13They arrived at 52 Division at 1:15 p.m. and SPC Nixon’s shift ended at 1:30 p.m. By this time, it was clear that in the best-case scenario, Mr. Noor would not see a justice until the next morning at 10:00 a.m., 28 hours after his arrest. Unfortunately, that is not how things unfolded.
Events of Sunday, September 29, 2019
14As it would happen, SPC Nixon was working on Sunday. His shift began at 5:30 a.m., over 24 hours after Mr. Noor’s arrest. While he did not deal with Mr. Noor that day, he testified that he believed that Mr. Noor had been delivered to Old City Hall on the “morning wagon”, closer to 9:00 a.m. In fact, the parties agreed that, for reasons that were not explained, Mr. Noor was not sent to Old City Hall until shortly after 11:00 a.m., 29 hours after his arrest.
15When Mr. Noor was brought to the courtroom, he learned that a consent release would be available if he had a surety. At that time, he said that he did not have one. Duty counsel asked that his warrant of remand be held so that he could speak to Bail Program, but at the same time suggested a return date of Monday, September 30. Later, Duty Counsel advised the Court that Bail Program could not assist as Mr. Noor had potential sureties. He was not brought back to the courtroom to address the matter, and no one advised the Court that he had been arrested over 33 hours prior.
16Mr. Noor testified that on Sunday, September 29, he was not brought to the courtroom until approximately 3:00 p.m., some 33 hours after his arrest, and that he had not been seen by Duty Counsel until that time. The Crown did not challenge those assertions. They appear to be reflected in the transcript insofar as it was only then that Duty Counsel made a referral to Bail Program and suggested a return date at the same time.
Events of Monday, September 30, 2019
17By 5:00 a.m. on September 30, Mr. Noor had been in custody for 48 hours. He was delivered from the Toronto South Detention Centre to the courthouse early and was ordered released with a surety at 3:00 p.m. on consent. This was 58 hours after his arrest.
Additional Evidence
18By way of affidavit, Mr. Liban (Mr. Noor’s surety) affirmed that he had been willing and available to attend court to bail Mr. Noor out within an hour’s notice on Saturday, September 28 and Sunday September 29. The Crown did not challenge this evidence.
III. The Issues/Positions of the Parties
19Mr. Noor argues that his s. 7 and 9 rights were violated because he was not taken before a justice within 24 hours as required by s. 503. He further argues that those violations were exacerbated by the fact that he was brought to Old City Hall late on September 29, and not taken before a justice until approximately 3:00 p.m., which led to an adjournment to September 30. Had he been brought to Old City Hall on time, he argues, it is reasonable to infer that he would have learned the Crown’s position and been in a position to secure Mr. Liban’s attendance that day. This, he argues, makes out a breach of his right not to be denied reasonable bail without just cause, contrary to s. 11(e) of the Charter.
20He argues that his is a clear case for a stay of proceedings because the breaches he suffered, which were the result of systemic and ongoing failures on the part of the state, risk undermining the integrity of the judicial process in accordance with R. v. Reilly, 2020 SCC 27. The systemic failures are evinced by the fact that when a person is brought to 52 Division after 9:00 a.m., there is a likelihood that they will not arrive at Old City Hall before the cut-off. This, he argues, leads to the logical inference that breaches of s. 503 will be common. He also argues that the evidence in this case demonstrates a culture of complacency regarding the strictures of s. 503. This is reflected in the police failure to act with dispatch on September 28 and 29, as well as the apparent lack of communication between justice participants. Because of the minimum penalties set out in the Criminal Code for impaired driving offences, what little room there may be for a reduction in sentence would not adequately reflect the prejudice to the integrity of the justice system.
