ONTARIO COURT OF JUSTICE
DATE: 2025-05-02
B E T W E E N :
City of Toronto
— AND —
Najibullah Noori, Steven Maric, Y Be Abrahamovitz, Pamela Tebbs
Before Justice Rondinelli
Heard on March 10, 2025
Reasons for Judgment released on May 2, 2025
V. Pankou ............................................................................................... Municipal Prosecutor
Najibullah Noori attended in person
Nobody appeared for Steven Maric, Y Be Abrahamovitz, Pamela Tebbs
Introduction
[1] The City of Toronto brings this joint appeal against four separate respondents. Each respondent had their separate Highway Traffic Act (“HTA”) charges stayed by Justice of the Peace L. Muraca on July 31, 2024.
[2] The City of Toronto claims that the Justice of the Peace erred in imposing the stay of proceedings. As it will become central to these reasons, it is important to note that the Justice of the Peace appeared remotely via Zoom for the entire proceedings on July 31, 2024.
The Stay of Proceedings Entered by the Justice of the Peace
[3] Najibullah Noori was charged with an automated speed enforcement ticket under s. 128 of the HTA. Mr. Noori attended the courtroom in person. He required the assistance of an interpreter, who attended by Zoom. Before Mr. Noori was arraigned, the Justice of the Peace stated:
So the comments I need to put on the record, we are again experiencing audio problems. Mr. Interpreter has kindly acknowledged he’s having trouble hearing the defendant. The prosecutor – I’ve indicated by – I have trouble hearing the prosecutor. Also, when she talks the voice is not in sync. The gentleman is ready to proceed to trial. At this point the court is not going to entertain the trial due to the audio issue. I will put on the record that in the past I have proceeded with trials under these audio conditions, the defendants ordered the transcripts and the transcripts were compromised. The City of Toronto is well aware of these audio issues. I and other colleagues have written them regarding these issues and unfortunately they continue to persist….Madam Prosecution, you heard my comments, you can make submissions if you wish, and then I’ll deal with it.
[4] The prosecutor’s submissions were as follows:
In light of your comments, Your Worship, I mean in order to be fair for all the matters that you have today that might want to go to trial, I believe it is appropriate to have the matter adjourned to a later date where the matter can be dealt with where there are no technical difficulties.
[5] The Court then made the following ruling:
The court has taken them into consideration. The court also has to consider the continuing audio issues, the public interest given the nature of the charge. When the defendants come to the courtroom, they expect to have their matters dealt with in an appropriate manner, and I just want to make sure everybody understands these comments are not directed at the prosecutor, but the court is – it will not bring this matter back. The court is issuing a common law stay.
[6] Later that morning, Steven Maric’s matter was dealt with. Mr. Maric was charged with an automated speed enforcement ticket under s. 128 of the HTA and appeared in the courtroom in person. Before Mr. Maric was arraigned, the Justice of the Peace raised substantially the same issues with the audio and the prosecutor made the submission that “in the interest of justice of fairness to everybody else that pleaded today, the matter should go over to a later date.”
[7] The Court then ruled:
I should have commented on that before. It’s one thing – here’s the courts views. It’s one thing when somebody is pleading guilty and the court has to keep asking, as the record will show, numerous times the fine and the circumstances, but it’s a totally different thing when defendants want to have trials, transcripts may be ordered so in that case, sir, I’m going to issue a common law stay and the matter is stayed and you’re free to go, you have a good day.
[8] Shortly after, Y Be Abrahamovitz’s matter was dealt with. Mr. Abrahamovitz was charged with an automated speed enforcement ticket under s. 128 of the HTA and appeared by Zoom. Before he was arraigned, the Court made the following ruling:
The Court: This gentleman wants to have a trial today, the court has difficulty with the audio issues, it’s been confirmed by the interpreter on another matter, I’ve had trouble hearing the prosecution, court takes into consideration the public interest in proceeding with this matter or bringing it back. Do you wish to make any submissions as you’ve done before, Madam Prosecutor?
The Prosecutor: My submission is the same, I’m requesting that the matter come back on another date.
The Court: The court has taken that into consideration. Given all the factors in these continuing audio issues, no public interest in bringing the matter back, sir. The matter is stayed, you’re free to go.
[9] The fourth respondent, Pamela Tebbs was charged with a red light camera offence contrary to s. 144(18.1) of the HTA and attended the courtroom in person. Ms. Tebbs was arraigned, but as the trial began, the Zoom issues persisted. The Justice of the Peace halted the trial and made the following ruling:
Given what’s transpired today it’s not in the public interest to bring this matter back. Ms. Tebbs is ready to proceed to trial, we cannot reasonably accommodate her and once again the court’s expectation or standard is not one of perfection, it’s what is reasonable. It’s not reasonable to try to conduct a trial under these continuing conditions. The court is going to enter a common law judicial stay.
