ONTARIO COURT OF JUSTICE

DATE: 2023 01 09 COURT FILE No.: Brampton 3111 998 19 30739

BETWEEN:

HIS MAJESTY THE KING

— AND —

RAMEZ CHEEMA

Before: Justice G.P. Renwick Heard on: 09 January 2023 Reasons for Judgment released on: 09 January 2023

Counsel: C. Coughlin, counsel for the Crown A. Abbey, counsel for the Defendant Ramez Cheema

RULING ON SECTION 24(1) CHARTER APPLICATION

RENWICK J.:

INTRODUCTION

[1] The Defendant has brought an Application prior to his trial on firearms charges for relief based on an alleged violation of his rights under ss. 7, 9, and 11(e) of the Charter.

[2] Essentially, on the date that the Defendant was prepared to conduct his bail hearing, the court was unable to accommodate the hearing and the matter was adjourned. This adjournment meant that the Defendant was required to spend another two nights in custody before he ultimately received bail. [1]

[3] As part of this Application, the Defendant initially sought the remedy of a stay of his charges. Upon receipt of the prosecutor’s responding materials, the Defendant’s view changed. During the argument, the parties suggested that if a Charter violation is found, it is likely that a sentence reduction will be sought as the appropriate remedy.

[4] The parties do not disagree about the law. This Application is about the applicability of the law to the facts of this matter.

GENERAL PRINCIPLES

[5] Given the importance of individual liberty and the presumption of innocence to our system of justice, the value of timely and fair bail hearings cannot be overestimated.

[6] Section 11(e) of the Charter states: "Any person charged with an offence has the right... not to be denied reasonable bail without just cause". This right creates an entitlement to judicial interim release unless there is just cause to do otherwise.

[7] The protections offered by s. 11(e) of the Charter were clearly articulated by Iacobucci J., in dissent in R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309 (S.C.C.) at para. 47:

At the heart of a free and democratic society is the liberty of its subjects. Liberty lost is never regained and can never be fully compensated for; therefore, where the potential exists for the loss of freedom for even a day, we, as a free and democratic society, must place the highest emphasis on ensuring that our system of justice minimizes the chances of an unwarranted denial of liberty.

[8] The Criminal Code provides guardrails to litigants and courts to ensure the timeliness of bail hearings. At the front end, s. 503 requires that detainees who are not released by the police are to be taken before a justice, where one is available, within 24 hours of their arrest, or, as soon as possible where no justice is available within that timeframe. Section 516 of the Code also ensures the timeliness of a bail hearing:

A justice may, before or at any time during the course of any proceedings under section 515, on application by the prosecutor or the accused, adjourn the proceedings and remand the accused to custody in prison by warrant in Form 19, but no adjournment shall be for more than three clear days except with the consent of the accused.

[9] Some cases have attempted to express the contours of the law when bail hearings are not conducted in a timely way:

In R. v. Brown, [2007] O.J. No. 2830 Nordheimer J., as he then was, at para. 25 framed the nature of the Charter breach as a failure of the Crown to ensure a bail hearing at the first opportunity when the Defendant was prepared to conduct one;

In R. v. Zarinchang, 2010 ONCA 286 the court spoke about “Unreasonably prolonged custody while awaiting a bail hearing…” (para. 39) as implicating s. 11(e) of the Charter [my emphasis];

R. v. Villotta (2002), 163 C.C.C. (3d) 507 (S.C.J.) where the court held that cases not being reached was “an entirely unjustified threat to constitutional rights…” (para. 67); and

Also, R. v. B.(S.), 2014 ONCA 527, where there did not seem to be any dispute over the fact of the breach, just the appropriate remedy (see para. 9).

FACTS AND ANALYSIS

[10] Initially, the Defendant had adjourned his bail hearing to retain private counsel. On the next date, 22 October 2019, the Defendant appeared with his counsel and two sureties, ready to proceed. Indeed, it appears that the prosecutor was also prepared to proceed, but only if the matter would conclude that day.

[11] The Defendant, through counsel, agreed to call only one proposed surety to ensure that the matter would be completed within two hours, to avoid being deemed a “lengthy” or “special” bail hearing, which would require being set by the Trial Coordinator. The record is clear that if the matter proceeded as a “lengthy” bail hearing, the first available date was 4 weeks away.

