SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 11059
DATE: 2013/01/22

RE: Her Majesty the Queen v. Marko Maric

BEFORE: Justice A.W. Bryant

COUNSEL:
D. Rows, counsel for the Crown,

Gary Grill and Kendra Stanyon for Mr. Maric

HEARD: November 15 & 16, 2012

ENDORSEMENT

I The Application

[1] The Applicant seeks a stay pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, on the ground that his rights under ss. 7, 9 and 11(e) were violated. The basis for the stay application was the delay in completing the accused’s bail hearing in a timely manner. Counsel for the Applicant submits that the Justice of the Peace and an assistant Crown Attorney wilfully breached the Applicant’s Charter rights.

II The Alleged Offence

[2] The Crown alleges that on April 8, 2011, at approximately 1:45 a.m., Mr. Maric (“the Applicant”) was involved in an argument with a group of unknown males outside a bar located near the intersection of Richmond and Kent Street in the City of London. One of the unknown males punched the Applicant in the face. It is alleged that the Applicant pulled out a small black handgun from his waist band and pointed it at his assailant(s).

[3] The Crown further alleges that at 1:48 a.m. two London police officers attended at the corner of Kent and Richmond Street. An individual informed the police officer that the Applicant was a person involved in the altercation. The Applicant was walking through a parking lot and upon seeing the police officers began to walk away from them.

[4] The Crown further alleges that Constables Lake and Hewerdine drew their service pistols and told the Applicant to drop to the ground. The police officers observed the Applicant remove a small black handgun from his waist band and throw it under a truck parked in the parking lot. The Applicant was arrested at approximately 1:50 a.m. and charged with possession of a firearm, careless use of a firearm and pointing a firearm in a public place.

III The Bail Hearing

[5] Mr. Grill, barrister and solicitor, of Toronto was retained on April 8, 2011 to represent Mr. Maric. Mr. Grill, who was in the midst of a homicide trial in Toronto, retained Mr. Brown, a London barrister, to set a date for a bail hearing for his client. I set out the chronology of Mr. Maric’s bail hearing below.

(a) The First (April 8, 2011) and Second (April 12, 2011) Appearances

[6] On April 8, 2011, the Applicant appeared in bail court before Justice of the Peace Seneshen. Mr. Yih, counsel for the Crown, informed the court that the Crown would not consent to Mr. Maric’s release. Mr. Brown requested the presiding justice of the peace set the Applicant’s bail hearing for Tuesday April 12, 2011. J.P. Seneshen set one hour for the bail hearing. Neither Mr. Yih nor Mr. Brown informed the presiding justice of the peace that the bail hearing would require more than one hour.

[7] On April 11, 2011, Ms. Gardiner, the designated prosecutor for gun offences in London, learned that a bail hearing was scheduled to commence on April 12, 2011 for Mr. Maric’s gun charges.

[8] On April 12, 2011, Ms. Gardiner represented the Crown and Ms. Shemesh of Toronto represented Mr. Maric. The bail proceedings commenced before Justice of the Peace Seneshen. The matter was stood down because a Croatian interpreter was required to assist the proposed surety (the Applicant’s mother) in understanding the evidence at the bail hearing. Mr. Maric’s bail hearing commenced upon the arrival of the Croatian interpreter.

[9] Ms. Gardiner read-in a synopsis of the facts and witness statements of two police officers and several civilian witnesses. Crown counsel also read-in the accused’s criminal record, together with the underlying facts for some of the convictions. An issue arose as to the underlying facts in relation to a failure to comply with a recognizance. This dispute could not be resolved on the basis of the material before the court.

[10] J.P. Seneshen asked counsel how much time was allotted for the Maric bail hearing. Crown counsel advised that one hour had been allotted to complete the bail hearing. It appears that the presiding justice of the peace had forgotten that he had set one hour for the bail hearing during the April 8 appearance. J.P. Seneshen informed counsel that the Maric bail hearing would be adjourned at 1:00 p.m. because he had to attend to other matters on the docket. He stated that since Mr. Maric’s bail hearing would exceed 3.0 hours it should have been heard in a special court. The Maric bail hearing was not completed by 1:00 p.m. and the presiding justice put the matter over “for continuation at a convenient time for everyone.”

