Her Majesty the Queen v. S.B.
[Indexed as: R. v. B. (S.)]
Ontario Reports
Court of Appeal for Ontario,
Rosenberg, Cronk and Juriansz JJ.A.
July 8, 2014
121 O.R. (3d) 145 | 2014 ONCA 527
Case Summary
Charter of Rights and Freedoms — Remedies — Stay of proceedings — Accused youth charged with serious firearms offences — Trial judge finding that 12-day delay in holding bail hearing violated accused's rights under s. 11(e) of Charter — Trial judge finding that first two requirements for stay of proceedings under residual category of abuse of process were satisfied — Trial judge reasonably concluding that community's interest in seeing disposal of serious charges on their merits tipped balance against granting stay of proceedings — Trial judge not overemphasizing seriousness of charge — Canadian Charter of Rights and Freedoms, ss. 11(e), 24(1).
The accused, a 17-year-old youth with no criminal record, was charged with serious firearms offences, as was his co-accused, K.A. They were arrested on April 3 after a search warrant of the accused's bedroom resulted in two firearms, ammunition and extra magazines being found in his bedroom. At trial, he applied for a stay of proceedings under s. 24(1) of the Canadian Charter of Rights and Freedoms, arguing that his Charter rights were violated by the 12-day delay in holding his bail hearing. On April 4, the Crown and counsel representing both accused sought an adjournment of the hearing. The Crown stated that a special "guns and gangs" Crown should do the bail hearing and the accused's counsel indicated that they needed time to prepare and to get their sureties present. The justice of the peace expressed concern about the likely length of the bail hearing but put the matter over to April 6, saying that efforts would be made to leave sufficient time in the docket for that date to accommodate a longer than average bail hearing. The guns and gangs Crown arrived at court late because he was reviewing evidence at another courthouse. There was concern about whether there was enough time to conclude the hearing. The justice of the peace warned that he was unavailable for two weeks after April 6, and he noted that a practice direction from the senior regional judge required counsel to get a date from the trial coordinator in any case in which a bail hearing was expected to last more than 90 minutes or an hour. Counsel for the accused advised that they could proceed on April 8 and that a court was available. The Crown was not available that day and indicated that no replacement could be located. The hearing was adjourned to April 14. The evidence was concluded that afternoon but the justice of the peace indicated that he wished to review his notes and write reasons so he adjourned the matter to April 18. The accused was ordered released on bail. On the day of trial, the accused argued that the 12-day delay before his bail hearing was concluded violated his Charter rights and the trial judge agreed. He found that the first two requirements for a stay of proceedings in the residual category of abuse of process were satisfied, as there would be prejudice to the integrity of the justice system that would be manifested, perpetuated, or aggravated through the conduct of the trial or going ahead with the case, and as there was no alternative remedy capable of addressing the prejudice to the accused's rights. However, he found that the community's interest in seeing the proper disposal of the serious charges on their merits tipped the balance against granting a stay of proceedings. The accused was convicted. He appealed. [page146]
Held, the appeal should be dismissed.
The delay in holding the accused's bail hearing violated his right under s. 11(e) of the Charter not to be denied reasonable bail without just cause. In declining to grant a stay of proceedings, the trial judge did not err in his treatment of the balancing requirement and did not overemphasize the seriousness of the charges. He was right to treat as important factors the seriousness of the charges and the broader community interest in having the charges disposed of on the merits. It would be inappropriate to adopt an analysis under s. 24(1) of the Charter similar to that applicable to the exclusion of evidence under s. 24(2) of the Charter. Although the delay in conducting the bail hearing was unacceptable, it was open to the trial judge to decline to enter a stay of proceedings.
The trial judge's conclusion that the accused had possession of the weapons, ammunition and other contraband was supported by the evidence and was not unreasonable.
