Overview
[1] Robert Freedland is the respondent to an underlying section 117.05 application brought by the Crown. Mr. Freedland has brought an application for abuse of process with respect to the underlying section 117.05 disposition process and its accompanying hearing.
[2] The Applicant before the court, Mr. Freedland, seeks a stay of this proceeding based on an alleged abuse of process perpetrated by the Crown. The Applicant alleges that by commencing this proceeding the Crown has “reneged” on an agreement made at the end of the Applicant’s preliminary hearing for 10 counts of Conspiracy to Kidnap and that the proposed section 117.05 hearing is motivated by malice on the part of state actors following his conviction being overturned by the Court of Appeal. A new trial was ordered following which the Crown stayed the charges.
[3] In the alternative, the Applicant seeks an order assigning an “out of town” Crown to take carriage of this proceeding.
[4] Lastly, the Applicant seeks an order to summons the empanelled jury for his original trial in 2018 to investigate what the Applicant believes was an obstruction of justice that occurred during his trial.
[5] It is the Crown’s submission that there is either no evidentiary basis or no legal basis to grant the remedies sought and the Crown submits that these applications should be dismissed.
[6] This application was brought and argued before me earlier today. The following are my written reasons for my decision on this application.
Summary
[7] Given the particular history of this matter, a brief summary is of assistance. In January of 2017, Police searched the Applicant’s residences and that of a Mr. Garvin James. In the latter search, police found a recently purchased Mossberg Shotgun. It was registered to the Applicant. Two further firearms, a SKS rifle and a Scorpio Tactical Shotgun, were found at the Applicant’s property in Kaladar, Ontario. These firearms were seized pending his trial and then re-seized as part of this application on September 26, 2023 by the Toronto Police Service. The Crown seeks a forfeiture of them.
[8] Mr. James and the Applicant were subsequently charged with 10 counts of conspiracy to commit the indictable offence of kidnapping. The Applicant’s preliminary hearing took place in the summer of 2017. At some point during this hearing, the parties came to resolution on what offences the Applicant would be committed to trial in the Superior Court of Justice. That resolution stated, “in agreeing that committal would not be challenged it was agreed that there would not be any firearms charge added to the indictment—neither on committal or by the Crown.”
[9] While a simplified three count indictment was later placed before the court, it did not include any firearms offences.
[10] During the Applicant’s jury trial, Mr. James testified the Applicant purchased the Mossberg shotgun and ammunition. They were then given to Mr. James to use in the kidnapping of 10 lawyers targeted by the Applicant. The Applicant was found guilty of one count of counselling to commit extortion.
[11] On May 3, 2023, the Court of Appeal overturned the conviction and ordered a new trial. On July 28, 2023, the Crown stayed the proceedings. On September 22, 2023, the Toronto Police Service commenced this proceeding. There is presently no indictment before any court in the Province of Ontario and the Applicant is not currently charged with any Criminal Code offence.
[12] I have been provided with written materials by the Crown Mr. Hobson and Ms. Friedman who is acting on behalf of Mr. Freedland as well as a motion record filed by Mr. Freedland himself which comprises a number of materials. In addition to the helpful materials with which I was provided, counsel supplemented these with oral submissions.
[13] I have reviewed all of the materials and supporting case law that counsel have provided me with. Counsel agree as to the relevant law that governs an abuse of process application but diverge as to the decisions that the Court should make in light of all of the evidence and information before the court.
[14] Counsel also disagree as to whether either of the alternate orders that are sought should be granted and whether there is a basis to do so.
Law and Analysis
Abuse of Process
[15] The Applicant seeks a stay of proceedings pursuant to s. 106 of the Courts of Justice Act.
[16] Section 106 of the Courts of Justice Act, RSO 1990, c C.43 states:
Stay of proceedings 106
A court, on its own initiative or on motion by any person, whether or not a party, may stay any proceeding in the court on such terms as are considered just. R.S.O. 1990, c. C.43, s. 106.
Section 106 gives the court a broad discretion to stay proceedings, unfettered by any specific test.
Hester v. Canada (National Revenue) at para 15.
The onus is on the party seeking a stay to establish that the stay is justified.
Blue Note Mining Inc. v. CanZinco Ltd. at para 8.
[17] An order for a stay-of-proceedings is “the most drastic remedy” available under the law, one that “permanently halts the prosecution” and, in so doing, frustrates “the truth-seeking function of the trial” and deprives the “public of the opportunity to see justice done on the merits.” Only in the rarest of occasions – “the clearest of cases” – will this remedy be warranted.
