ONTARIO COURT OF JUSTICE DATE: 2023 05 26 COURT FILE No.: Central East - Newmarket 4911-998-22-91102397-01

BETWEEN:

HIS MAJESTY THE KING

— AND —

ALAELDDEIN ALHAJSALEM

Before: Justice N Dwyer

Heard on: May 11, 2023 Reasons for Judgment released on: May 26, 2023

Counsel: Jeanaha Kim, counsel for the Crown Tonya Kent and Chris Sewrattan, counsel for the accused Alaelddein Alhajsalem

Dwyer J.:

I. The Allegation Charge and Arrest

[1] On March 20, 2022, the Applicant Alaelddein Alhajsalem was arrested and charged with two counts of robbery with violence and two counts of disguise with intent.

[2] The allegations are that on March 19, 2022, the Applicant and his co-accused, Mr. Nouh Hareba, were driving a white Ford Edge. They allegedly approached the Complainant at a Petro Canada gas station and demanded and obtained his vehicle, a Range Rover, with the threat of violence. It is also alleged that both the Applicant and Hareba had disguised their appearance. The events at the Petro Canada gas station were captured on video surveillance.

[3] The next day on March 20, 2022, the police investigators located the suspects’ white Ford Edge close to Yonge Street and Highway 407 in Richmond Hill. The police watched the Applicant and Mr. Hareba following two high-end vehicles before following a silver Mercedes-Benz G-Wagon. It is alleged that the Applicant then followed the Complainant (the owner of the Mercedes-Benz G-wagon) on foot into a retail store and stole the Complainant’s car keys off the carabineer on his pants and fled. Mr. Hareba was arrested in the parking lot along with the Applicant. The key to the Range Rover from the March 19, 2022, incident was found on Mr. Hareba’s person.

[4] The Applicant was brought to Bail Court the next day, March 21, 2022. The Bail Court was virtual with the Applicant at One District Station, York Regional Police (YRP) by Zoom and counsel for the Applicant also by Zoom.

[5] The case was adjourned for two days to March 23, 2022. There were warrants outstanding for the Applicant in a few jurisdictions in the Greater Toronto Area that had to be sorted out. The charges faced by the Applicant were serious. As a result of those two factors, counsel for the Applicant and the Crown sought to put the case over for one day. However, it was adjourned for two days to March 23, 2022, at the suggestion of the presiding Justice of the Peace. The relevant exchanges in the Bail Court are as follows:

MS. KENT: Yes, that's stated correctly, Mr. Dale. So I would ask for him to come back tomorrow, because I just want to also figure out these bench warrants. Because obviously - I don't know if it's possible, but obviously, Mr. Alhajsalem is anxious to run a bail hearing, but obviously there are these warrants in Scarborough and Halton. So I want to try to get that figured out as well because I don't think it makes sense for Mr. Alhajsalem – I don't think it makes sense for him to go to three different places if it's possible [indiscernible] figure out bringing informations for it and running a bail in one, one shot. But I don't know if that's possible, but I'll figure it out. But if we can come back tomorrow, that would be greatly appreciated, and I'll take two - is the officer still there inside the room with Mr. Alhajsalem?.......

THE COURT: Yes. So they've asked it to be two days. There's just too much, there's just too much work for the CEC, and we're getting too, well we're getting backed up. So can we do it for two days? So come back on Wednesday?

MS. KENT: Okay. You know, I'll note that, but in my view, if I wanted him to come back tomorrow, he should, but I understand the court's position. So is that 104?

[6] On March 23, 2022, counsel for the Applicant appeared virtually, with the Applicant also present virtually, and asked for an adjournment to March 28, 2022. The basis for the request was that the protocol for getting a date for the bail hearing was being followed. Counsel explained that an email had been sent to the Trial-Coordinator to secure a date for bail. There was little hope of securing a date for March 24 or March 25; the request was for March 28 to confirm the hearing date. There was no complaint placed on the record about this step. There was an indication on the record that the Applicant had prospective sureties lined up and to that extent was ready to conduct a hearing.