R. v. Babos, [2014] S.C.J. No. 16, 2014 SCC 16, 2014EXP-660, 367 D.L.R. (4th) 575, 454 N.R. 86, J.E. 2014-343, EYB 2014-233436, 8 C.R. (7th) 1, 300 C.R.R. (2d) 153, 308 C.C.C. (3d) 445, 112 W.C.B. (2d) 68, apld
Other cases referred to
R. v. Brown, [2009] O.J. No. 3592, 2009 ONCA 633, 247 C.C.C. (3d) 11, 255 O.A.C. 13; R. v. Grant, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32, 2009 SCC 32, 82 M.V.R. (5th) 1, 309 D.L.R. (4th) 1, 245 C.C.C. (3d) 1, EYB 2009-161617, J.E. 2009-1379, 66 C.R. (6th) 1, 193 C.R.R. (2d) 1, 391 N.R. 1, 253 O.A.C. 124; R. v. Harrison (2009), 97 O.R. (3d) 560, [2009] 2 S.C.R. 494, [2009] S.C.J. No. 34, 2009 SCC 34, 309 D.L.R. (4th) 87, 245 C.C.C. (3d) 86, EYB 2009-161618, J.E. 2009-1377, 66 C.R. (6th) 105, 193 C.R.R. (2d) 74, 391 N.R. 147, 253 O.A.C. 358; R. v. Regan, [2002] 1 S.C.R. 297, [2002] S.C.J. No. 14, 2002 SCC 12, 209 D.L.R. (4th) 41, 282 N.R. 1, J.E. 2002-377, 201 N.S.R. (2d) 63, 161 C.C.C. (3d) 97, 49 C.R. (5th) 1, 91 C.R.R. (2d) 51, 52 W.C.B. (2d) 150; R. v. Zarinchang (2010), 99 O.R. (3d) 721, [2010] O.J. No. 1548, 2010 ONCA 286, 254 C.C.C. (3d) 133, 319 D.L.R. (4th) 412, 210 C.R.R. (2d) 173, 261 O.A.C. 153, 73 C.R. (6th) 199; Vancouver (City) v. Ward, [2010] 2 S.C.R. 28, [2010] S.C.J. No. 27, 2010 SCC 27, 213 C.R.R. (2d) 166, 321 D.L.R. (4th) 1, 290 B.C.A.C. 222, 2010EXP-2331, 76 C.R. (6th) 207, 7 B.C.L.R. (5th) 203, J.E. 2010-1305, EYB 2010-177090, [2010] 9 W.W.R. 195, 75 C.C.L.T. (3d) 1, 404 N.R. 1
Statutes referred to
Canadian Charter of Rights and Freedoms, ss. 7, 11(b), (d), (e), 24(1), (2)
Criminal Code, R.S.C. 1985, c. C-46, s. 516 [as am.]
Youth Criminal Justice Act, S.C. 2002, c. 1, s. 29
APPEAL by the accused from the convictions entered on April 26, 2012 by Weagant J. of the Ontario Court of Justice, sitting without a jury.
Mark Halfyard, for appellant.
Greg Skerkowski, for respondent. [page147]
The judgment of the court was delivered by
[1] ROSENBERG J.A.: — The appellant young offender appeals his convictions by Weagant J. for numerous firearm and ammunition offences. The appellant raises two grounds of appeal. He submits that the trial judge erred in refusing to stay proceedings because of the delay in affording the appellant a bail hearing. Second, the appellant submits that the verdicts are unreasonable. For the following reasons, I would dismiss the appeal.
A. The Bail Hearing Delay
(1) The facts
[2] Just after midnight on April 3, 2011, police executed a search warrant at the appellant's home in Toronto. The appellant and another young man, K.A., were arrested. Firearms and ammunition were found in the bedroom that the appellant ordinarily occupied. I will refer in greater detail to the facts when I deal with the reasonableness of the verdicts. Later that day, the appellant appeared at the Old City Hall Courthouse and the matter was adjourned to April 4. The adjournment was on consent. The appellant was not ready to proceed with the bail hearing at that time as his sureties were not available. The 17-year-old appellant has no prior record.
[3] On April 4, Crown counsel requested an adjournment of the bail hearing of the appellant and the co-accused to have the officer-in-charge available to testify and to have a "guns and gangs" Crown counsel available to take carriage of the matter. The justice of the peace adjourned the bail hearings for the appellant and his co-accused to Wednesday, April 6. The justice of the peace stated that he would attempt to protect April 6 to ensure that there was time to deal with the bail hearing. The justice of the peace was of the view that the bail hearing would take some time.