21While the Crown concedes that Mr. Noor’s ss. 7 and 9 rights were violated by the breach of s. 503, she disputes the s. 11(e) claim. She argues that if what took place on Sunday had taken place on Saturday, the result would have been the same. Mr. Noor’s matter would have been adjourned to Monday, as is the practice in WASH court. As such, the failure to take Mr. Noor before a justice on Saturday did not result in the denial of reasonable bail without just cause. She also argues, in the alternative, that there is a gap in the evidence concerning who was accountable for what took place on Sunday between 11:00 a.m. and 3:00 p.m. During that time, Duty Counsel would (or should) have been involved with Mr. Noor. They are not state actors bound by the Charter and Mr. Noor did not argue ineffective assistance of counsel. As such, the clock should stop at the 29-hour mark and Mr. Noor’s right to reasonable bail was not violated. Crown counsel also reminds the Court that s. 503 does not guarantee the right to a bail hearing within 24 hours. As such, a violation of s. 503 does not necessarily entail a violation of s. 11(e).
22With respect to the record, the Crown argues that the evidence is insufficient to make out a systemic failure. SPC Nixon’s evidence does not support an inference that arrestees arriving at 52 Division after 9:00 a.m. commonly miss the WASH court cut-off. If that were so, the courts would be flooded with applications like this one.
23As for remedy, the Crown argues that a judicial declaration and sentence reduction are sufficient. In her view, the aggravating factors in this case – the fact that Mr. Noor was on a release for similar offences and had been abusive toward the officers – would permit her to seek a higher fine. This, in turn, would make room for a reduction in penalty.
24Mr. Noor did not argue that the Crown’s position on release was unreasonable. Nor did he take real issue with the police’s initial decision to hold him for bail. However, he argued that the police ought to have reevaluated when it became clear that Mr. Noor’s s. 503 rights would be violated. The Crown disagrees, pointing to Mr. Noor’s outstanding charges and the public safety considerations found in s. 498(1.1).2
25The issues in this application boil down to this: whether Mr. Noor’s s. 11(e) rights were infringed, the extent to which his rights were infringed and why, and what remedy is sufficient to reflect the harm done to the integrity of the justice system.
IV. Applicable Law
26Section 503 of the Criminal Code reads:
(1) Subject to the other provisions of this section, a peace officer who arrests a person with or without warrant and who has not released the person under any other provision under this Part shall, in accordance with the following paragraphs, cause the person to be taken before a justice to be dealt with according to law:
(a) if a justice is available within a period of 24 hours after the person has been arrested by the peace officer, the person shall be taken before a justice without unreasonable delay and in any event within that period; and
(b) if a justice is not available within a period of 24 hours after the person has been arrested by the peace officer, the person shall be taken before a justice as soon as possible. (Emphasis added)
27The test for granting a stay of proceedings that is applicable to breaches of s. 503 is found in Babos, supra. At para. 31, the Court explained that only the clearest of cases warrant stays of proceedings. Such cases “generally fall into two categories”:
where state conduct compromises the fairness of an accused's trial (the "main" category); and
where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the "residual" category).
28The test comprises three steps:
There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that "will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome;"
There must be no alternative remedy capable of redressing the prejudice; and
Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interest that society has in having a final decision on the merits" (para. 32)
29When, as here, the residual category is invoked, the Court explained at paras. 35-41 that
the question is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution of offences. At times, state conduct will be so troublesome that having a trial - even a fair one - will leave the impression that the justice system condones conduct that offends society's sense of fair play and decency. This harms the integrity of the justice system. In these kinds of cases, the first stage of the test is met.
For a stay of proceedings to be appropriate in a case falling into the residual category, it must appear that the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society's sense of justice. Ordinarily, the latter condition will not be met unless the former is as well - society will not take umbrage at the carrying forward of a prosecution unless it is likely that some form of misconduct will continue.
… in a residual category case, regardless of the type of conduct complained of, the question to be answered at the first stage of the test is the same: whether proceeding in light of the impugned conduct would do further harm to the integrity of the justice system… The court must still consider whether proceeding would lend judicial condonation to the impugned conduct.
At the second stage of the test, the question is whether any other remedy short of a stay is capable of redressing the prejudice…. Where the residual category is invoked, however, and the prejudice complained of is prejudice to the integrity of the justice system, remedies must be directed towards that harm. It must be remembered that for those cases which fall solely within the residual category, the goal is not to provide redress to an accused for a wrong 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 proceedings will adequately dissociate the justice system from the impugned state conduct going forward.