[7] On March 28, 2023, the Applicant appeared virtually with his counsel and confirmed the bail hearing for April 8, 2022. The Applicant agreed to this date under protest, explaining that they were available on many earlier dates and that they may seek a remedy for the delay in the bail hearing. The exchange was as follows:

MS. KENT: Yes, good morning. So I'm, I'm — first of all, for the record, K-E-N-T, first initial T for the matter. So we are dealing with Mr. Alhajsalem and I've had some contact and I'd like to put some — basically, he's getting a bail hearing. In my view, the bail hearing is way too far out, so I am going to go ahead and put some comments on the record, Your Worship.

THE COURT: Okay.

MS. KENT: So in regards to, in regards to Mr. Alhajsalem, I sent an email on March 22, 2022, to schedule a bail hearing for his matter. I didn't hear back from the trial coordinator until I followed up on March 24, 2022, and was asked to fill out the forms for a special [indiscernible], since I have two sureties and one requires an interpreter. On March 25th, I completed my part of the form in the morning and the Crown completed their part at 10:47 a.m. and we did not hear back about setting a bail hearing. I followed up today, which is March 28, at 8:48 a.m. about a hearing date as I didn't hear back for the dates and was emailed back and told that the first available date is April 8th. On my form, I filled out I was available for March 29th, 2022, March 31st, 2022, April 4th, 2022, and April 5th, 2022. I was [indiscernible] the March 30th date due to other [indiscernible].

THE COURT: Counsel, you are breaking up a little bit so heard up to your availability up to April the 5th, and then we didn't hear after that.

MS. KENT: Okay. Is this better now?

THE COURT: I think it's because of the phone at the jail is also interfering. So...

MS. KENT: Okay.

THE COURT: ...please just repeat what you said after April 5th.

MS. KENT: Yeah, so what I said — I was just starting to speak anyways. So what I said is that I gave those available dates and none of those were offered as a bail date. The earliest I'm available is tomorrow. The trial coordinator's office has offered — the first date that they were offering as April 8th. In my view, this is eleven days away for a bail hearing. Mr. Alhajsalem is not consenting to this length of a delay in conducting his bail hearing, and on his behalf, I will likely, unless I do get an earlier date, file it at some point for a stay application. In my view, this is something that I've experienced in this courthouse before where once there's, you know, a special [indiscernible] of some sort, we have to schedule it, which is generally fine if it's scheduled within a reasonable amount of time, which is three days. But this is now 11 days and the days are going past the days that I had given as available dates to have this bail hearing. And frankly the co-accused in this matter — there is a co-accused on the Information, and I understand that the first available date that that person was offered was April 7th. So clearly, this is not just an issue in regards to Mr. Alhajsalem, this is something that has happened for both of the individuals in this matter. And again, I am not going to refuse the date because I can't run a bail hearing in front of Your Worship without being able to do so, but I am placing on record that we are not consenting to this adjournment. I am going to take the April 8th date because there is nothing else that I can do, but I am not accepting that date and I just want to put the court and the Crown on notice that I will be filing a stay application in the circumstances due to the [indiscernible] that's taken place. I just wanted to place those comments on record before we move forward.

[8] While waiting for his bail hearing the Applicant was in custody at the Central East Correctional Centre. He was quarantined for a few days at the facility, consistent with the COVID protocol at the time.

[9] The Applicant was released on bail on April 8, 2022, with Crown consent, after the prospective sureties testified. After his release the Applicant turned himself in on the other outstanding warrants and was released on a Promise to Appear in each case.

[10] The Applicant points to a special bail directive issued December 2019 containing a province-wide protocol for setting lengthy bail hearings. The directive aimed to create a province-wide protocol for the scheduling of special bail hearings and was to be effective January 15, 2020.

[11] The directive stated that Crown and defence counsel would consult, to determine a reasonable assessment of the time required for the bail hearing and other considerations. Counsel would then attend a bail hearing conference, in person or by telephone, before a Justice of the Peace regarding the need for a special bail hearing and reasonable time requirements. The conference would take place on the same day that the request for the bail hearing conference was made or on a date requested by counsel and agreed upon by the Judiciary. Counsel would then take a completed “Request for Special Bail Hearing Court” form to the trial coordinator. The Trial Coordinator would ascertain the availability of a courtroom, courtroom staff, and a Justice of the Peace for the date(s) identified and confirm the date on the form.