[4] The proceedings on April 6 were delayed because Crown counsel did not arrive at court until 11:00 a.m. He explained that he had been looking for some material at another courthouse. He then went on to say that he was ready to proceed but did not think the bail hearing could be completed in the one day. Crown counsel was concerned that if the proceedings started but had to be adjourned, the adjournment might be lengthy because of the schedule of the justice of the peace. Counsel for the appellant stated that he did not believe the hearing would take more than a day but stated that he was "fairly flexible this week and next week". Duty counsel, who was conducting the bail hearing [page148] for the co-accused, stated that she was also anxious to proceed. Both parties had their sureties present at the court.
[5] At this point, the justice of peace stated that for any bail hearing that will last more than an hour and one-half or two hours there must be a special justice of the peace to conduct the hearing so as not to burden the regular bail court. Crown counsel stated that there was a directive from the administrative judge to that effect. The justice of the peace then stated that while he could start the bail hearing he was not available the next day or for the next two weeks. Crown counsel stated that he was not available the next two days. At this point, the justice of the peace suggested that they should "follow the protocol" and obtain a date for the bail hearing from the trial coordinator. The case briefly adjourned. When counsel returned, Crown counsel stated that they had obtained a date of April 14. Counsel for the appellant stated that he had one surety to call for the appellant's bail hearing and that the appellant had a constitutional right to a bail hearing as soon as reasonably possible. He stated that he was available for the rest of the week and the following week, as well as April 14. The agent for the co-accused's counsel stated that she understood that Friday, April 8 was available but that Crown counsel was not and could not find anyone to replace him. The justice of the peace stated that in light of the directive from the administrative judge, he would grant the adjournment to April 14.
[6] The bail hearing for the appellant began on April 14. At the co-accused's request, his bail hearing was adjourned to April 21 so that counsel would have an opportunity to deal with some material that had been disclosed by Crown counsel. The hearing of evidence and submissions finished at 3:45 p.m. The justice of the peace required time to review the material and make the decision and asked that the matter be adjourned to Monday, April 18, if the parties were available. The matter was adjourned to April 18. On that date, the justice of the peace gave very lengthy reasons and ordered that the appellant be released on conditions with his aunt as the surety.
[7] The facts led at the bail hearing indicated that the police found two firearms in the appellant's bedroom. Both firearms were loaded. The police also found an overcapacity magazine and ammunition in the residence. Crown counsel opposed release on the tertiary ground that detention was required to maintain confidence in the administration of justice. The justice of the peace found that this was not one of the rare cases where detention could be justified on the tertiary ground. [page149]
(2) The reasons of the trial judge
[8] At the opening of the trial on February 1, 2012, the appellant applied for a stay of proceedings because of the delay in holding the bail hearing. Counsel made submissions as to whether there was a policy or directive from the regional senior judge about special bail hearings. Counsel informed the trial judge that they had been unable to find any written directive or policy. The trial coordinator told counsel that if the matter is seen as a complex or lengthy matter, it was advisable to schedule a special court date, especially if the matter could not be reached on the date that the person appears.
[9] After reviewing the facts, the trial judge found that the appellant's rights under the Canadian Charter of Rights and Freedoms were violated. He found that the justice of the peace should not have adjourned the bail hearing on April 6 to April 14. The trial judge pointed out that there was time in court on April 8 to hold the bail hearing and it should have gone ahead at that time. The trial judge found fault in the position of the Crown in not being able to proceed on April 8. The trial judge held that the Crown "cannot deny a bail hearing because of the personal schedule of one Crown". As the trial judge stated, the matter should not have been adjourned to April 14 when on the evidence the appellant was ready to proceed with a bail hearing as early as April 4. The trial judge pointed out that had counsel for the appellant, not Mr. Halfyard, refused to consent to the adjournment and insisted that the bail hearing commence, an earlier bail hearing might have been obtained. The trial judge did, however, hold that it was the state's responsibility to protect the young person's rights.
