Court Information

Date: October 3, 2020

Ontario Court of Justice Central West Region Brampton, Ontario

Between:

Her Majesty the Queen

-and-

Darshan Dhaliwal (No. 2)

Reasons for Judgment

Duncan J.

Background

[1] The defendant is now charged on one information with two counts of fraud over. This is an application to stay proceedings on those charges for abuse of process.

[2] The background is detailed in my earlier ruling dated September 24, 2020 dealing with an application to stay under section 11(b) of the Charter, trial within a reasonable time.

[3] To briefly recap: The defendant was first charged in February 2017 with a single count of fraud over. Other similar charges arose over the next several months. Originally on separate informations, they were re-laid as a single 7 count information, each count relating to a separate named complainant. Later, when another complainant came forward, a new 8 count information in identical terms was laid. Finally, when the first trial date was being re-scheduled, a new single count information charging that the defendant did "defraud the public" was laid. It was understood that this omnibus allegation embraced all allegations included in the former 8 count information – and no more.

[4] The Crown made it clear that it intended to proceed to trial only on this consolidated single count information. However, the 7 and 8 count informations were never withdrawn. Instead they rode along with the consolidated information toward the trial date. Despite the Crown's intentions, the trial was nominally set to be held on all informations still before the court.[^1]

[5] By agreement, the 11(b) application was dealt with in writing. While it dealt only with the consolidated single count information, the parties dealt with the 11(b) calculations applicable to each of the allegations as if they remained as separate counts.[^2] In my reasons I found that all but the two most recent allegations were beyond 11(b) tolerance and the only available remedy was to stay the single consolidated count, notwithstanding that the more recent allegations were Charter compliant.

[6] The Crown now seeks to proceed to trial on those two surviving counts as they appear on the 8 count information (18-8394) that is still before the court.

Issue Estoppel

[7] The defence first argues that the doctrine of issue estoppel bars the Crown from proceeding in this way. I disagree. The doctrine is limited in scope to preventing the Crown from seeking to relitigate an issue or establish a fact that contradicts a finding made in the accused's favour in an earlier proceeding. R. v. Mahalingan, 2008 SCC 63.

[8] In this case, no issue relevant to the charges and information before the Court was decided in the defendant's favour in the 11(b) ruling. What was decided was that the single count in the consolidated information must be stayed because it was not divisible according to the allegations it contained. But if so parsed, the more recent specific allegations now before the Court were specifically found NOT to be in violation of the Charter. The only relevant finding was not found in the accused's favour. Therefore, issue estoppel cannot apply.

Abuse of Process

[9] The law respecting abuse of process was authoritatively summarized by the Supreme Court of Canada in R. v. Babos, 2014 SCC 16:

A. Abuse of Process and Stays of Proceedings

30 A stay of proceedings is the most drastic remedy a criminal court can order (R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 53). It permanently halts the prosecution of an accused. In doing so, the truth-seeking function of the trial is frustrated and the public is deprived of the opportunity to see justice done on the merits. In many cases, alleged victims of crime are deprived of their day in court.

31 Nonetheless, this Court has recognized that there are rare occasions - the "clearest of cases" - when a stay of proceedings for an abuse of process will be warranted (R. v. O'Connor, [1995] 4 S.C.R. 411, at para. 68). These cases generally fall into two categories: (1) where state conduct compromises the fairness of an accused's trial (the "main" category); and (2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the "residual" category) (O'Connor, at para. 73).

32 The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:

(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" (Regan, at para. 54);

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

(3) 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).

33 …….

34 Commencing with the first stage of the test, when the main category is invoked, the question is whether the accused's right to a fair trial has been prejudiced and whether that prejudice will be carried forward through the conduct of the trial; in other words, the concern is whether there is ongoing unfairness to the accused.

35 By contrast, when the residual category is invoked, the question is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution of offences. At times, 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. This harms the integrity of the justice system. In these kinds of cases, the first stage of the test is met.

[10] In my view the defendant cannot bring himself within either category.

[11] There is no prejudice to the fair trial interests of the accused. He is facing trial on exactly the same charges as he has always faced. Far from being prejudiced in his defence, he has been advantaged in having the case against him and his potential jeopardy considerably diminished by the turn taken in the case. He can be assumed to have been ready to make full answer and defence to the much wider allegation as it stood before the 11(b) ruling and must equally be assumed to be ready and unhampered in defending the lesser case.

[12] As for the residual category, I am far from satisfied that there is anything in the circumstances that would offend society's sense of fair play or diminish the integrity of the justice system. There is no bad conduct on the part of the Crown. At worst it sought to simplify the charging document and trial and was tripped up by a novel twist that had ramifications that neither party foresaw or anticipated. In my view society would be offended and the integrity of the justice system would be adversely affected if what amounts to little more than an error in the drafting of pleadings prevented the Crown from proceeding to try the merits of the remaining charges.

[13] Having found that neither category applies, it follows that alternative remedies need not be considered since no harm has been done to either protected interest and no remedy is required. Further, it is unnecessary to engage in a balancing since there is nothing favouring a stay to balance against competing interests.

[14] The application for a stay based on abuse of process is dismissed.

October 3, 2020

B Duncan J.

J Heller for the Crown

M Sodhi for the defendant

Footnotes

[^1]: None of the informations were endorsed for trial. But the trial verification sheet completed by the parties and the trial coordinator lists all the informations as being included. To complicate matters, there is a typo on that sheet erroneously substituting a 3 for an 8 in the number of the information in question.

[^2]: Because those counts had separate charge dates they had different periods of total delay and potentially different 11(b) outcomes.

[^3]: All other counts on the information have been stayed by application of the Court's earlier ruling on 11(b).