[12] The Applicant noted the Criminal Lawyers’ Association (CLA) response to this directive in which concerns were raised. In a letter to the Associate Chief Justice of the Ontario Court of Justice, dated January 9, 2020, the CLA warned that the “special bail” practice might have the effect of adjourning presumptively innocent individuals in custody beyond statutory and constitutional time limits. For example, although a three-day adjournment is the longest available wait an accused can be statutorily required to endure under section 516(1) of the Criminal Code, the “Request for Special Bail Hearing Court” form indirectly endorses the idea that an accused may be forced to wait longer than three days for their bail hearing when it asks for “3 or 4 possibilities” where all parties are available. The CLA noted that it is common for the Crown to respond with dates that are days or weeks in the future, and trial coordinators are often unable to schedule the hearing for the first available date of all parties considered in the form. Accused persons are left to wait in custody because judicial resources are not available earlier or the logistics of lining up schedules makes setting a timely hearing impossible.

II. Issue

[13] Was the 17-day detention between March 21, 2022 and April 8, 2022 a violation of sections 7, 9, and 11(e) of the Charter? The Applicant submits that there was a breach and seeks a stay of proceedings pursuant to section 24(1) of the Charter. The Applicant initially sought costs against the Crown but abandoned that request at the beginning of submissions.

[14] The Respondent concedes the breach of Charter section 11(e). The Respondent submits however that the remedy of a stay of proceedings is not appropriate. The Respondent submits that an appropriate remedy is a judicial admonition or a reduction of sentence if the Applicant is found guilty.

III. Law

[15] The issue in this Application raises some of the fundamental principles governing bail hearings. Those principles are a backdrop to the statutory framework and law that undergird bail applications.

A. Statutory Provisions

[16] A peace officer who arrests a person and does not release the person must take the person before a justice without unreasonable delay or generally within 24 hours. See Criminal Code of Canada section 503(1):

Taking before justice

503 (1) Subject to the other provisions of this section, a peace officer who arrests a person with or without warrant and who has not released the person under any other provision under this Part shall, in accordance with the following paragraphs, cause the person to be taken before a justice to be dealt with according to law:

(a) if a justice is available within a period of 24 hours after the person has been arrested by the peace officer, the person shall be taken before a justice without unreasonable delay and in any event within that period; and

(b) if a justice is not available within a period of 24 hours after the person has been arrested by the peace officer, the person shall be taken before a justice as soon as possible.

[17] Section 515 of the Criminal Code sets out the rules relating to release and tends towards releasing on bail for those charged with offences. This is evident at the start of this section. See Criminal Code section 515(1):

Release order without conditions

515 (1) Subject to this section, when an accused who is charged with an offence other than an offence listed in section 469 is taken before a justice, the justice shall, unless a plea of guilty by the accused is accepted, make a release order in respect of that offence, without conditions, unless the prosecutor, having been given a reasonable opportunity to do so, shows cause, in respect of that offence, why the detention of the accused in custody is justified or why an order under any other provision of this section should be made.

[18] Section 515 goes on to set parameters for detention and release and the types of conditions that can be imposed.

[19] Criminal Code section 516 sets rules for detention pending bail hearing, requiring consent of the detained person for remands greater than 3 days.

Remand in custody

516 (1) 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.

[20] The principle of restraint applies in applying the bail provisions of the Criminal Code as set out in section 493.1:

Principle of restraint

493.1 In making a decision under this Part, a peace officer, justice or judge shall give primary consideration to the release of the accused at the earliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances, including conditions that are reasonably practicable for the accused to comply with, while taking into account the grounds referred to in subsection 498(1.1) or 515(10), as the case may be.

[21] The Canadian Charter of Rights and Freedoms also deals explicitly and implicitly with bail in sections 7, 9 and 11(e)

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

8. Everyone has the right not to be arbitrarily detained or imprisoned.

9. Any persons charged with an offence has the right …… (e) not to be denied reasonable bail without just cause;

B. Case Law

[22] Common Law promotes the idea that bail hearings must support the presumption of innocence and must be held at the earliest reasonable opportunity.