[10] The trial judge applied the test as set out by the Supreme Court of Canada for a stay of proceedings as a remedy under s. 24(1) of the Charter. He found that there would be prejudice to the integrity of the justice system that would be manifested, perpetuated or aggravated through the conduct of the trial or going ahead with the case. The trial judge rejected the Crown submission that this was a one-time problem that would not happen again. He found that there was potential for recurrence. He referred to the supposed policy or practice direction that a special bail hearing is required if the hearing will take longer than two hours.
[11] The trial judge considered whether there was an alternative remedy capable of redressing the prejudice. He found that at the opening of the trial, there was no other remedy. While some remedy might become available at the end of the trial by [page150] reducing the sentence, such a remedy could only be granted if there was a finding of guilt. The trial judge noted that the only remedy sought by the appellant was a stay of proceedings and he was not seeking costs as a remedy.
[12] The trial judge therefore turned to the final factor requiring a balance of the interests in favour of granting a stay against the interests that society has in having a final decision on the merits. The trial judge took into consideration that the appellant had no record and that the bail hearing should have been "fairly straightforward". He pointed out that bail was contested only on the tertiary ground and indicated his view that it was a foregone conclusion that the appellant would have been released. However, the trial judge found that the most compelling aspect was the nature of the charges and the broader interest of the community in seeing that the charges were disposed of on their merits. He said as follows:
To a certain extent society's interest in the proper disposal of the litigation varies directly with the seriousness of the charges. These charges are on the serious end of the spectrum. In my view the community's interest in seeing the proper disposal of such charges tips the balance.
[13] The trial judge therefore refused to order a stay of proceedings. At the conclusion of the trial, having found the appellant guilty, the trial judge reduced the sentence that he might otherwise have imposed by six months in view of the violation of the appellant's Charter rights.
(3) Positions of the parties
[14] The appellant submits that the trial judge erred in refusing to order a stay of proceedings. He submits that the right to a bail hearing is fundamental. This is confirmed by provisions of the Criminal Code, R.S.C. 1985, c. C-46 that require an accused be taken before a justice without unreasonable delay after arrest and limit the right of the Crown to obtain an adjournment. As a young person, this appellant had enhanced rights including the right to have his matter dealt with promptly. Section 29 of the Youth Criminal Justice Act, S.C. 2002, c. 1 also provides for enhanced rights of release. In this case, the trial judge erred in his assessment of the third criterion by focusing almost entirely on the seriousness of the offences with which the appellant was charged. The approach taken by the trial judge was inconsistent with the other remedial provision, s. 24(2) of the Charter, which deals with exclusion of evidence, and where the seriousness of the offence must not be given disproportionate weight. Three factors required a stay of proceedings: that the appellant was a young person; that the Crown was responsible for the [page151] delay; and that there was a potential that an institutional policy mandating special bail hearings contributed to the delay.
[15] The respondent submits that the 12 days from the date of the arrest until the bail hearing began must be carefully analyzed. The initial adjournment for one day and then the adjournment until April 6 were entirely justified. The case was a serious and complex one and initially involved two young persons. There was reason for some delay to ensure that the case was properly dealt with. The trial judge, having found that the test for a stay of proceedings was not made out, granted an appropriate remedy by reducing the sentence. When the trial judge's reasons are read as a whole, it could not be said that he placed undue emphasis on the seriousness of the charges. There was a diminished problem of systemic delay since the delay seemed to have been the result of the calendar of a particular Crown counsel and misplaced reliance on a policy that did not exist. Finally, the trial judge was sensitive to the circumstances of the appellant as a young person.
(4) Analysis
[16] In a number of cases, most recently R. v. Babos, [2014] S.C.J. No. 16, 2014 SCC 16, the Supreme Court of Canada has set out the test for when it is appropriate to stay proceedings as a remedy under s. 24(1), in circumstances other than a violation of the right to a trial within a reasonable time as guaranteed by s. 11(b) of the Charter. The remedy of a stay of proceedings is justified only in the clearest of cases, reflecting the fact that this is the most drastic of remedies available to a criminal court: Babos, at para. 30; and R. v. Regan, [2002] 1 S.C.R. 297, [2002] S.C.J. No. 14, 2002 SCC 12, at para. 53.
