Court of Appeal for Ontario

Citation: R. v. Ward, 2011 ONCA 267

Date: 2011-04-06

Docket: C50704

Before: Simmons, Blair and Watt JJ.A.

Between:

Her Majesty the Queen (Appellant)

and

Brian Ward (Respondent)

Counsel:

Alexander Alvaro, for the appellant

Kristin Bailey, for the respondent

Heard and released orally: March 30, 2011

On appeal against the stay of proceedings imposed by Justice Stephen D. Brown of the Ontario Court of Justice on June 2, 2009.

ENDORSEMENT

[1] The respondent was facing six charges on five informations relating to events that occurred between July 16, 2008 and January 17, 2009. The charges ranged in seriousness from theft under to break, enter and theft in relation to a dwelling house, obstruct a peace officer and uttering a death threat.

[2] Following a contested bail hearing on March 27, 2009, the respondent was released on a recognizance with a surety. On April 22, 2009, the respondent attended court with his surety to have the bail revoked for what was anticipated to be a 10-day period during which the surety was going out of the country, thus unable to supervise the respondent. On April 23, 2009, the matter was remanded to May 4, 2009 for a bail hearing.

[3] Unfortunately, the May 4, 2009 return date coincided with an illegal strike at the Maplehurst Detention Centre where the respondent was detained. The respondent was not transported to court until after 1 p.m. on both May 4 and 5, 2009 with the result that his bail hearing did not proceed until May 7, 2009. The respondent’s surety was not present and the bail hearing proceeded on a contested basis. The justice of the peace declined to make an order for the respondent’s release on his own recognizance and instead made an order permitting his release on a recognizance with a surety on terms identical to the March 27, 2009 order.

[4] As of June 2, 2009, the respondent had not yet been released. Accordingly, he moved for a stay of all charges, arguing that the four-day delay in conducting his May 4, 2009 bail hearing was a contravention of s. 503 of the Criminal Code and ss. 7, 9 and 11(e) of the Charter.

[5] The trial judge concluded that the state had breached its obligation to bring the respondent before the court in a timely manner and that in the intervening period the respondent had also been deprived of his right to retain and properly communicate with counsel. Although the trial judge found that the breaches of the respondent’s rights would not affect the fairness of the trial, he concluded that they did impact the respondent’s ability to make full answer and defence at his bail hearing. He further found that the conduct of the correctional officers at the Maplehurst Detention Centre, which was found by the Ontario Labour Relations Tribunal to amount to an illegal strike, was an affront to the administration of justice such as to shock the conscience of the community. Based on these findings, the trial judge concluded that the only appropriate remedy was a stay.

[6] The Crown argues that this case does not fall into the category of one of the clearest of cases warranting a stay. We agree.

[7] The legal principles governing applications for a stay are well established. They were summarized by this court in the recent decision of R. v. Zarinchang (2010), 2010 ONCA 286, 99 O.R. (3d) 721 (C.A.), at para. 57.

[8] As was recognized by the trial judge, this case falls into the residual category of cases in which a stay may be granted, as there was no impact on the fairness of the trial.

[9] The standard of review and legal principles governing the residual category are set out in Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 CanLII 322 (SCC), [1997] 3 S.C.R. 391, at paras. 87-92.

[10] In this case, the presenting problem was an illegal strike. An illegal strike, standing alone, is not state misconduct. There is no evidence that state misconduct caused or even contributed to the strike. Moreover, the state moved promptly to remedy the problem by having the strike declared illegal.

[11] Although we agree that it was unfortunate that the respondent’s bail hearing was delayed, the delay was relatively brief. Further, there was no evidence that the respondent was actually prejudiced in any real way by the delay as his surety did not attend to facilitate his release at any time between May 4, 2009 and the return date of the stay application. Moreover, there was no admissible evidence before the application judge to explain that omission. On a practical level, in our view, there is simply no evidence of state conduct that resulted in an abuse of process vis-à-vis the respondent. In the end, we are satisfied that the state did not conduct this matter in a way that renders the proceeding unfair or in a manner that is otherwise damaging to the integrity of the judicial system: see Tobiass at para. [90](https://www.minicounsel.ca/scc/1997/322