[23] In R. v. Antic, [2017] SCC 27, Justice Wagner, as he then was, states in the first paragraph of the decision:

1 The right not to be denied reasonable bail without just cause is an essential element of an enlightened criminal justice system. It entrenches the effect of the presumption of innocence at the pre-trial stage of the criminal trial process and safeguards the liberty of accused persons……

And at paragraph 66:

66 It is time to ensure that the bail provisions are applied consistently and fairly. The stakes are too high for anything less. Pre-trial custody "affects the mental, social, and physical life of the accused and his family" and may also have a "substantial impact on the result of the trial itself": Friedland, Detention before Trial, at p. 172, quoted in Ell v. Alberta, 2003 SCC 35, [2003] 1 S.C.R. 857, at para. 24; see also Hall, at para. 59. An accused is presumed innocent and must not find it necessary to plead guilty solely to secure his or her release, nor must an accused needlessly suffer on being released: CCLA Report, at p. 3. Courts must respect the presumption of innocence, "a hallowed principle lying at the very heart of criminal law... . [that] confirms our faith in humankind": R. v. Oakes, [1986] 1 S.C.R. 103, at pp. 119-20.

[24] Many cases have passages similar to the comments by Justice Wagner in Antic.

IV. Analysis

A. Breach of Charter 11(e) Conceded

[25] Given the concession that the delay in the bail hearing was a breach of section 11(e) of the Charter, the only remaining issue is the determination of an appropriate remedy. The alleged breach of section 7 and section 9 of the Charter are subsumed in the concession on the Charter section 11(e) breach. The Respondent agrees that a remedy is appropriate, however they submit that it should be a reprimand or a reduction of sentence on a finding of guilt. The Applicant seeks a stay of proceedings. The stay being sought by the Applicant is for abuse of process under section 24(1) of the Charter under the residual category for a stay.

B. The Test for Stay

[26] In R. v. Babos, [2014] SCC 16, Justice Moldaver explains the test for a stay in the residual category. Prior to setting out the test Justice Moldaver states that a stay “is the most drastic remedy a criminal court can order” and that a stay is granted only in the “clearest of cases”. The test is as follows at paragraph 32 of Babos:

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).

[27] Further on at para. 38, Justice Moldaver clarifies the test:

……Where the residual category is invoked, however, and the prejudice complained of is prejudice to the integrity of the justice system, remedies must be directed towards that harm. It must be remembered that for those cases which fall solely within the residual category, the goal is not to provide redress to an accused for a wrong that has been done to him or her in the past. Instead, the focus is on whether an alternate remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward.

and further at paragraph 41:

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 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 [page326] 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.[5] Clearly, the more egregious the state conduct, the greater the need for the court to dissociate itself from it. 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.

[28] In R. v. Simonelli, 2021 ONSC 354, [2021] O.J. No. 190 (Superior Court), the Court dealt with a delay in holding a bail hearing. The questions to be answered are articulated in the following paragraphs and apply in this case:

3 Consideration of this Charter application must take in a broader perspective than the delays suffered by these Applicants. It requires an assessment of the overall delays in holding special bail hearings in Brampton and the collective impact of delays on accused persons. Do the bail delays in the past and extending into the future fundamentally undermine confidence in the integrity and reputation of the administration of justice? In one of the leading cases on systemic delays in bail hearings, the Ontario Court of Appeal in R. v. Zarinchang, 2010 ONCA 286, [2010] O.J. No. 1548 (Ont. C.A.), at para. 59 placed the integrity of criminal justice at the centre of the analysis:

When the problem giving rise to the stay application is systemic in nature, the reason a stay is ordered is to address the prejudice to the justice system from allowing the prosecution to proceed at the same time as the systemic problem, to which the accused was subjected, continues. In effect, a stay of the charge against an accused ... is the price the system pays to protect its integrity.

4 The question here is: To what degree has the integrity of the system been compromised by the systemic bail delays in Brampton? In evaluating whether an abuse of process worthy of a stay has occurred, the cumulative damage to the reputation of the system must be balanced against the public interest in prosecuting these two Applicants, both charged with very serious criminal offences. The proposed remedy of a stay can only be imposed in the clearest of cases and if the need to uphold the integrity of the system outweighs the public importance in this prosecution.

[29] The same broad perspective must be followed in analyzing the special bail practice in Newmarket Court.