[11] J.P. Seneshen informed counsel that the bail hearing would be adjourned to a date when the Croatian interpreter was available because, “I would certainly want the proposed surety to be fully aware of the previous convictions and that sort of thing.” Ms. Shemesh responded “most definitely.”

[12] Ms. Shemesh informed the court that one day was required to complete the bail hearing. Counsel agreed to adjourn the bail hearing to April 20, 2011.

(b) The Third Appearance (April 20, 2011)

[13] On April 20, 2011, J.P. Seneshen informed counsel in the morning that he was adjourning the proceedings at 3:25 p.m. because “there is a swearing-in-ceremony at which I am required ...” Ms. Gardiner filed copies of the statements which she had read-in on April 12, 2011. She also produced copies of prior judicial interim releases signed by the accused. The surety was examined in-chief, cross-examined and re-examined. The need to translate the evidence and procedural discussions between counsel lengthened the proceedings.

[14] As 3:25 p.m. approached, the presiding justice advised counsel that the office of the Regional Senior justice of the peace was prepared to work around the schedule of Crown counsel and defence counsel to set a date for the continuation of the bail hearing. He informed counsel that he would order a transcript for the first two days of the hearing and he would make copies available to counsel upon request.

[15] J.P. Seneshen informed counsel he was available to continue the bail hearing on April 21, 2011 and any day of the following shortened week. Good Friday fell on April 22nd and Easter Monday fell on April 25th. Defence counsel informed the court that she was not available April 21, 2011; Ms. Shemesh was leaving the following morning for a planned one week vacation and would not return to Canada until April 27, 2011. Ms. Shemesh advised she would be available to continue the hearing on April 28, 2011.

[16] Ms. Gardiner informed the court that she was scheduled to prosecute a one week Superior Court judge and jury trial commencing Tuesday April 26, 2011 and concluding on Tuesday May 3, 2011. She informed the presiding justice that it was too late to transfer the Superior Court jury trial to another Crown on one working day’s notice. Ms. Gardiner further advised that she was scheduled to conduct a red flagged preliminary hearing on May 4, 2011 in the Ontario Court of Justice. She stated that she was available to continue the bail hearing on May 5, 2011.

[17] Although J.P. Seneshen informed counsel that he was available to continue the bail hearing during the shortened week of April 25, both counsel were not available on April 26 or 27, 2011 and Ms. Gardiner was not available April 28 or 29, 2011. J.P. Seneshen also informed counsel that he was scheduled to attend a conference from Tuesday May 3 to Friday May 6, 2011. Ms. Shemesh suggested that she was prepared to have someone else represent the accused if a transcript was available and there was an earlier available date to complete the hearing. Ms. Gardiner inquired if Ms. Shemesh was available May 9, 2011. Ms. Shemesh advised she would be available on May 9, 2011 but “I’ll have to determine if I have alternate remedies.” The bail hearing was adjourned to April 21, 2011 to set a date for the continuation of the bail hearing.

(c) April 21, 2011

[18] On April 21, 2011, the bail hearing was scheduled to continue May 11, 2011. I was advised that Crown counsel (not Ms. Gardiner), duty counsel, as agent for Ms. Shemesh, and J.P. Seneshen, discussed the possible use of transcripts by another Crown or another defence counsel to complete the bail hearing. However, it does not appear that inquiries were made regarding when transcripts would be available to allow the matter to be brought forward for argument by new counsel. The transcripts for the proceedings on April 12, 2011 and April 20, 2011 were completed on May 3, 2011 and April 27, 2011 respectively. The earliest date for a substitute prosecutor or defence counsel to make submissions based on the transcripts would have been May 4, 2011.