[17] Whether an accused should obtain a remedy under s. 24(1) first turns on whether there has been a breach of the accused's Charter rights. Where the Charter violation lies in a delay in holding a bail hearing, ss. 7, 11(d) or 11(e) can be implicated. In R. v. Zarinchang (2010), 99 O.R. (3d) 721, [2010] O.J. No. 1548, 2010 ONCA 286, 254 C.C.C. (3d) 133, this court found that unreasonably prolonged custody awaiting the holding of a bail hearing violates s. 11(e) -- the right of any person charged with an offence not to be denied reasonable bail without just cause. In this case, a delay of 12 days before the appellant, with no prior record, could have his bail hearing was properly found by the trial judge to violate the Charter. Consistent with Zarinchang, this delay was a violation of s. 11(e). The difficult question is whether the trial judge erred in refusing to grant [page152] a stay of proceedings as a remedy under s. 24(1) because of this violation.
[18] Generally, there are two categories of abuse of process cases: cases in which the state conduct compromises the fairness of the accused's trial and cases in which the state conduct risks undermining the integrity of the judicial process. The appellant's case falls within the second, or residual, category. As the trial judge recognized, in cases within this category the court must consider three requirements to determine whether a stay of proceedings is warranted. These requirements are summarized in Babos, at para. 32, referring in particular to Regan:
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" (Regan, at para. 54);
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" (ibid., at para. 57).
[19] Where the accused relies upon the residual category, the first stage of the test requires the accused to show that the state has engaged in conduct that is offensive to notions of fair play and decency and that proceeding with the trial will be harmful to the integrity of the justice system. In Babos, Moldaver J. summarized this first requirement in these terms, at para. 35: "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".
[20] In this case, the trial judge found that this requirement was satisfied based on the practice direction that would necessitate an adjournment in every case where a bail hearing is more than two hours. On this appeal, there was some dispute as to whether there was such a practice direction but, on the evidence before him, the trial judge was entitled to make the finding that he did. In any event, little, if anything, turns on whether the practice direction actually existed. There can be no doubt that the justice of the peace believed that a special bail hearing was required, and remanded the appellant to custody on this basis. This state conduct is no less offensive to notions of fair play and decency in the event that it derived from [page153] a fictitious or misunderstood policy or practice direction, that could be implemented again.
[21] In my view, there was other evidence to support the trial judge's finding that the appellant satisfied the first requirement of the residual category. A number of circumstances that are not necessarily peculiar to this case could support the trial judge's finding. Accepting that a special guns and gangs Crown had to be available to do the bail hearing, the circumstances did not demonstrate a commitment to ensuring such a Crown would be immediately available. The Crown's conduct failed to take into consideration the need, especially for young persons, for an early bail hearing. As the trial judge said: "The fact that the declaration of principle in the Y.C.J.A. refers to special considerations which apply in respect to proceedings against young persons should compel all persons participating in the proceedings to guard against infringements."
[22] The trial judge also found that there was no alternative remedy capable of redressing the prejudice to the appellant's rights. The trial judge's concern was that at this stage of the proceedings, the only alternative remedy, a reduction in sentence, was not available since the appellant had not yet been convicted. There does not appear to have been any suggestion that some other remedy, such as costs, would appropriately deal with the infringement, as was discussed in Zarinchang, at paras. 67-71; and R. v. Brown, [2009] O.J. No. 3592, 2009 ONCA 633, 247 C.C.C. (3d) 11, at paras. 16-27. The trial judge rejected judicial condemnation of the abuse as an appropriate remedy. Although judicial condemnation of abuse may be an appropriate remedy in some cases, I cannot say that the trial judge erred in rejecting it in the context of this case. The need for expeditious bail hearings is reflected in s. 516 of the Criminal Code. The fact that, under this provision, no adjournment may exceed three clear days without the consent of the accused appears to have been ignored by the justice presiding on April 6 and, as pointed out by the trial judge, insufficiently pursued by counsel at that time.