Finally, the balancing of interests that occurs at the third stage of the test takes on added significance when the residual category is invoked. This Court has stated that the balancing need only be undertaken where there is still uncertainty as to whether a stay is appropriate after the first two parts of the test have been completed ….
However, when the residual category is invoked, the balancing stage takes on added importance. Where prejudice to the integrity of the justice system is alleged, the court is asked to decide which of two options better protects the integrity of the system: staying the proceedings, or having a trial despite the impugned conduct. This inquiry necessarily demands balancing. The court must consider such things as the nature and seriousness of the impugned conduct, whether the conduct is isolated or reflects a systemic and ongoing problem, the circumstances of the accused, the charges he or she faces, and the interests of society in having the charges disposed of on the merits. Clearly, the more egregious the state conduct, the greater the need for the court to dissociate itself from it. When the conduct in question shocks the community's conscience and/or offends its sense of fair play and decency, it becomes less likely that society's interest in a full trial on the merits will prevail in the balancing process. But in residual category cases, balance must always be considered.
30Section 503 is not new, and it or its predecessor have been discussed by the higher courts for decades: R. v. Simpson, 1995 CanLII 120 (SCC), [1995] 1 S.C.R. 449; R. v. Koszulap (1974), 1974 CanLII 1461 (ON CA), 20 C.C.C. (2d) 193 (Ont. C.A.). In the last decade, several Superior Court judges in this jurisdiction have given it careful attention. In R. v. Mendez, 2014 ONSC 498, Justice Forestell reiterated its twin purposes: “judicial review of detention and the transfer of control of accused from the police to the courts” (para. 105). Citing R. v. Brown, [2007] O.J. No. 2830 (S.C.), at para. 9, aff’d 2009 ONCA 633, Her Honour explained that “[t]here can be no debate that any person who is arrested is entitled to prompt and early determination as to the legitimacy of their detention” (para. 106). It is the duty of arresting officers to ensure that persons are not detained any longer than is absolutely necessary (para. 108).
31Citing R. v. Precourt (1976), 1976 CanLII 692 (ON CA), 39 C.C.C. (2d) 311 (Ont. C.A.), Justice Forestell explained the second purpose: once the investigative process incidental to arrest has been completed and a decision has been made to invoke the criminal justice system, the accused person “is thereafter under the jurisdiction of the court” (para. 109). The section is of primordial importance. Her Honour cited R. v. Simpson (C.A.) at para. 36:
Section 503 may be one of the most important procedural provisions of the Criminal Code. The liberty of the subject is dominant. A person not convicted of an offence should never be held in custody except in accordance with constitutionally valid provisions of the Criminal Code or other legislation (para. 111).
As such, “it is the duty of the courts, at all levels, to be vigilant in making sure that these safeguards are not overlooked or ignored” (Koszulap, supra, at para. 32).
32In Mendez, the accused was charged with murder. He was arrested just after midnight on a Sunday. At the time, the cut-off for weekend bails in Toronto was 2:00 p.m. The investigating officers knew that but decided to pursue their investigation and interview the accused instead. As a result, Mr. Mendez was not taken before a justice until the following day at 10:00 a.m. At trial, he sought the exclusion of the statement he gave to police during his initial period of detention. Even though the accused had been denied bail, Justice Forestell found that the s. 9 violation was extremely serious. She also found that it was exacerbated by the fact that it was the result of a systemic problem that had been an issue for approximately a decade. The police conduct was part of a pattern of systemic neglect of the s. 9 rights of detained persons. The “window of opportunity for the police to bring an accused before a Justice in Toronto on a weekend” – 10:00 a.m. to 2:00 p.m. at that time – was “a very narrow one” (para. 115). The officers knew this, and their decision to investigate rather than bring the accused to court was unreasonable (ibid). As a result, Justice Forestell excluded Mr. Mendez’s statement to police pursuant to s. 24(2).