The Governing Principles
[10] The Justice of the Peace dealt with the charges before the court by way of a common law judicial stay purportedly for an abuse of process. The Supreme Court of Canada has long held that the power at common law to grant a judicial stay of proceedings for abuse of process has been merged under s. 7 of the Charter: See R. v. Nixon, 2011 SCC 34 at paras. 36-37. The law of abuse of process was recently summarized by the Supreme Court in R. v. Brunelle, 2024 SCC 3, where the Court held:
[27] The law on abuse of process is well settled. The “key point” is that abuse of process “refers to Crown conduct that is egregious and seriously compromises trial fairness and/or the integrity of the justice system” (R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 50). As the preceding passage suggests, two types of state conduct meet the threshold for establishing abuse of process: conduct that compromises trial fairness (“main category”) and conduct that, without necessarily threatening the fairness of the accused’s trial, nevertheless undermines the integrity of the justice system (“residual category”)…
[28] While there is no actual “right against abuse of process” in the Charter, different guarantees will be engaged depending on the circumstances (R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 73). Abuse of process in the main category engages the Charter provisions aimed primarily at protecting trial fairness for accused persons, namely ss. 8 to 14, as well as the principles of fundamental justice set out in s. 7. Abuse of process in the residual category, on the other hand, engages only the principles of fundamental justice in s. 7, which protect accused persons from any state conduct that, while not caught by ss. 8 to 14, is nevertheless unfair or vexatious to such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the justice system…
[11] Brunelle further affirms that a stay of proceedings will be ordered only where the situation meets the high threshold of being one of the “clearest of cases” which requires three conditions to be met:
there must be prejudice to the accused’s right to a fair trial or to the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome”;
there must be no alternative remedy capable of redressing the prejudice; and
where there is still uncertainty over whether a stay of proceedings 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”.
Analysis
[12] In my view, none of the defendants’ cases rose to the level of clearest of cases necessitating a stay of proceedings. First, there was no prosecutorial misconduct being alleged. Second, even if these cases fell within the realm of the residual category, no prejudice existed to the defendants’ right to a fair trial or to the integrity of the justice system. And as I will explain, if any prejudice did exist, there were alternative remedies capable of redressing it.
[13] It is clear that the hybrid conditions present in the courtroom on July 31, 2024 were less than ideal. Indeed, there is no question that technical difficulties have become more frequent in trial courts with the rise in Zoom use. Nevertheless, the public should expect conditions – whether attending a virtual courtroom or a brick-and-mortar courthouse – that would allow for a fair trial to proceed. In this regard, R. v. Gostick, [1991] O.J. No. 178 (C.A.) is of note. In that case, the trial judge stayed the proceedings due to the lack of air conditioning in the courtroom which had led jurors to complain about lack of proper ventilation. In overturning the stay, the Court of Appeal held at paras. 24-25:
[24] The physical surroundings in which our courts operate are manifestly important to the proper administration of justice. It is a matter of serious concern whenever judicial proceedings are conducted in accommodations that fall below acceptable standards so as to diminish respect for the legal system. This is particularly so when jurors, or others involved in the process, are caused inconvenience and personal discomfort as a result of such deficiencies. At the same time it must be recognized, as did the Supreme Court of Canada in R. v. Askov (1991), 59 C.C.C. (3d) 449, at p. 478 and p. 491, albeit in another context, that institutional and financial resources may, as a practical matter, compel that justice be dispensed in accommodations that are less than ideal.
[25] Assuming, as I am for the purpose of this argument, that the trial judge was not functus, the question before him in this case was whether the physical environment of the courtroom had rendered the jury incapable of carrying out its mandate thereby denying this respondent a fair trial. The trial judge’s views as to how and when the courtroom should be improved were irrelevant to this issue, as were the details of his complaints on the subject. He was obliged to consider only those facts that related to the specific case before him in determining whether to stay the prosecution against this particular respondent. The respondent’s trial was not the forum for debating the government’s funding priorities in refusing “to make any commitments [to air condition the courtroom] so long as other more serious problems exist in other parts of the Province”. Similarly, it was inappropriate for the trial judge to proceed on the ground that the “deliberate decision to deny remedial action by the State” required that the trial “be aborted by staying the proceedings”. He was required to determine whether the doctrine of abuse of process could properly be invoked in the trial of this particular case without regard to his personal views on the decisions taken by the government with respect to the courtroom.
[14] In my view, the Justice of the Peace committed a similar error in this case. The Justice of the Peace made sweeping comments about his past experience with Zoom and transcripts. However, the Justice of the Peace did not consider the individual circumstances of each respondent. It is important to note that none of the respondents made any complaint about the technical difficulties, nor did any of them raise concerns of proceeding with their trials on that date or at a future date.
[15] Technical difficulties are undoubtedly frustrating for all those involved in a trial. In this case however, there was a simple solution to the issues the court faced that day. The Justice of the Peace could have attended the courtroom in person as did the prosecutor and three of the respondents. That would have alleviated the audio issues the Justice of the Peace was experiencing over Zoom. If, for some reason, the Justice of the Peace was unable to attend in person on that particular date, he could have exercised his power under s. 83.1(4) of the Provincial Offences Act and ordered that the trials of the respondents proceed in person at a later date. I echo the view of the Court in Gostick at para. 28 that:
“[t]he administration of justice is better served by permitting the prosecution to continue in these circumstances rather than by staying the proceedings and thereby effectively acquitting the respondent.” [1]
Conclusion
[16] For all of the above reasons, I conclude that a stay for abuse of process was not an available remedy in the circumstances of the cases before me. However, as the City of Toronto has indicated that it does not wish to re-prosecute the respondents should the appeal succeed, I will leave the stays undisturbed and simply note that the Justice of the Peace erred in imposing a stay in each of the four matters under appeal.
Released: May 2, 2025
Justice V. Rondinelli
[1] The Justice of the Peace did allow other defendants that appeared before him on July 31, 2024 to return at a later date in order to give them time to prepare for their trials (Transcript, pp. 34, 36, and 44).