CITATION: R. v. Rashid 2010 ONCA 591
DATE: 20100914
DOCKET: C50242
COURT OF APPEAL FOR ONTARIO
MacPherson, Rouleau and Karakatsanis JJ.A.
BETWEEN
Her Majesty The Queen
Respondent
and
Mohammed Azhar Rashid
Appellant
Joseph Di Luca, for the appellant
Susan Magotiaux, for the respondent
Heard and released orally: September 10, 2010
On appeal from the decision of Justice Alexander Sosna of the Superior Court of Justice dated March 6, 2009.
By the Court:
[1] The appellant was found guilty of assault against his wife and son arising from a domestic incident that occurred in their home on November 14, 2005.
[2] Following the finding of guilt, the appellant brought an application pursuant to s. 24(1) of the Charter for a stay of proceedings on the basis that his rights under s. 9 of the Canadian Charter of Rights and Freedoms were violated both by the delay in bringing him before a justice for a bail hearing and because of the operation of a police policy. That policy was to hold all persons charged with domestic assaults until they attended a bail hearing before a judicial officer. The fact that the officer would not consider release from custody of persons charged with domestic violence, pursuant to s. 498 of the Criminal Code, was found by the trial judge to be a systemic abdication of legal responsibility by the Durham Regional Police Services.
[3] The trial judge ruled that the appellant’s rights had been violated. As to remedy, however, the trial judge rejected the appellant’s request that a stay be imposed. Instead, he accepted the appellant’s alternate submission and gave the appellant enhanced credit for his 2 days of pre-trial custody on a 4 for 1 basis. As a result, the appellant was sentenced to 21 days in custody, to be served intermittently, followed by 2 years probation.
[4] On summary conviction appeal, the judge dismissed the appeal. Accordingly, the appellant seeks leave to appeal to this court on the basis that the summary conviction appeal judge erred in law by upholding the trial judge’s decision to refuse the stay.
[5] In our view, the appellant has not met the test for leave to appeal a decision of a summary conviction appeal judge as set out by this court in R. v. R.R. (2008), 2008 ONCA 497, 90 O.R. (3d) 641 (Ont. C.A.).
[6] The trial judge in this case applied the proper legal principles and exercised his discretion to craft a remedy that appropriately addressed the circumstances of the breaches and the public and individual interests at stake. The appellant had an appeal of the remedy decision. The summary conviction appeal judge gave a detailed review of the remedy, applied the appropriate legal principles and found that the trial judge’s decision and reasons demonstrated a proper balancing of the seriousness of the breach, the prejudice to the appellant and the public interest. A second level appeal of this fact-specific and discretionary remedy decision is not warranted.
[7] In refusing leave, we should not be taken to be minimizing the importance of Charter principles regarding the granting of pre-trial release. However, this issue was addressed by the courts below. Specifically, with respect to the Durham Police Services Policy, there was clear recognition that this systemic policy led to a serious Charter breach and clear judicial denunciation of the practice.
[8] The summary conviction appeal judge concluded that the denunciation of the Durham Police Services detention practice together with the enhanced credit for pre-trial custody properly addressed the seriousness of the breach. The summary conviction appeal judge then went on to state that “[i]t is strongly urged that the policy of routine detention of those charged with domestic violence be immediately terminated.”
[9] The finding of the breach and the denunciation of the policy are not being appealed by the Crown. The leave to appeal sought is limited to a review of the trial judge’s exercise of discretion and the choice of remedy for a s. 9 Charter breach.
[10] This court has recently considered the test for a stay in the context of bail-related Charter breaches in R. v. Zarinchang (2010), 2010 ONCA 286, 99 O.R. (3d) 721 (C.A.). There is no need for further clarification of legal principles.
[11] For these reasons, the leave to appeal application is dismissed.
“J.C. MacPherson J.A.”
“Paul Rouleau J.A.”
“Karakatsanis J.A.”