[23] Damages might have been an appropriate remedy to deter future breaches of the right to a prompt bail hearing: see Vancouver (City) v. Ward, [2010] 2 S.C.R. 28, [2010] S.C.J. No. 27, 2010 SCC 27, at para. 29. However, since the trial judge was in the provincial criminal court, he had no jurisdiction to award damages: Ward, at para. 58.
[24] As is evident from his decision to consider the third requirement, the trial judge was obviously uncertain whether a stay was warranted. Although the trial judge did not articulate [page154] his reasons for this view, in my view the need for consideration of this third requirement was made out.
[25] First, it was not obvious that the state conduct was so troublesome that having a fair trial would leave the impression that the justice system condones the conduct: Babos, at para. 35. It appears that the bail hearing could have been heard on April 8, but for Crown counsel's schedule. There was no suggestion that a delay to April 8 after an arrest on April 3 for serious charges was unreasonable. Realistically, the violation occurred because of the delay to April 14, a further delay of six days. This was a breach of the appellant's rights, but it was not so obviously serious as to demand a stay of proceedings without considering the third requirement in Babos.
[26] Second, in Babos, at para. 41, Moldaver J. suggests that the third balancing requirement must always be considered for the residual category:
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.
[27] The appellant's submissions about the trial judge's treatment of the third requirement centred on his alleged overemphasis on the seriousness of the charges. In my view, the trial judge did not err. He considered all the relevant circumstances and his treatment of the seriousness of the charges as a factor was appropriate.
[28] It is apparent from the trial judge's reasons that he considered the relevant factors:
In [considering the third requirement] I am directed to look at the particulars of the case, the circumstances of the accused, the nature of the charges, and the broader interest of the community and having the particular charges disposed of on the merits. Any factor can be a deciding factor when doing a balance. I keep in mind that the young person has no record, that the bail hearing in this matter should have been fairly straightforward. . . . I'm saying it was a foregone conclusion that this young person was going to be released.
[29] The trial judge proceeded to deal with what he considered the most compelling aspect of the balancing test: "the nature of the charges and the broader interest of the community and seeing the charges disposed of on the merits".
[30] The trial judge's treatment of these factors is similar to the approach set out in Babos, at para. 41:
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 [page155] 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.
(Footnote omitted)
[31] In my view, the trial judge considered all the relevant factors. He was right to treat as important factors the seriousness of the charges and the broader community interest in having the charges disposed of on the merits. Absent an unreasonable conclusion, the weight to be attached to the various factors, including the seriousness of the offences, was a matter for the trial judge.
[32] The appellant submits that the trial judge gave undue weight to the seriousness of the charges. The appellant further submits that an analysis similar to that taken with exclusion of evidence under s. 24(2) should be adopted. I disagree. That approach is inconsistent with the approach taken by the Supreme Court of Canada. As the excerpt from para. 41 of Babos shows, the seriousness of the charges is a proper consideration. The balancing that takes place as a result places an onerous burden on the accused, as held in Babos, at para. 44:
Undoubtedly, the balancing of societal interests that must take place and the "clearest of cases" threshold presents an accused who seeks a stay under the residual category with an onerous burden. Indeed, in the residual category, cases warranting a stay of proceedings will be "exceptional" and "very rare" (Tobiass, at para. 91). But this is as it should be. It is only where the "affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases" that a stay of proceedings will be warranted (R. v. Conway, 1989 CanLII 66 (SCC), [1989] 1 S.C.R. 1659, at p. 1667).
[33] Justice Moldaver emphasized the importance of the nature of the charges when considering the application of the accused for a stay in Babos, at para. 69:
This balancing requires weighing the seriousness of the misconduct against the societal interest in having a trial. At this stage, the very serious nature of the charges facing the appellants -- 22 charges concerning firearms, illegal drugs, and organized crime -- looms large. Society has a profound interest in seeing justice done by having the guilt or innocence of the appellants determined through a full trial on the merits. When the impugned misconduct -- threats uttered more than a year before trial by a Crown no longer on the case -- is weighed against society's interest in a trial, I am satisfied that this is not one of the "clearest of cases" where the exceptional remedy of a stay of proceedings is warranted.
