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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 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

DATE: 2023 06 12 COURT FILE No.: 18-450003327 Metro North, Toronto Region

BETWEEN:

HIS MAJESTY THE KING

— AND —

Mohammad Isaq JAHFARI

Before: Justice Cidalia Faria

Heard on: March 27, 2023 Oral Reasons: March 28, 2023 Written Reasons for Ruling on Remedy for Charter ss. 7, 9, and 11(e) Violations released: June 12, 2023

Counsel: Mohsin Yousuf, counsel for the Crown Stefan Rinas, counsel for the accused Mohammad Isaq JAHFARI

Faria J.:

I. OVERVIEW

1 Mohammad Jahfari surrendered himself to 31 Division in Toronto on the morning of August 22, 2018. He was arrested and charged at 8:50 a.m. with sexual interference and sexual assault pursuant to s. 151 and 271 of the Criminal Code. He was not brought to bail court until the following afternoon on August 23, 2018, past the 24-hour mark, contrary to s. 503(1) of the Criminal Code.

2 The Applicant sought a remedy pursuant to s. 24(1) of the Charter for the breach of his ss. 7, 9, and 11(e) rights.

3 Although the trial had been set for some time, in fact, the first trial was adjourned for the Applicant to file the Application, he did not do so until February 23, 2023, and the Crown did not file its response until two days before the trial date of March 27, 2023.

4 To enable the parties to proceed with the scheduled 5-day child witness trial, I provided a brief oral Ruling the day after hearing the Application with written reasons to follow. I excluded the Applicant’s statement from evidence as the remedy for the violations his Charter rights.

5 These are my written reasons.

II. ISSUE

6 To be decided in this Application was the appropriate remedy for the violation of the Applicant’s ss. 7, 9 and 11(e) Charter rights as he did not appear before a justice within 24 hours after his arrest, a violation of s. 503(1) of the Criminal Code.

III. POSITION of the PARTIES

7 The Applicant sought a stay of proceedings as the appropriate remedy to the Charter violations. He submitted that the alternative remedies were insufficient to address the severity of the violations in this case. In the alternative, he sought his statement to the police be excluded and a reduction of sentence.

8 The Respondent Crown conceded the three Charter violations because of the Applicant not having been brought before a justice within 24 hours of his arrest. However, he submitted that in this case, a stay of proceedings was inappropriate given there was no evidence of systemic misconduct, this was an isolated incident, and there were three alternate, available, and appropriate remedies to the violations: namely a judicial condemnation, the exclusion of the Applicant’s statement, and a reduction of sentence.

IV. EVIDENCE

9 The Applicant filed an Affidavit from Ahmad Jahfari, the Applicant’s son. He attested that he brought his father to 31 Division at about 7:00 a.m. on August 22, 2018, to turn himself in. He was informed his father would be taken to court that day. He attended the courthouse to await his father’s attendance and to propose himself as a surety. His father did not arrive that day. Mr. Ahmad left the courthouse at approximately 5:00 p.m.

10 Mr. Ahmad Jahfari returned the next day, August 23, 2018, and waited for his father until the afternoon. The Applicant was released just after 6:00 p.m.

11 The Applicant called Detective Constable Raymond Hobson, currently of the OPP, but previously a police officer with the Toronto Police Service (TPS).

12 Officer Hobson testified that shortly after he started his shift at 2:00 p.m. on August 22, 2018, he was informed the Applicant had been arrested at 8:50 a.m. and spoken to Duty Counsel at 9:30 a.m. When he inquired why the Applicant was still at the Division, he was informed there were several people in custody at the Division and “the wagons could not attend”, so Mr. Jahfari had missed the deadline.

13 He testified the “wagons” he was referring to, were large police vehicles which hold 6-8 people and are deployed by the central police unit to transport prisoners to court. The station booker, who is aware of all arrests, contacts the unit to request the wagons attend the station to take prisoners to court.

14 Officer Hobson testified to his own practice and what he believed was the process at 31 Division to ensure that all persons arrested were presented before a justice prior to the 24-hour s.503 deadline.

15 DC Hobson did recall on previous occasions taking steps to alert colleagues of the approaching 24-hour deadline so as not to violate it and had on occasion heard that a prisoner was taken to court in a police vehicle, but he had never transported a prisoner in this way. When asked why he did not do so on this occasion, he responded that by the time he learned of the problem, he would not be able to get the Information and the prisoner before the court before the deadline.

16 Officer Hobson testified to his experience at 31 Division and the requirements of s.503 of the Criminal Code. He stated that although he had heard of individuals missing the deadline for court, it was “rare”. He knew it was “possible” but he was not aware of any instances and could not recall any such incident.

17 In fact, in Officer Hobson’s 8 years of experience at 31 Division, this case was the only one “on his watch” that had ever missed the s. 503 timeline.

18 In this case, Officer Hobson proceeded to interview the Applicant from 3:06 to 3:42 p.m., and thereafter the Applicant was held overnight at a different Division.

V. LEGAL PRINCIPLES

Legislation

19 The Criminal Code states:

s. 503 (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;

20 The breach of s.503(1) has been found to be an infringement of ss.9 in R. v. McGregor, 2020 ONSC 4802, s.7 per R. v. Dawson, 2016 ONSC 3461 and therefore logically a breach of s. 11(e).

s.9 Everyone has the right not to be arbitrarily detained or imprisoned.

s.7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

s. 11 Any person charged with an offence has the right

(e) not to be denied reasonable bail without just cause;

Remedies

21 When such breaches occur, the remedy section of the Charter provides:

24 (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

22 The court may exclude evidence bringing administration of justice into disrepute:

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

23 Four possible remedies in this case are: a stay of proceedings; the exclusion of evidence; a reduction of sentence, and a judicial condemnation.