[30] Early bail hearings are an important aspect of our system of justice and are an aspect of the presumption of innocence. See Simonelli, paras. 23-40, where Justice Harris reviews the Bail Reform Act, and the leading cases on this point. At paragraph 40, Justice Harris summarizes the authorities:

40 In summary, the authorities establish that the necessity of holding a bail hearing immediately following arrest and detention is a matter of constitutional magnitude. An accused's liberty and the presumption of innocence are at stake. When a bail hearing is delayed because of lack of resources or inefficient use of resources, the accused is denied bail without "just cause" contrary to Section 11(e). These are fundamental values at the very centre of criminal justice.

C. History of Delays for Bail Hearings in Newmarket and Other Regions

[31] Issues with delays in bail hearings are not new. In 2002, the problem was addressed by Justice Casey Hill in his decision on a certiorari application, brought for a delay in holding a bail hearing. See, R. v. Villota (2002), 163 C.C.C. (3d) 507; R. v. J. V., [2002] O.J. No. 1027.

[32] The case involved extensive evidence presented by the Applicant and the Intervenor Peel Criminal Lawyers’ Association. See paragraph 55:

55 The Peel Criminal Lawyers Association was granted leave to intervene in these applications. At the hearing, the intervenor filed extensive affidavit and transcript material in an effort to demonstrate the Association's experience with "the practice in bail courts in the Region of Peel and the issues surrounding Bail Committees and bail reform from 1997 to the present". The intervenor supports the respondents' position that certiorari is an inappropriate remedy in the circumstances.

[33] Justice Hill distilled the issue at paragraphs 66 and 67:

66 Where a person, arrested and detained for a bail hearing, is taken before the court within twenty-four hours of arrest (Code s. 503(1)), and the prosecution and the accused are prepared for a show cause hearing, a hearing should forthwith be held whenever possible. In a jurisdiction such as this, serving a population of nearly one million persons, bail courts run seven days a week. An arrested person should not face the prospect of having to, in effect, make an appointment for his or her bail hearing. Unjustified detention includes unreasonably prolonged custody awaiting a bail hearing. At page 13, the Report of the Criminal Justice Review Committee, supra, lamented the fact that, in some locations, Friday and weekend arrestees are held for show cause hearings the following Monday.

67 The routine adjournment of bail hearings other than at the request of the prosecutor or the accused (Code s. 516(1)), as "not reached" cases, is an entirely unacceptable threat to constitutional rights, a denial of access to justice, and an unnecessary cost to the court system: The Law of Bail in Canada, supra at 199; Report of the Criminal Justice Review Committee, supra at 13-14. We must remain vigilant not to lapse back into the pre-Charter regime described in 1965 in the Report of the Royal Commission Into Civil Rights (the McRuer Report), Vol. 2, page 743:

There appears to be a widespread indifference to the injustice done to accused persons by reason of unnecessary incarceration pending arraignment.

[34] Closer to home the issue was litigated in a case that originated in Newmarket, R. v. Zarinchang, 2010 ONCA 286. At para. 44, the Court discussed the right to a prompt bail hearing.

[44] The Crown's position also fails to recognize the right of an accused to a prompt bail hearing and the responsibility of the Crown to see that it happens.

[35] Further, the Court in Zarinchang found that an evidentiary foundation had been laid to demonstrate a systemic problem. See paragraphs 45-47

[45] In our view, there was more than sufficient evidence to support the trial judge's finding of systemic delay. On April 3, 2007, there were other cases that were given priority to this case. On April 12, 2007, the justice of the peace observed that "there are some other persons that have been in custody as long perhaps, even longer than he has". On April 17, 2007, the justice of the peace said, "[Y]ou have heard me say it before, that it really isn't an appropriate state of affairs but we don't have the time to deal with the matters that come before us."

[46] The trial judge also considered that the Crown Attorney for the region was sufficiently concerned about the systemic problems that he established a committee to address the issue. In addition, the trial judge considered the evidence concerning the number of bail courts in York Region compared to other regions in the Greater Toronto Area. York Region had one-half the weekly bail courts of Peel, which had roughly the same population and proportionately fewer bail courts than Toronto or Durham Region. All of this evidence supported the trial judge's [page733] conclusion that there was a very significant problem of systemic delay in York Region in the hearing of bail applications.