(d) Ms. Gardiner’s Availability from April 28 to May 3, 2011

[19] On April 28, 2011, Ms. Gardiner sent a letter, dated April 27, 2011, by facsimile transmission to Ms. Shemesh advising that her jury trial had collapsed and she proposed to continue the bail hearing on April 28, 29, May 2, or 3, 2011. These dates coincided with the shortened week of April 25, 2011 previously offered by J.P. Seneshen and prior to the commencement of his scheduled conference on May 3, 2011.

[20] Ms. Shemesh, in her affidavit sworn November 14, 2012, stated that on April 28, 2011 she contacted the trial co-ordinator for the Ontario Court of Justice and the co-ordinator for the justices of the peace. Ms. Shemesh stated in her affidavit: “Through discussions with them it was determined that none of the dates offered by Ms. Gardiner could not [sic] be accommodated.”

[21] Ms. Shemesh did not respond to Ms. Gardiner’s letter as to her availability or inform Ms. Gardiner of her discussions with the Ontario Court of Justice or justice of the peace co-ordinators. Ms. Shemesh did not write to J.P. Seneshen to request his assistance to obtain an earlier date through the office of the Regional Senior justice of the peace or request Ms. Gardiner’s assistance in speaking to the trial co-ordinators to obtain an earlier date for the continuation of the bail hearing.

IV Habeas Corpus Application

[22] On April 28, 2011, at 3:45 p.m., Ms. Shemesh corresponded by email with Joy Beattie, Superior Court trial co-ordinator, to schedule a habeas corpus application. The application was grounded on an alleged breach of ss. 7, 9 and 11(e) of the Charter. On May 4, 2011, Hockin J. heard, but did not grant, the habeas corpus application. Hockin J. stated that the matter should move forward with some haste and invited J.P. Seneshen to complete the bail hearing and determine whether or not the accused should be released.

V Analysis and Decision

[23] The grounds for the stay application may be analyzed under two headings: (1) the “illegal” adjournment of more than three days contrary to s. 516 of the Criminal Code, R.S.C. 1985, c. C-46; and (2) the conduct of the Crown prosecutor and the justice of the peace.

(a) The “Illegal” Adjournment

[24] The Applicant was arrested in the early morning hours of April 8, 2011. Later that same day, the Applicant was taken before a justice of the peace within 24 hours as required by s. 503 of the Criminal Code. The Applicant was remanded in custody, on consent, until April 12, 2011. On April 12, 2011, the Applicant’s bail hearing commenced and was adjourned on consent to April 20, 2011. On April 20,2011, the hearing continued and was adjourned on consent to April 21, 2011.

[25] Counsel for the Applicant submitted that on April 21, 2011, J.P. Seneshen adjourned the hearing to May 11, 2011 at 2:00 p.m., for a period greater than three days without the consent of the Applicant. Counsel submitted that this adjournment contravened s. 516 of the Criminal Code.

[26] The factum of the Applicant characterized the breach of s. 516 of the Criminal Code as follows: (1) “the Applicant never consented to the adjournment;” (2) the justice of the peace violated the Applicant’s rights “by acceding to a lengthy, unreasonable, and illegal Crown adjournment request”; and (3) the justice of the peace “acquiesced over the objections of the Applicant to a long, unreasonable and illegal adjournment which would have been the third day of the Applicant’s bail hearing.”

[27] A transcript of the April 21 proceedings was not filed with the other transcripts on the Charter application held on November 15 and 16, 2012. On November 20, 2012, the court informed counsel that a transcript of the April 21 proceedings had been ordered and a copy would be provided to counsel. Counsel were invited to make further written submissions upon receipt of the transcript.

[28] At the April 21, 2011 bail hearing, Mr. McCarthy, duty counsel and agent for Ms. Shemesh, informed J.P. Seneshen as follows:

The first available date is April 26th, and all things being equal it would be their [the Applicant/Ms. Shemesh’s] preference, however, they also understand Ms. Gardiner is not available until May the 9th, and so I am going to tell you that they are consenting to that date having put on the record that their availability is earlier.[1]

[29] The court finds on the basis of the record that Mr. McCarthy received instructions from Ms. Shemesh to consent to the adjournment to May 11th, 2011 subject to informing the justice of the peace that Ms. Shemesh was available on an earlier date of “April 26, 2011 [sic]”. Ms. Shemesh had stated previously that she was not available until April 28, 2011.