33The issue arose again in R. v. Al-Zaharna, 2021 ONSC 3295. Mr. Al-Zaharna was charged with sexual assault. He was arrested on a Saturday in December 2018. Police chose to investigate the case and interview Mr. Al-Zaharna rather than take him to court as required. At that time, the cut-off for WASH court was 12:30 p.m. Aware of this, they nonetheless chose to interview him, starting at 2:35 p.m. He was taken before a justice the following day, at 10:00 a.m., 30 hours after his arrest. At trial, he sought the exclusion of the statement he gave to police during his initial detention. A detective in that case testified that since 2013 or 2014, when the cut-off time changed to 12:30 p.m., “there would have been many instances when the 24-limit imposed by s. 503 was breached, although he could not say exactly how often this occurs” (para. 26). Justice Garton found that the police conduct was part of a pattern of systemic neglect of the rights of accused persons. As she put it, the problem identified by Forestell J. “which she found had been going on for a decade is still going on” (para. 51). In fact, the window of opportunity provided by WASH court in 2018 was even narrower (para. 51). Garton J. identified the limited availability of Justices of the Peace on weekends as a systemic problem which made the breach extremely serious. The police did not explain why they did not try to bring the accused to court after the interview. A detective had simply told Mr. Al-Zaharna that he had not completed the required paperwork in time (para. 57). Noting also that Mr. Al-Zaharna would likely have been granted bail if the police had complied with s. 503, Justice Garton excluded his statement pursuant to s. 24(2).
34In R. v. Dawson, 2016 ONSC 3461, [2016] O.J. No. 2799 (S.C.), the accused was among six individuals who were arrested in the context of a serious and complex case. Mr. Dawson, who was arrested on a Thursday at 5:00 p.m., was taken to court on the following Saturday, 40.5 hours after his arrest. The complexity of the case, problems with the versadex system and the number of accused led to the police missing the 2:45 p.m. cut-off on Friday. He was ultimately ordered detained. There was no evidence that things would have been different if he had been brought to court on day two rather than day three. While Mew J. found that the accused’s s. 7 and 9 rights had been violated, he was not satisfied that there was evidence of a systemic problem or that there was likely to be a repetition of the rights-violating conduct. In the circumstances, he found that remedies short of a stay were available, including denunciation and a meaningful reduction in sentence.
35In R. v. Carter, 2016 ONSC 2832, the accused was charged with serious drug offences and was ultimately released on a surety bail. He was not brought before a justice until 36 hours after his arrest. It appears that the accused had been allowed to fall through the cracks as a result of being taken from one division to another and a lack of communication between shifts. While O’Marra J. found that the police conduct had been negligent and exacerbated by the fact that the accused had been denied medical attention, it does not appear that he found a systemic problem. His Honour found that remedies other than a stay were available, including a significant sentence reduction (para. 40).
36The Crown urges me to pay particular attention to R. v. Darling, 2020 ONSC 6397 in relation to the evidentiary record before me. Mr. Darling was among a number of persons charged with serious offences in a matter that involved some complexity. He was booked at 8:04 a.m. on a Sunday in October 2018, but was not brought to court until the following day, 27 hours after his arrest. He was denied bail. Justice Nakatsuru found that the police had not engaged in flagrant or deliberate conduct. They had not set out to delay the accused’s appearance before a justice to advance the investigation and did not ignore their obligations. They had not been unacceptably negligent; rather, they had tried to comply with s. 503 but had been unsuccessful. His Honour found no significant prejudice to the integrity of the justice system. In particular, His Honour felt that it would be wrong to make a finding of a systemic problem in the absence of evidence aside from reported cases such as Mendez, supra and R. v. Raios, 2018 ONSC 6867. Mr. Gardner had not established the existence “of some policy, general police approach, or significant structural barrier that has prevented the police from meeting the requirements of s. 503” (para. 87). As such, His Honour was unable to conclude “that such illegal detentions are likely to continue into the future unabated” (ibid). His Honour added “that the cases where s. 9 has been successfully raised in this context are but a small fraction of the accused persons who are arrested and go through the court bail system. Put another way, most get to bail court on time” (para. 88). Having said that, His Honour indicated that “in the absence of such evidence, each case revolves around the particular facts of the detention” (para. 89).