[47] In the case at bar, the respondent was in court with his sureties and ready to proceed on April 1, 3, 12 and 17. The system failed him. This failure constituted a serious violation of the respondent's constitutional rights.

[36] In R. v. Jevons, 2008 ONCJ 559, a case from Durham Region, the court issued a stay for a delay of 8 days in holding a bail hearing. The court had evidence from other bail hearings in the jurisdiction. See para. 14

14 The Defendant provided transcripts of his appearances in court during the period in question. At his request, I ordered that the following additional transcripts be produced:

Transcripts of all comments made in any courtroom at 242 King Street on August 2, 3, 7, 8, and 9, 2007 with respect to bail matters, except the testimony of witnesses, submissions on contested hearings, and decisions on bail matters. That is, any comments that deals with the management of the daily docket and shed light on why bail matters were not reached and/or adjourned. This is not limited to the bail courts but also to trial courts where other judicial officers may have been assisting in bails.

D. Recent Examples in Newmarket Court

[37] The Applicant presented three recent examples of cases in the Newmarket Court where bail hearings were adjourned for lack of court space. The Applicant makes the submission that, a year after the issues with the Applicant’s bail hearing, there are still bail hearing delays at Newmarket Court, for lack of court space.

[38] Alvaro Figeuroa Loreto appeared in Newmarket Bail Court on Friday, February 3, 2023. The Crown bore the onus to show cause for detention. The Crown acknowledged that it could not show cause; it was prepared to ‘consent’ to release provided that there was, among other things, a condition requiring a non-residential surety. Mr. Figeuroa, Loreto’s counsel requested a bail hearing so that Mr. Figeuroa Loreto could obtain a less onerous form of release. The bail court declined to conduct a bail hearing if release was contested:

THE COURT: Well, my concern is this, it's five to 4:00. My staff has not had a recess. Means the earliest we could come back would be about 4:15. I am not prepared to start a hearing at 4:15, Mr. Goldglass. So, I can adjourn this to Monday in 104 Court, if you'd like.

MR. GOLDGLASS: Yes, please.

THE COURT: Okay. So be it. So, Sir, I apologize, we got taken up for a large part of this afternoon with something that we were not expecting, and unfortunately, I do apologize, but the timing is what it is, so I am going to adjourn your matter then, Sir, to Monday, February 6th, 2023. It will be back in this court, which is Courtroom 104, for your hearing you will be brought in person. Thank you, Sir.

[39] On February 1, 2023, Gimena Ayala appeared in Newmarket Bail Court. Ms. Ayala was a vulnerable person. She was connected with the Elizabeth Frye Society and CAMH. Her counsel had secured a bed for her that she could obtain only if she was released that day. The bail court could not deal with her contested bail hearing until the end of the day. The Crown advised that the contested hearing would consist of submissions only. It would take 15 minutes to summarize the evidence and 7 minutes for the Crown’s submissions. The Court instead adjourned the matter:

THE COURT: You know what, it's 4:30. There's not enough time to properly deal with this matter. So it's – tomorrow is the earliest day we can bring this back.

[40] Zabie Azizy appeared in bail court on Monday, January 23, 2023. It was not his first appearance, and it was his onus to show cause for release. Mr. Azizy had private counsel and two potential sureties lined up. Mr. Azizy’s bail hearing did not commence for a variety of reasons, including because the bail court was concerned that a special bail hearing may be required. Mr. Azizy’s bail matter was adjourned for one day, to Tuesday. However, the bail court ordered that Mr. Azizy return by video for a ten-minute appearance, making it impossible for a bail to occur on Tuesday. The earliest that Mr. Azizy would be able to conduct his hearing would be two-days later, on Wednesday. Mr. Azizy conducted a bail hearing on Wednesday. He was released. At some point during the bail hearing, the Crown consented to his release.

E. The Special Bail Hearing Procedure Affected the Applicant

[41] The Special Bail Hearing procedure at the Newmarket Court affected the Applicant. He was arrested on March 20, 2022 and was brought to the Newmarket Bail Court on March 21, 2022. The Applicant agreed to a one-day adjournment, but eventually acquiesced to a two-day adjournment to March 23, 2022. He was ready to conduct his hearing within 2 days of his arrest. On March 23, 2022, the Applicant followed the protocol for setting a special bail hearing and had no choice but to wait to be given a date. This required an adjournment to March 28, to wait for a date to be assigned by the Trial-Coordinator. On March 28, 2022, the Applicant was adjourned to April 8, 2022, for the bail hearing.