(Emphasis added) [page156]
[34] Undoubtedly, this appears to lead to inconsistent results depending upon whether the accused is applying for relief under s. 24(1) or (2). In accordance with the decisions in R. v. Grant, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32, 2009 SCC 32 and R. v. Harrison (2009), 97 O.R. (3d) 560, [2009] 2 S.C.R. 494, [2009] S.C.J. No. 34, 2009 SCC 34, the seriousness of the offence plays a much diminished role in the s. 24(2) analysis. The court described the seriousness of the offence as follows in the two cases, beginning with Grant, at para. 84:
It has been suggested that the judge should also, under this line of inquiry, consider the seriousness of the offence at issue. Indeed, Deschamps J. views this factor as very important, arguing that the more serious the offence, the greater society's interest in its prosecution (para. 226). In our view, while the seriousness of the alleged offence may be a valid consideration, it has the potential to cut both ways. Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)'s focus. As pointed out in Burlingham, the goals furthered by s. 24(2) "operate independently of the type of crime for which the individual stands accused" (para. 51). And as Lamer J. observed in Collins, "[t]he Charter is designed to protect the accused from the majority, so the enforcement of the Charter must not be left to that majority" (p. 282). The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.
In Harrison, the court held, at para. 34:
While the charged offence is serious, this factor must not take on disproportionate significance. As noted in Grant, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, the public also has a vital interest in a justice system that is beyond reproach, particularly where the penal stakes for the accused are high.
[35] The use of these different tests can appear to produce anomalous results. Under s. 24(2), where the seriousness of the offence is not to take on disproportionate significance, the evidence may be excluded, typically leading to an acquittal in most cases. Under s. 24(1) and the Babos test, a stay of proceedings -- the functional equivalent of an acquittal -- may be highly unlikely.
[36] These inconsistent results can only be explained because the courts are concerned with different interests. Under s. 24(1), there are a variety of remedies available, only some of which will lead to a stay of proceedings. A stay of proceedings is exceptional because it is intended to remedy conduct that was not used to [page157] obtain evidence but which nevertheless is such an affront to fair play and decency as to be disproportionate to the societal interest in the effective prosecution of the case.
[37] In contrast, s. 24(2) is concerned with the manner in which the evidence was obtained and with the single remedy of exclusion of the evidence. The tests from the Grant and Harrison cases require the court to consider, as the first inquiry, the seriousness of the conduct that lead to the obtaining of the evidence and, at the second inquiry, the seriousness of the breach from the perspective of the accused. The court is not considering whether the state conduct shocks the community's conscience, as under s. 24(1): Babos, at para. 41.
[38] Further, while both s. 24(1) and (2) engage the court in a consideration whether to dissociate itself from the impugned conduct, the focus is different. Under s. 24(2), the courts exclude the evidence, in part, because of the need to dissociate themselves from the fruits of the unlawful conduct: Grant, at para. 72. However, under s. 24(1), the court is not considering the fruits of the unlawful conduct; under the residual category, the evidence has been obtained and the charge can proceed through a fair trial. The court is not providing redress to accused for wrongs done to them: Babos, at para. 39.
[39] I have not been persuaded that the trial judge gave unreasonable emphasis to the seriousness of the charges. He weighed the various factors. That the case involved a 17-year-old who had no prior record and who would probably have been released had to be given considerable weight. However, some delay in the bail hearing was likely given the seriousness of the charges. The bail hearing itself took a day to be heard and then was adjourned to give the justice an opportunity to consider the decision. The lengthy delay before the bail hearing began was unacceptable, but it was open to the trial judge to balance all the relevant factors and decide that the case should proceed on its merits.
[40] I would not give effect to this ground of appeal.
B. The Reasonableness of the Verdicts
(1) The facts
[41] On the evening of April 2, 2011, around 9:00 p.m., the police began watching the appellant's home in preparation for executing a search warrant. At 10:40 p.m., they saw a light go on and off in the main floor bedroom. Then, 20 minutes later, a man left the house. The police stopped him and learned that he was D.P., one of the appellant's friends. Just after midnight, the [page158] Emergency Task Force ("ETF") executed the warrant. Inside the house was the appellant, his co-accused K.A., the appellant's mother and his four young siblings. After the ETF cleared the house, other officers searched its three floors. On the upper floor were three bedrooms and a bathroom. On the main floor was another bedroom, a kitchen and living room/dining room. The basement had couches, a television set and a lot of clothing. The entire house appeared cluttered and chaotic.