37His Honour found that the delay had been “modestly beyond the 24-hour limit”, and that Mr. Darling’s liberty interest had not been practically affected (para. 90). He also found that remedies other than a stay were sufficient, including denunciation, exclusion of evidence or a sentence reduction. In doing so, he warned that a sentence reduction may be inappropriate to address “prejudice based upon more flagrant or systemic constitutional violations” (para. 99).
38The Crown also referred to R. v. Barton, 2016 ONSC 8003. In that case, Justice Akhtar found no breach where the accused, who had been arrested on a Saturday morning, was not brought to court until the following day. His Honour noted that the police had not acted deliberately to obtain evidence and that the delay had been the result of “an unfortunate confluence of events” that the police immediately rectified by taking the accused to court “the next day, mere hours after the expiry of the 24-hour limit” (para. 38).
39The Crown urged me to use caution with regard to Mendez and Al-Zaharna, supra, to the extent that they involved applications to exclude evidence pursuant to s. 24(2) rather than applications for a stay of proceedings pursuant to s. 24(1).
V. Analysis
40Before turning to my analysis, I wish to comment on Darling, Barton and the Crown’s position regarding Mendez and Al-Zaharna, supra. Even though the conduct in Al-Zaharna pre-dated Justice Nakatsuru’s decision in Darling, His Honour did not have the benefit of Justice Garton’s decision, which was released in 2021. In particular, His Honour did not have access to Garton J.’s recitation of the detective’s evidence indicating that breaches of s. 503 have been common since the change to a 12:30 p.m. cut-off time in WASH court and her finding that a systemic problem identified years earlier was ongoing. That said, I appreciate the concerns that could be occasioned by blind reliance on the evidence presented in a different matter. However, the same concerns may not arise when it comes to prior judicial findings of systemic problems. Higher courts have relied on such findings in many instances: e.g., R. v. Thompson, 2020 ONCA 264 at paras. 92-93; R. v. Jhite, 2021 ONSC 3036, at paras. 91-92. In any event, as I will explain, there is evidence of systemic problems on the record before me.
41As for Justice Nakatsuru’s view that most cases get to bail court on time, and that successful s. 9 applications in this context involve only a small fraction of the accused persons who go through the bail system, that is undoubtedly true. But that does not mean that many persons do not get to bail court on time, that a small fraction does not represent a large number of persons and that many breaches may never see the light of day. The Supreme Court has told us on more than one occasion that bail-related matters are “inherently evasive of judicial review” owing to their temporary nature: see R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250 at para. 17 and R. v. Myers, 2019 SCC 18, [2019] 2 S.C.R. 105 at para. 14. The outcome of a case and an individual’s resources also necessarily play a role here.
42I recognize that I am up against a legal titan, but it is for these reasons that I am somewhat less sanguine about this issue than His Honour appears to be.
43As for Barton, supra, Justice Akhtar’s treatment of the s. 503 issue occupies only one of more than 140 paragraphs in a decision focused on the merits of a s. 8 challenge to a search and an alleged s. 10(b) violation. It does not appear that His Honour had the benefit of lengthy argument concerning s. 503, or reference to authorities such as Mendez, supra. Moreover, in the case before me, the Crown has quite rightly conceded Charter violations. As a result, Barton provides little assistance to me.
44As for the Crown’s argument that Mendez and Al-Zaharna need to be treated with caution because of the remedial provision that was invoked in them (s. 24(2) of the Charter), I disagree. A judicial finding that a systemic problem contributed to a breach of Charter rights is grounded in the record and precedes the question of remedy. The burden of proof does not become more exacting because a stay is on the table. I have not been directed to any authorities to the contrary.
Step 1: Prejudice to the Integrity of the Justice System
45The Crown concedes that Mr. Noor’s s. 7 and 9 rights were violated. Based on her submissions, I surmise that she would stop the clock at 11:00 a.m. on Sunday, September 29, 29 hours after Mr. Noor’s arrest. This would mean that he was arbitrarily detained for at least five hours. This is not, in my view, a matter of mere hours or an otherwise modest delay in the circumstances of this case.