[30] Counsel for the Applicant submitted that the consent was merely the acquiescence to the inevitable and it was not the consent “contemplated in s. 516(1) of the Criminal Code.” Section 516(1) authorizes a justice, before or during a hearing under s. 515, to adjourn the bail hearing and remand the accused in custody, but such adjournment shall not be longer than three days unless the accused person consents. In my view, the Applicant, through counsel, gave a valid consent to an adjournment longer than three days. I find the April 21, 2011 adjournment was not an illegal adjournment. Accordingly, there was no breach of s. 7 or s. 11(e) of the Charter on the ground that s. 516(1) had been infringed.

(b) The Conduct of the Assistant Crown-Attorney and the Justice of the Peace

[31] It is common ground that the bail hearing was not delayed due to a lack of institutional resources as occurred in R. v. Zarinchang, 2010 ONCA 286, 99 O.R. (3d) 721, or R. v. J.V. (2002), 2002 49650 (ON SC), 163 C.C.C. (3d) 507, [2002] O.J. No. 1027 (S.C.). It is the Applicant’s position that:

the delay in completing the bail hearing in this case was as a direct result of a disturbing apathy on the part of the prosecuting Assistant Crown Attorney in relation to the Applicant’s liberty rights, and the acquiescence of the justice of the peace to the conduct that violated the applicant’s rights (Applicant’s Factum, at para.10).

[32] Counsel for the Applicant submitted that allowing the prosecution to proceed would amount to judicial approval and acceptance of the impugned Crown conduct and would negatively affect the integrity of the justice system. Counsel submitted that a stay of proceedings was the appropriate remedy to protect the integrity of the justice system.

[33] Counsel for the Applicant further argued that Ms. Gardiner and J.P. Seneshen showed a complete disregard for the rights of the Applicant during the course of the prolonged bail hearing.

(i) Ms. Gardiner

[34] Ms. Gardiner did not participate in fixing one hour for the bail hearing on April 8, 2011. Although Mr. Grill and/or Ms. Shemesh knew prior to April 12, 2011 that an interpreter was required to interpret the proceedings for the surety, Ms. Shemesh did not inform the Crown Attorney’s office that an interpreter would be required.

[35] Counsel for the Applicant criticizes Ms. Gardiner for her “cavalier attitude” because she read-in the statements of lay witnesses and police officers as well as the Applicant’s criminal record, including the underlying facts for some offences. Ms. Shemesh did not object during the hearing as to the manner in which Ms. Gardiner adduced evidence. There was an objection and dispute as to the factual basis for a conviction for failing to comply with a recognizance. The presiding justice adjourned the resolution of that issue to the next hearing date.

[36] Counsel for the Applicant submitted that these documents should have been filed on consent. The filing of documents as an exhibit, without reference to their content, would not assist the surety to understand the evidence.

[37] Another criticism of Ms. Gardiner was that she did not agree to transfer the file to another counsel because there were no transcripts available for the substitute Crown to make closing submissions. As noted, Ms. Shemesh’s agreement to transfer the file to another counsel was similarly dependent upon the availability of transcripts. J.P. Seneshen was not available when the transcript for the April 20, 2011 proceeding became available on May 3, 2011 and Ms. Shemesh was proceeding with her alternative remedy.

[38] On April 20, 2011, Ms. Shemesh informed J.P. Seneshen that she would be out of the country from April 21 to April 27, 2011 but she would be available on April 28, 29, and May 2 and 3, 2011. As mentioned, on April 28, 2011 Ms. Gardiner sent a letter, dated April 27, 2011, by facsimile transmission to Ms. Shemesh informing her that she was now available to proceed with the bail hearing on the above dates. Counsel for the Applicant criticizes Ms. Gardiner for her failure to secure a court date by contacting the trial co-ordinator or the co-ordinator for the justice of the peace before sending her letter to Ms. Shemesh. I do not accept this argument. Ms. Gardiner notified Ms. Shemesh of her availability. As a matter of professional courtesy, counsel should not fix a court date without knowing opposing counsel’s availability and reaching an agreement.