24 The principles pertaining to each remedy are as follows.

25 A stay of proceedings, the remedy requested by the Applicant, is reserved for the “clearest of cases” when state conduct falls into one of two categories:

a) Where state conduct compromises the fairness of an accused’s trial (the “main” category); and

b) Where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the “residual” category). R. v. O’Connor, [1995] 4 S.C.R. 411

26 Both parties agree the main category is not engaged and the court is to consider the three-step test to be applied in the residual category as stated by R. v. Babos, 2014 SCC 16:

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, perpetuated, or aggravated through the conduct of the trial, or by its’ outcome.

2. There must be no alternative remedy capable of redressing the prejudice; and

3. Whether 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’”.

27 Specifically, when the residual category is invoked, the question can be framed as whether the trial:

“will leave the impression that the justice system condones the conduct that offends society’s sense of fair play and decency’, Babos at ¶35

and 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.” Babos at ¶41

28 Should the court choose to exclude evidence, the applicable three-part test to consider is articulated in R. v. Grant, 2009 SCC 32:

1. The seriousness of the Charter-infringing state conduct.

2. The impact of the breach on the Charter protected interest of the accused.

3. Society’s interests in the adjudication of the case on its merits.

29 A third possible remedy recognized by the Supreme Court of Canada for Charter-infringing state conduct, is a reduction of sentence, not pursuant to s. 24(1), but rather pursuant to s.718.2(a) of the Code which provides that a court should reduce a sentence “to account for any relevant…mitigating circumstances relating to the offence or the offender.” R. v. Nasogaluak, 2010 SCC 6

30 Finally, the fourth remedy, recommended by the Crown, is a judicial condemnation of the police practice pursuant to R. v. S.B., 2014 ONSC 527.

VI. ANALYSIS

Stay of Proceedings

31 The evidence for the delay in transporting the Applicant to court was that there were several people in custody at the station and the police vehicles to take the Applicant to court did not arrive in time to take him.

32 The officer testified this was a “rare” occurrence, though he had heard of it happening, he knew of no examples, could not recall any instances, and in 8 years of service at 31 Division this was the only time it had occurred while he was working.

33 There is no evidence of systemic offensive police conduct that is harmful to the integrity of the justice system. Nor is there any evidence that any further harm or likelihood of future misconduct would occur if the prosecution proceeded.

34 I find this conduct to be an unusual and isolated incident.

35 There are also three other available remedies, one of which is specifically capable of redressing the prejudice caused to the Application by the violation of s. 503(1).

36 As a result, neither of the first two prongs of the Babos test are met.

37 As stated, the impugned conduct, though serious, was isolated. The conduct does not reflect an ongoing problem. When this isolated impugned conduct is balanced with the seriousness of the charges, and the interests of society in having them disposed on their merits, the third prong of the Babos test is not met.

38 For these reasons, I find this is not the clearest of cases, and reject a stay of proceedings as a remedy.

Sentence Reduction

39 The Applicant submitted a sentence reduction is of limited utility to him due to his status as a permanent resident in Canada and the possible immigration repercussions of a sentence, suggesting this option only as an alternative remedy.

40 The Crown submitted the Applicant’s position on the possible immigration consequences of a conviction is legally incorrect. He delved into the details of possible collateral sentencing implications.

41 There has been no evidence heard, there is no information about the specific circumstances of the Applicant, and as a person presumed innocent, both parties are speculating about sentencing consequences in the absence of evidence, findings, and argument as applicable to the Applicant in a situation with a very wide range of possible outcomes.

42 Given these circumstances, a sentence reduction, is not an appropriate remedy.

Judicial condemnation

43 The need for expeditious bail hearings is reflected in the Criminal Code (s.516), in the Charter (s. 11(e)) and in the jurisprudence. R. v. Musara, 2022 ONSC 3190 stated that s. 503(1) exists to ensure (1) judicial supervision over a detainee’s deprivation of liberty, (2) provide the earliest opportunity to access judicial interim release provisions, and (3) deter abuses by police who may be tempted to prolong a person’s custody to continue to investigate.

44 In this case, the Applicant was arbitrarily detained overnight, he was deprived of his liberty and his access to a reasonable bail was delayed.

45 As such, a judicial condemnation is an insufficient remedy to address the harms sustained by the Applicant in these circumstances.

Exclusion of statement

46 Although the violation of s. 503(1) was not motivated by a desire to continue the investigation, it led to exactly that result. The fact is, the Applicant should have been in court at 3:00 p.m. on August 22, 2018, but he was being interviewed by police instead.

47 The Applicant’s statement, although provided voluntarily and obtained in compliance with s.10(b), was still the fruits of Charter-infringing state conduct that led to him still being at the station and accessible to police. This is a serious Charter breach which significantly impacted the Applicant.

48 There is a nexus between both the Charter breaches, and the violation of s. 503(1) that led to the obtaining of the Applicant’s statement. The state should not benefit from this Charter-infringing conduct.

49 Therefore, it is the exclusion of the statement that is the appropriate remedy for both the Charter breaches, and as a remedy that redresses the prejudice created by the s.503(1) violation.

VII. CONCLUSION

50 The Applicant’s statement to police on August 22, 2018 will be excluded pursuant to s. 24(2) of the Charter as the remedy for the violation of the Applicants ss. 7, 9 and 11(e) rights when he was not brought before a justice pursuant to s. 503(1) of the Criminal Code.

Released: June 12, 2023 Signed: Justice Cidalia C.G. Faria