46But I find the Crown’s approach unpersuasive. It is based on her argument that nothing would have been different had Mr. Noor been brought to court on Saturday, as his case would have been adjourned to the following Monday in any event. As a matter of logic and practice, that premise would hold more sway if Mr. Noor had been brought to court on time on Sunday as s. 503 demanded. Before court, Duty Counsel are able to go over new or recent arrests and ensure that accused persons can be brought to the courtroom, where they can be informed of Crown positions and address the Court. Moreover, in light of Mr. Liban’s uncontested affidavit and Mr. Noor’s ultimate consent release (with Mr. Liban as surety), I find that he would likely have been released on Saturday had the police delivered him to court on time.
47As I stated above, for reasons that were not his fault, Mr. Noor was not brought before the justice until 3:00 p.m. What happened at that time also merits comment. Had the presiding justice been told that Mr. Noor had not been taken before a justice for 33 hours, I am sure that they would have made appropriate inquiries about his prospects of meeting the Crown’s position and done their best to address the matter constructively. For instance, a consent bail could have been ordered with a surety to be named later. Instead, his matter was adjourned before he had an opportunity to consult with the Bail Program and seek Duty Counsel’s help in contacting a potential surety. While one would hope that accused persons or Duty Counsel would advise a presiding justice of such a situation, it must be remembered that the Crown is in possession of the documentation produced by the police. There is every reason why police officers and Crowns should also be vigilant in this regard, if s. 503 and the Charter are to live up to their important promises.
48In light of my views of the police conduct in this matter, which I will discuss below, I am concerned that the Crown’s position is a further manifestation of a culture of complacency respecting the requirements of s. 503. Again, surely a justice will wish to make some inquiries as to why an individual who was arrested more than 24 hours prior had not been taken before a justice sooner. If an accused person with no criminal record credibly requires an adjournment of no more than one day to meet a proposed consent release in a simple case, it would be incumbent upon that justice, in my view, to do their best to facilitate such a process, even on a Sunday. None of this could even be contemplated in Mr. Noor’s case, because no one spoke up.
49It is for this reason that I find that Mr. Noor’s right not to be deprived of bail without just cause was denied, contrary to s. 11(e).
50Like Garton J. before me, I find that Mr. Noor has established that the factors at play in this case demonstrate that the systemic problem Justice Forestell identified in Mendez is still going on. In fact, it has been going on for close to 20 years now.
51The problem is manifold. First, as Garton J. found, it is related to the lack of available justices in WASH court where, since 2013 or 2014, the window of opportunity for police to deliver accused persons has become even narrower. Second, completing and uploading cases to the versadex system can take several hours – even simple cases like this one. In cases where accused persons must be moved from one police station to another before they can be taken before a justice, as happens in the case of impaired driving matters that involve TSV and 52 Division, or even in cases involving late morning arrests, there is a likelihood that hours spent on completing cases will cause even scrupulous police officers to miss the cut-off for WASH court. Third, the evidence in this case points to a culture of complacency in the police service regarding s. 503 rights. There is no indication that any officer took steps to speed up the process of case completion or considered paring it down to the bare minimum in order to ensure compliance with s. 503 when it is clear that the cut-off time for WASH court was notorious. Like Nakatsuru J. did in Darling at para. 83, I too question why an accused’s s. 503 rights must take a back seat to police officers’ task of completing their case. I also question why a case must be completed before the fingerprinting process can begin. If the issue is the computer system, then it is time to find some workarounds. I also question why, in urgent cases like Mr. Noor’s, the matter of fingerprinting cannot be left to another day, with a police recommendation that it be a condition of any release, pursuant to s. 515(4)(h).
52This brings me to the evidence of communication problems, both within the police service and between the police and the Court. SPC Nixon is certainly to be commended for taking the initiative and trying to get Mr. Noor to court on September 28. However, no one thought to call the officers at Old City Hall to notify them of the situation in advance. For his part, upon his arrival at the courthouse, SPC Nixon did not inform the officers of Mr. Noor’s predicament or ask why he could not be accepted. Had he done so, one would hope that their response would have been different or, at the very least, more informative. Similarly, it appears that SPC Nixon did nothing to flag Mr. Noor’s matter with an officer in charge upon their return to 52 Division less than 20 minutes later, before wrapping up for the day. What is more, he did nothing the next morning either. This seems to suggest that he has not been trained to do so, or that there is no place for such steps in the culture beyond an officer’s own initiative.