[12] The justice of the peace who initially heard submissions in bail court about the time required to hear the matter agreed that the matter could possibly be heard within two hours and the Defendant could wait to see if his matter could be reached.

[13] At some point late in the afternoon, the matter was traversed to a judge’s court that was offering assistance to the bail courts.

[14] The matter was addressed around 4:00 p.m., according to the reference to the time made by Her Honour. Given the hour, and the uncertainty that the bail hearing could conclude that day, the court was not prepared to hear the matter.

[15] I find that both the prosecutor and the Defendant were ready to proceed on 22 October 2019, and but for the unavailability of the court, the matter would have proceeded and concluded on that day. [2]

[16] The court suggested adjourning the matter for one day. Counsel for the Defendant was only available to conduct the hearing if it would occur the following morning. It should also be noted that there was no certainty that the matter would proceed the next day, but that date was offered to the Defendant. In the circumstances, the Defendant sought a two-day remand, in order to ensure that his counsel and his surety would be present for his bail hearing, even if it took all day to be reached.

[17] The bail hearing was held and concluded on 24 October 2019. The Defendant was released.

[18] For the following reasons, I am not satisfied on a balance of probabilities that a breach of the Defendant’s ss. 7, 9, and 11(e) rights has been established in all the circumstances (in no particular order):

i. There is no evidence that the bail court(s) could have otherwise accommodated the Defendant’s bail hearing on 22 October 2019 but failed to do so; ii. The adjournment of the Defendant’s bail hearing was not requested by the prosecution; iii. It is obvious on the record that all parties (the litigants and the court) were trying to accommodate holding a bail hearing for the Defendant on 22 October 2019 despite the uncertainty of the time required to conduct the hearing; iv. The matter had already been adjourned once at the Defendant’s request; v. The first adjournment (to 22 October 2019) was not the first available date offered to hold the bail hearing after the Defendant’s first appearance; [3] vi. The Defendant chose to forego 23 October 2019 as an alternative date when his hearing could not be reached on 22 October 2019; [4] and vii. There were no breaches of either s. 503 or s. 516 of the Code in bringing the Defendant before the court or in scheduling his bail hearing.

[19] I agree with the Defendant that s. 11(e) of the Charter includes consideration of the timing of the bail hearing. It is certainly unfortunate that the Defendant’s bail hearing could not be accommodated on 22 October 2019.

[20] However, in the circumstances, and despite the inability to reach the Defendant’s matter on the first date when he was prepared to conduct a contested show cause hearing for release, I am not satisfied that his constitutional rights were abrogated or violated.

[21] The system is an imperfect one, but perfection is not a standard recognized in our constitution or our criminal justice system. Here, it was reasonable to seek to hold the bail hearing on the first date when the Defendant was prepared to conduct the hearing. When that did not occur, the next day was an available option to minimize the loss of liberty and the inconvenience to all.

[22] The Defendant cannot be faulted that it made more sense to his counsel and the proposed surety to adjourn the matter for two days, rather than taking a chance that the bail hearing could be heard the very next day. However, in the circumstances, given the length of time it was estimated to take (and ended up taking), and the fact that it was only adjourned as “not reached” on one occasion, I am not persuaded that there has been any constitutional infringement of the Defendant’s rights.

[23] Bail courts are under stress in this region. This is perhaps no less true today than when the Defendant first sought bail in October 2019. That fact alone, nor the inability to run bail courts 24 hours a day necessarily implicates the Charter.

CONCLUSION

[24] I am not satisfied on a balance of probabilities that any breach of the Charter has been made out. Accordingly, the Defendant’s Application is dismissed.

Released: 09 January 2023 Justice G. Paul Renwick

[1] To be clear, the Defendant, through counsel, suggested a two-day adjournment rather than returning the next day to accommodate counsel’s schedule and the surety’s work arrangements. [2] The bail hearing took one hour and 45 minutes to conclude on the next appearance. [3] The Defendant was offered 21 October 2019 and chose 22 October instead. [4] To be clear, I have not penalized the Defendant for initially seeking a longer adjournment than necessary or for refusing to accept the adjournment of his bail hearing to be heard on 23 October 2019. These facts are mentioned merely as part of the overall contextual landscape of my decision.