[42] In an Affidavit sworn May 11, 2023, the Deputy Crown Attorney in the Newmarket Crown’s Office described the bail hearing situation in Newmarket Court during this period. In the transition from the COVID period more in-person bail hearings were being done to avoid problems of access due to limits of partly video hearings. The following excerpt from the Affidavit fairly explains the situation

5. Accordingly in late March and early April 2022 the Local Administrative Justice of the Peace instituted a “bail conference” system and all hearings estimated to take more than 3 hours were to be set as “Special Bail Hearings” and were to be held in person with the accused being brought to the courthouse and all counsel attending in person unless permitted to appear virtually by the presiding Judicial Officer. This initiative had the effect of eliminating the issue of reserving video time for the accused at the CECC but also necessitated an additional physical courtroom in which the hearing could take place beyond the two courtrooms utilized daily for bail in Newmarket.

6. Around the same time the number of “in person” courts were increasing in the Ontario Court of Justice and Superior Court of Justice, and it became difficult at times to find a physical courtroom in which a Special Bail hearing could be held. The dates being offered by the Court were often a week or more into the future.

7. I understand that in the case of Mr. Alhajsalem, when he sought to set a special bail hearing on March 28, 2022, the first date upon which the hearing could be accommodated by the Court was April 8, 2022.

8. By late June 2022 I noticed an unusually high number of special bail hearing requests. These hearings were being scheduled with significant delays due to lack of physical courtroom space and I raised concerns with the Local Administrative Justice of the Peace about these delays. I also invited counsel on at least one case in June 2022 to simply adjourn their Special Bail Hearing into the regular contested matter bail court as opposed to taking the date offered by the Court that was well beyond Simonelli limits. Some counsel did not object to these delays as they had issues with their own availability or the availability of sureties.

9. On July 6, 2022, I asked that a meeting be held regarding this issue with the Local Administrative Justice of the Peace and the court administration in order to explore options for eliminating these delays for Special Bail hearings.

10. I advised the Local Administrative Justice of the Peace and the court administration that the Crown would be objecting to special bail hearings being scheduled more than three days in the future and that our position would be that even bail hearings of more than three hours should be heard in the regular bail courts. It was the Crown’s view that there was sufficient availability in the regular bail courts to accommodate longer bail hearings within a Simonelli compliant time and the Crown would prioritize those cases.

11. Meetings were held over the next two weeks involving the Crown, the Local Administrative Judge, the Regional Senior Justice of the Peace, the Local Administrative Justice of the Peace and representatives of other stakeholders including the court administration.

12. Through the cooperation of a number of stakeholders including the court administration and the York Regional Police a new plan was developed where Special Bail Hearings could be conducted entirely virtually without the need for an additional physical courtroom. The accused would be brought to the courthouse but appear from a video suite in York Regional Police cells on the 3rd floor. Court staff would sit in a conference room and other participants would appear by Zoom.

13. Since this new initiative was put into effect in late July 2022, I am unaware of any significant delays in the dates offered by the Court for Special Bail Hearings. I am copied by email on all the Special Bail requests and attempt to monitor the dates offered by the Court.

[43] While the Courts in Ontario, including Newmarket Court were affected by the COVID-19 Pandemic, the delay in this case was not related to the Pandemic effects.

F. There was a Systemic Problem

[44] The breach of the Applicant’s right not to be denied reasonable bail without just cause has been admitted. It is apparent from the evidence that the problem was not isolated. It was the result of systemic issues. The bail hearing was delayed in the ordinary course as the protocol for setting a special bail hearing was followed. Any person detained at the time, facing a bail hearing with a degree of complexity, was bound to follow the same procedure.

[45] Corrective steps were taken in the months that followed that appear to have improved the situation, as expressed in the Deputy Crown Attorney’s Affidavit. The recent examples cited by the Applicant demonstrate that the problem is not completely solved.