53That culture is also reflected in Mendez and Al-Zaharna, supra. One gets the impression from the evidence in those cases that the police response to the lack of availability of justices on weekends is to let s. 503 rights slide when there is a desire to further the investigation. To be sure, the narrow window created by the cut-off time in WASH court creates difficulties for investigators by curtailing the period they might otherwise have to take additional investigative steps on weekends. But those difficulties do not change the law.
54While I appreciate that the police did not deliberately set out to violate Mr. Noor’s rights or seek to benefit from the delay, the police conduct in this case was unacceptably negligent. Mr. Noor’s rights were ignored on September 28 and again on September 29. Seen in combination with the restrictive WASH court hours, the problem is systemic in nature. The need for cases to be complete before the fingerprinting process can begin, again in combination with the cut-off time for WASH court, also points to a structural problem, as does the fact that it can take several hours for even a simple case to be completed.
55In Mr. Noor’s case, police conduct led directly to him being detained for at least 29 hours after his arrest which, in turn, sparked the chain of events that took place in bail court on September 29. That is a significant breach of his rights. In total, Mr. Noor was arbitrarily detained for at least 29 hours - that is, from 5:00 a.m. on Sunday September 29 to 10:00 a.m. to Monday September 30. That is egregious.
56What happened to Mr. Noor constitutes severe prejudice to the integrity of the justice system, and I am satisfied that it is more likely than not that these problems will be perpetuated through the conduct of this trial to its conclusion. I say this because they have continued despite the clear words of Justice Forestell in 2014 and because it appears that they are both systemic and structural.
Step 2: No Alternative Remedy Capable of Redressing the Prejudice
57A declaration and reduction in sentence are not capable of redressing the prejudice in this case or dissociating the court from it. The strong words of Justice Forestell, an experienced and highly respected Superior Court judge, do not appear to have had any effect. In fact, the cut-off time is even earlier now. I have no confidence that any declaration I might make will have any more impact on the problem or prevent its repetition.
58Even seen in the best light, the arbitrary detention in this case was serious. As I have found it to be, it is egregious. The Criminal Code mandates minimum fines and driving prohibitions in cases like this. The only potential reduction in sentence that would be open to me would be to impose the minimum fine. That presumes that the Crown will have persuaded me that a higher fine is warranted, after consideration of the aggravating and mitigating factors, and Mr. Noor’s ability to pay. Any such reduction cannot be described as significant or meaningful in a case that did not involve any driving, much less an accident.
59While I am sure that this is one of the clearest of cases, and that a stay is the only appropriate remedy, it is prudent to proceed to the balancing stage since this case falls into the residual category.
Step 3: Balancing
60The balancing stage requires me to decide which of two options better protects the integrity of the system: staying the proceedings or having a trial despite the impugned conduct. There are several factors to consider. I have already found that the conduct at issue here was very serious, and that it reflects a systemic and ongoing problem. On the other hand, I must also consider Mr. Noor’s circumstances, the charges he faces and the interests of society in having a trial on the merits.
61I know little of Mr. Noor’s circumstances, except that he was detained from a Saturday to a Monday at the outset. Drinking and driving offences are serious. They lead to property damage, injury and death in our society. They are rightly condemned by the public. That said, they are not all equal. In this case, while there is evidence that Mr. Noor had turned the car on and off, and possibly turned the wheels to the left, there is no evidence that he actually put the car in motion. At the scene, the arresting officer advised him that he was being arrested for impaired care or control. The case was not complex. While the public has an interest in a trial on the merits, that same public also has an interest in the integrity of the justice system. I find that the balance of interests clearly favours a stay.
VI. Conclusion
62The charges against Mr. Noor will be stayed.
63I also wish to thank counsel for their well-prepared and thorough submissions in this case, which were of great assistance to me.
Released: March 29, 2022
Justice Patrice F. Band