R. v. Babos, 2014 SCC 30 at para 30
R. v. Regan, 2002 SCC 12 at para 53
R. v. O’Connor, 1995 SCC 68 at para 68
[18] These circumstances ordinarily fall into two categories: (i) the ‘main’ category, in which the state conduct compromises the fairness of the accused’s trial; and, (ii) the ‘residual’ category, in which the state conduct undermines the integrity of the judicial process but does not impinge upon trial fairness. For either category, a three-part test determines whether the remedy is appropriate.
[19] The prejudice to the accused’s fair trial rights or the integrity of the justice system must be “manifested, perpetuated, or aggravated” by either the trial or its outcome. No alternate remedy capable of redressing the prejudice exists; and, where uncertainty remains regarding the appropriateness of a stay at steps (a) and (b), above, a balancing occurs in relation to the interests militating in favour of the stay, such as denouncing misconduct and preserving the integrity of the justice system, against society’s interest in having a final adjudication on the merits.
R. v. Babos, supra at paras 31-32
R. v. O’Connor, supra at paras 71, 73
[20] In relation to the residual category, the remedy of a stay-of-proceedings will ordinarily – although not always – be invoked to cure state misconduct. Occasions where the integrity of the justice system is impugned in the absence of state misconduct may include repeatedly prosecuting an accused for the same offence following successive trials in which the juries were hung and using the criminal process solely for the purposes of collecting a civil debt.
R. v. Babos, supra at para 37
R. v. Waugh at paras 33-37
[21] During the Applicant’s criminal trial, the Crown entered into an agreement with him in which Mr. Freedland agreed to committal to stand trial in exchange for the Crown agreeing not to pursue criminal firearms charges against him. No criminal firearms charges formed part of Mr. Freedland’s trial.
[22] It is the position of the Applicant that his understanding of the agreement he made with the Crown was that he would face no jeopardy at all with respect to the firearms and that this extends to the proposed 117.05 hearing. While it is the Applicant’s position that he may have been represented by counsel at the point in time he entered into this agreement, he submits it is reasonable for him to be of the view that a reasonable person similarly situated would reach the same conclusion as him.
[23] The Applicant admits that the Crown has reneged on its promise and this violates fundamental principles of justice and amounts to an abuse of process. Furthermore, the applicant contends that the timing of the section 117.05 Application proximate to the decision taken to stay the charges against him raises the reasonable spectre that section 117.05 application is motivated by malice on the part of the state and that this also would clearly amount to abuse of process.
[24] The Applicant filed several formal complaints against the trial Crown, the trial judge and police officers involved in his original trial in June 2023. In July of 2023, the Crown made a decision to stay the charges against the applicant. In September 2023, the underlying section 117.05 application was brought.
[25] Simply put, it is the Applicant’s position that the section 117.05 hearing is being pursued as some form of vendetta to compensate for the frustration that he submits agents of the state feel as a result of the criminal prosecution against him being discontinued after a re-trial was ordered and his conviction was overturned.
[26] On my review of the agreement reached as between the Crown and the Applicant at his trial, a plain reading of it makes clear that the Crown undertook not to pursue criminal firearm charges against Mr. Freedland at his trial. This undertaking was given and honoured. Within the context of the criminal matter that was then before the courts and to which Mr. Freedland was a party, the extent of the agreement is clear on applying the ordinary, plain and natural meaning of the language used.
[27] I agree with Mr. Hobson for the Crown that an agreement on what charges would be included on an indictment cannot reasonably be interpreted as immunity from any future proceedings or sanctions.
[28] I appreciate that it is Mr. Freedland’s current position that he understood that the agreement really meant that he would be subject to no jeopardy whatsoever with respect to the 3 firearms that are in issue but I am satisfied that there was not then, nor is there now, a reasonable basis for him to reach a contrary conclusion.
[29] Nothing in the agreement and importantly the context within which it was reached would have led a reasonable person to conclude that they would be rendered exempt from, for example, the regulatory regime applicable to firearms.
[30] I also note that at the time of the original conviction and the corresponding lifetime weapons prohibition order that was imposed this issue was not raised as a concern by the Applicant but is raised before the Court for the first time on this application.