[42] The police found the firearms in a closet in the main floor bedroom, where the police had earlier seen the light go on and off. The closet had bi-folding doors, which were open when the search officers entered. The handgun was found inside a grey shoebox in clear view on a shelf. The handgun was loaded. Also inside the box was a plastic shopping bag containing ammunition, extra magazines, a set of handcuffs and an extendable baton. A loaded rifle was at the back of the closet leaning against a wall, behind hanging clothes, along with some bags and other clutter. The rifle was not visible looking directly at the closet with the doors opened. In the bedroom, the police found a backpack that contained personal effects and a prescription in the name of K.A. There was a Canadian passport in the dresser in the name of another person and some identification relating to three other people, including the appellant's cousin.
[43] The appellant's mother testified for the prosecution. The main floor bedroom belonged to the appellant and she rarely went inside it. She testified that she did not know there were other people in the house the night of the police raid, including the co-accused K.A. She arrived home from work around 8:00 p.m. and went upstairs to watch a movie with the younger children. Sometime between 8:30 and 9:00 p.m., the appellant had come upstairs, told her that he felt sick and went to sleep in his sister's room because it was closer to the bathroom. The appellant's mother checked on him several times and found him asleep in his sister's bedroom. She learned D.P. was present when he knocked on the bathroom door around 10:00 p.m. She went to the kitchen around 10:45 p.m. She testified that people could have come in or out of the house without her knowing.
(2) The reasons of the trial judge
[44] The trial judge found that the shoebox containing the revolver was in plain view of anyone using the closet. The closet contained clothing suitable for a young male. The trial judge inferred that the appellant knew of the storage of the weapons [page159] and consented to their being stored in the closet. He rejected the theory that one of the other young men stored the weapons in the closet while the appellant was asleep in his sister's bedroom. The weapons had to have been in the house before the police began surveillance at 9:00 p.m. If anyone else brought the firearms into the house, it would have to have been with the appellant's permission. He found as follows:
The speculation in which I have to engage is that the invitee brought these weapons into the house unbeknownst to the accused, knew that he would abandon control of his room by going upstairs to sleep, and then place the contraband in his closet without his consent. This is now nothing but conjecture. There is an entire lack of logic in this conclusion, because anyone wanting to hide weapons in someone else's house without their knowledge would not put them in plain view, as was the case here. Thus, I cannot conclude that the alternative possible conclusion is rational.
The only rational conclusion that can be drawn is that S.B. was in possession of the weapons and the ammunition. There will be finding of guilt on the 11 outstanding charges.
(3) Analysis
[45] In my view, the trial judge's conclusion that the appellant had possession of the weapons, ammunition and other contraband was supported by the evidence and is not unreasonable. The uncontradicted evidence was that these items were found in the appellant's bedroom. There was no basis for finding that the appellant's mother or his younger siblings had brought these items into the house. The other young men were present with the consent and permission of the appellant. It could be inferred that the clothing found in the closet belonged to the appellant and not any of his younger siblings. The rifle, as shown in photographs admitted at trial, is a large gun. The box containing the handgun was in clear view. As counsel for the respondent points out, these were not small items that could have been easily secreted by a casual visitor. These were large, dangerous goods in the appellant's bedroom that were easily visible to anyone with regular use of the closet. As trial counsel for the appellant fairly conceded, if the appellant went into the closet he could not miss them.
[46] The trial judge was entitled to reject the alternative theory that someone else had placed the materials in the closet without the consent of the appellant. It is not reasonable to believe that, without the appellant's consent, someone else would have had the opportunity to bring these items into the house and hide them in the appellant's bedroom. And, if they wanted to hide the weapons from the appellant, they would not [page160] have placed them in plain view of anyone, especially the appellant, using the closet.
[47] I would not give effect to this ground of appeal.
C. Disposition
[48] Accordingly, I would dismiss the appeal.
Appeal dismissed.
End of Document