[46] The history of problems with delays in bail hearings in Brampton Court, set out by Harris J. in R. v. Simonelli, show the extensive evidence that was advanced to support the defence argument. See paragraphs 57-93. There was a random survey of 60 cases from the bail court in Brampton in 2019. Transcripts were ordered for those cases and the proceedings were analyzed. Information by the Intervenor Peel Criminal Lawyers’ Association was also presented. In Villota, another Brampton case, Justice Casey Hill relied on statistical information about bail delays in Ontario for the year 2003.

[47] The evidence in this case is not as extensive. There are the examples of the three cases from 2023 and the Affidavit of the Deputy Crown, along with references to cases from other Courts in the Greater Toronto Region.

G. What is the Appropriate Remedy

[48] I will now consider the remedy to be imposed for the breach found in this case. As stated earlier, the test to be applied is articulated in R. v. Babos. Abuse of process falls into two main categories. In the first category are cases where the misconduct affects the fairness of trial. In the second or residual category are cases where the fairness of trial is not affected but the integrity of the process is affected. See R. v. Babos at paras. 30-47. This case falls into the residual category as the delay in the bail hearing will have no impact on the fairness of trial.

[49] The test in Babos is set out under the heading The Test For Stay herein. In summary: 1. Prejudice; 2. No adequate alternative remedy for the prejudice; and 3. In the residual category a balancing of denouncing the misconduct and preserving the integrity of the system against a trial on the merits.

[50] I have already concluded that there were systemic issues causing delays in the Newmarket Bail Court. These problems are long standing, as far back as the Zarinchang case in 2010. Further, the problems are not unique to any one region in Ontario. Examples of the same problems in Peel, Oshawa and Toronto have been referred to.

[51] As the Court of Appeal made clear in Zarinchang the Trial Judge must go through the process of balancing set out in Babos. See Zarinchang paragraphs 59-63, Babos paragraph 41, and Simonelli paragraphs 109 and 110. I will set out the reference in Simonelli:

109 There was some suggestion in Raffaele Simonelli's factum that there is no need for the balancing test from step 3 of Babos. I disagree. Balancing is always required with a residual category case. The Court of Appeal sent back Zarinchang precisely because the trial judge had not gone through the balancing required and had not considered the societal interest in prosecuting the case on its merits: see paras. 59-63. In Babos, Justice Moldaver specifically approved of Zarinchang in this respect at para. 43. Reference should also be made to the last line of para. 41 in Babos: "But in residual category cases, balance must always be considered."

110 To paraphrase on the critical issue of balancing, the question is whether the price of a stay on these very serious charges outweighs the gain to the administration of justice and the public: Zarinchang, para. 60; Babos, at para. 43. 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] 1 S.C.R. 1659 (S.C.C.) at p. 1667.

[52] I must balance the seriousness of the charges and the desirability of a trial on the merits against the obvious breach and its effect on the Administration of Justice. The charges are very serious with potential for penitentiary sentences. The alleged offences strike at the sense of security people in the community are entitled to when doing the mundane in everyday life. In this case the allegation is that people were stalked and attacked while doing mundane things. This reality is the weight on one side of the scale.

[53] On the other side of the scale is the pervasiveness of the problem. I have set out the importance of timely bail hearings as a pillar of our criminal justice system. It is a part of the presumption of innocence. Statutory provisions on permissible delays in bail hearings are consistent with this. Case law supports it in clear terms. In spite of this, the problem persists. Each time there is a problem the system reacts only to have the problem happen again.

[54] Finally, the facts of this case are clear. There was a flagrant breach of the Applicant’s Charter 11(e) rights. The Applicant was ready for his bail hearing on March 21, 2022, within 2 days of his arrest. His bail hearing was held on April 8, 2022, about 16 days later, and resulted in a consent release.

[55] I have concluded that a stay of proceedings is warranted. This was a clear case of a delay caused by a systemic issue. Resources were not available to accommodate the hearing. The Trial-Coordinator was limited in what could be offered and gave the first available date. The resource allocation was not under her control. This strikes at a fundamental aspect of our Criminal Justice System. The persistence of this problem cannot be tolerated.

[56] A reprimand or some mitigation of sentence, should the Applicant be convicted, are not adequate remedies in the circumstances.

V. Conclusion

[57] The Application is allowed and a stay of proceedings is entered.

Released: May 26, 2023 Signed: Justice N.B. Dwyer