[31] The Supreme Court of Canada in R. v. Zeolkowski, [1989] SCC 20395 and the relevant statutes make it clear that the firearm disposition process and its related regime do not equate with a person being accused of a criminal offence. Nor do the provisions affect the Applicant’s liberty interests. The “jeopardy” that the Applicant is subject to is a section 117.05 hearing the outcome of which cannot be known and which has yet to be determined. In short, the Applicant argues that the jeopardy is the process in and of itself.
[32] I do not find that there is any basis to conclude that pursuing a properly conducted section 117.05 hearing represents any reneging of the original agreement that the Applicant and Crown entered into and as such, I find that there is no abuse of process as alleged.
[33] The section 117.05 is a distinct process that is to be conducted impartially and according to the governing principles and rules of evidence. While there may be evidential connections with the original trial, it is not and is not intended to be a re-litigation of the criminal issues at any previous trial.
[34] I now turn to the timing of the filing of the section 117.05 Application. I can appreciate that to the Applicant there may be a sense of frustration that this process was initiated relatively proximate to the decision to stay the charges against him.
[35] I note that there was approximately a two-month gap between the decision to stay the charges and the decision to bring the section 117.05 application in respect of the 3 firearms. I note that the firearms were still in the possession of the police at this time. It may seem self-evident to the Applicant that the section 117.05 hearing is simply motivated by malice but there is no evidence before me to support such a conclusion as being with foundation.
[36] The section 117.05 process is one focused principally on issues of safety, not punitive sanctions. If it is not desirable in the interests of safety of the person from whom an item is seized, or any other person, a court can order the forfeiture of the items and impose an accompanying weapons prohibition.
[37] The two-month time period between the decision to stay the charges and to initiate the section 117.05 hearing does not strike me as consistent with a rush to act malevolently against the Applicant and seems consistent with a reasonable period of time to make a balanced decision. I am sure that for the Applicant this seems more than a coincidence but such speculation on his part provides no basis for me to conclude that merely initiating the section 117.05 hearing amounts to an abuse of process.
Applications in the Alternative
Out-of-Town Crown
[38] The Applicant seeks an order from the Court that if a section 117.05 hearing is to proceed that an “out-of-town Crown” should have carriage of the matter. Specifically, this would mean a Crown Attorney from somewhere other than the Toronto region.
[39] The basis for this application is that Mr. Freedland has lodged formal complaints against the Toronto Crown Attorney who prosecuted him and an alleged victim of the original charges against Mr. Freedland was a former Toronto Crown Attorney.
[40] Ms. Friedman, on behalf of Mr. Freedland, submits that perception of fairness is as important as actual fairness and that the interests of justice militate in favor of such an order in this case. She further submits that there is the perception of a conflict of interest in this case among Toronto Crown Attorneys. This is a submission Mr. Hobson roundly rejects.
[41] Mr. Hobson, for the Crown, opposes this Application. He submits that there is no evidential basis to support the making of such order. Mr. Hobson further submits that any such order would have adverse administrative and operational implications for the Crown in both Toronto and the region from which any alternate Crown Attorney was sourced. He also submits that there would be a danger in the court making such an order because of what would be termed the risk of a “floodgates argument” in that individuals before the court would subsequently be more likely to seek to influence the assignment of Crown Attorneys in cases to which they are a party.
[42] It is clear from the materials that I have reviewed that Mr. Freedland has profound concerns he is the victim of a conspiracy by a number of state actors. This list includes Crown Attorneys from the Toronto region as well as his original trial judge and a number of police officers. It is not my role or purpose on this application to address the merits or lack thereof of those allegations.
[43] However, I am of the view that the perception that Mr. Freedland holds of state actors working against him is one he legitimately believes and that proceedings connect him to at least two current or former Toronto Crowns. It is his genuine perception and his subjective belief that the fairness of any section 117.05 hearing is dependent upon a Crown Attorney from outside of Toronto region conducting this matter.
[44] I appreciate the merit and logic to Mr. Hobson’s submissions. An individual before the court cannot simply be allowed to dictate which Crown is assigned to his or her case. Crown Attorneys are ministers of justice and presumed to act as such. I also appreciate that perception is not the same as reality.
[45] Nevertheless, Mr. Freedland does not seek to impose a particular or individual Crown Attorney on any section 117.05 proceedings or to exclude any specific individual. His request is for any one of the approximately 700 remaining Crown Attorneys in the province of Ontario to conduct this matter given the history of his proceedings before the courts.
[46] While it is not determinative and is inevitably case specific, the perception of an individual before the courts that their matter is not proceeding fairly is an issue that the courts are obliged to take seriously. It is inevitably a contextual analysis and I do not believe that a decision predicated on the specific facts of this case would determine the outcome of such a request in another case and thereby risk creating a problematic flood of similar outcomes.
[47] I appreciate that Crown resources are not unlimited and they are frequently stretched to breaking point. However, I am not persuaded that assigning one out-of-town Crown attorney for the limited purposes of conducting a section 117.05 hearing would place an unreasonable or inappropriate burden upon the Crown’s resources. While I accept Mr. Hobson’s submissions that there would inevitably be some impact on Crown scheduling operations, this would seem to me to be both modest and manageable.
[48] Within the specific context of this application and their somewhat atypical history, I am satisfied that the interests of justice are in favour of me ordering that a Crown Attorney from somewhere other than the Toronto region is to conduct the future section 117.05 proceedings. I am of the view that both the appearance of justice and the interests of justice in this case would be best served by such an order. This is not to impute any bad faith on the part of any of the Crown Attorneys in Toronto and nor should any such imputation be construed.
Jurors to be Summonsed to Investigate Obstruction of Justice
[49] The second order in the alternative that the Applicant seeks is an order from the court summonsing the jurors from the Applicant’s original criminal trial to testify at the section 117.05 hearing.
[50] The basis for this application rests upon the Applicant’s belief that the Crown anticipates seeking the Court to draw adverse inferences against him at the section 117.05 hearing based upon the criminal conviction which was subsequently overturned.
[51] Based on this premise, the Applicant relies upon a phone call he indicates he received in 2024 from an anonymous person who did not disclose their name and who apparently blocked their telephone number. This individual claimed to be a friend of a juror at the Applicant’s former criminal trial and this anonymous person claimed that they were told that the jury had been provided with a prejudicial photograph of the applicant that was not adduced as an exhibit at his trial.
[52] The applicant seeks to counter any such adverse inference that the Crown seeks at the section 117.05 hearing by having his former jurors made available for cross-examination as part of the disposition hearing and to explore whether an obstruction of justice occurred in his previous trial.
[53] Section 649 of the Criminal Code allows for the questioning of jurors regarding their deliberations in only two instances:
a. An investigation under s. 139(5) in relation to a juror
b. Giving evidence in criminal proceedings in relation to a s. 139(2) offence.
[54] Mr. Hobson opposes this application and submits that there is no evidential basis upon which to make such an order and that the only information before the court is effectively “double hearsay” which is incapable of being tested for its reliability or credibility. He further submits that it is not the role of this court to instigate such criminal investigations and that the jealously guarded sanctity of the jury room should only be subject to the limited intrusion of section 649 of the Code in the clearest of circumstances.
[55] Mr. Hobson further submitted that while he would not be seeking to bind any colleague with eventual carriage of this matter, he did not foresee a likelihood of the Crown seeking this court to draw an adverse inference from an overturned criminal conviction. While he did anticipate that there may be evidential issues from the previous criminal trial that may be of relevance to the disposition hearing, he quite rightly, in my view, did not anticipate that the Crown would seek to go behind the overturned conviction nor the Crown’s subsequent decision to stay the matter against the Applicant.
[56] Given the anticipated position of the Crown with respect to the concern that the Applicant had it seems that, following Crown submissions, there would not be a foundation for the Applicant’s concern and therefore there would not be a basis for the order he seeks to summons his former jurors.
[57] In what I hope is the unlikely event that the Crown position changed on this issue, it would be open to Applicant to renew his application. However, any such application would require a clear and legitimate foundation as well as credible evidence in support of it.
[58] On the basis of the information currently before me, both a foundation for the application and any credible or reliable evidence supporting it are absent. I shall not make any order for the summonsing of the Applicant’s former jurors.
Summary
[59] In summary and for the foregoing reasons:
i. I dismiss the Application with respect to an abuse of process;
ii. In the interest of justice, a Crown attorney from somewhere other than the Toronto region will conduct the 117.05 hearing.
iii. There is no basis to grant an order summonsing the Applicant’s former jurors to testify at the firearms disposition hearing and no such order will be made.
[60] I shall now address with the parties the time estimate and scheduling arrangements for the section 117.05 hearing.
Released: 17th January, 2025
Signed: Justice Michael Waby