[39] The record does not show that Ms. Gardiner acted improperly or unprofessionally. The court finds that Ms. Gardiner did not breach the Applicant’s Charter rights.

(ii) Justice of the Peace Seneshen

[40] J.P. Seneshen did not limit the bail hearing to one hour, as originally scheduled, on April 12, 2012. The hearing started upon the arrival of the interpreter and continued until 1:00 p.m. Counsel for the Applicant submits that “the justice of the peace violated the Applicant’s rights by failing to prioritize Mr. Maric’s hearing over other matters on the docket.” The other persons in custody were entitled to attend bail court for their scheduled appearances and hearings. The justice of the peace made a decision to set aside the morning for the Maric matter and the afternoon for other prisoners’ bail proceedings. The justice of the peace was entitled to control the list and to attend to other matters on the docket.

[41] The bail hearing was adjourned to April 20, 2011 and one day was scheduled to complete the bail hearing. One of the alleged criticisms of the presiding justice of the peace was that he took an hour and one-half lunch break on April 20, 2011. Ms. Shemesh, counsel at the April 20, 2011 proceedings, said:

I understand that it’s typical in this jurisdiction to have an hour-and-a half lunch, as opposed to a shorter lunch, and I understand Your Worship has some other commitments, so as I understand it, there has been some time lags that have gone on through the system and perhaps it’s of no fault of anyone in particular...”

It is difficult for this court to be critical of J.P. Seneshen as submitted by defence counsel since the record does not disclose the other duties the justice performed during the lunch break on April 20, 2011 in addition to the matters on the docket.

[42] In the April 21, 2011 transcript J.P. Seneshen remarked that a shortened lunch break causes problems “because of staffing and police concerns about people on their lunch break”, when he fixed a 2:00 p.m. start time for completion of the bail hearing. Court staff and court security are entitled to a lunch break and persons in custody must be served with lunch. Court security officers are busy moving prisoners to and from various courts through the courthouse in addition to bail courts.

[43] On the morning of April 20, 2011, J.P. Seneshen informed counsel that he was required to attend a swearing-in ceremony of a colleague that afternoon at 3:25 p.m. The presiding justice also knew that he was scheduled to attend a conference commencing May 3, 2011. In these circumstances, the justice’s duty to complete the bail hearing on April 20, 2011 was more important than attending the ceremonial duties of a colleague. The record does not disclose why it was necessary to attend the swearing-in ceremonies. Also, the justice set aside one-half day to complete the matter which indicates there was insufficient time to complete the bail hearing on April 20, 2011.

[44] On April 28, 2011, Ms. Gardiner sent a letter to Ms. Shemesh by facsimile transmission. Ms. Shemesh did not respond to Ms. Gardiner’s letter. Instead, Ms. Shemesh telephoned the trial co-ordinator and learned the matter could not be heard on those dates. Ms. Shemish’s anaemic effort to continue the bail hearing was inadequate. Ms. Shemesh should have telephoned or sent a letter to Ms. Gardiner and/or Justice of the Peace Seneshen informing them she wished to continue the hearing and requesting their assistance to schedule a hearing. This step was available to her because J.P. Seneshen had informed counsel that the Regional Senior justice’s office was prepared to work around the schedule of Crown and defence counsel to set a date for the continuation of the bail hearing.

[45] On April 28, 2011, at 3:45 p.m., Ms. Shemesh sent an email to the Superior Court trial co-ordinator to schedule a habeas corpus application to be heard May 4, 2011. Ms. Shemesh chose to proceed with her “alternative remedy”, namely a habeas corpus application, instead of the bail hearing. Justice Hockin, in dismissing the habeas corpus application, stated that the bail hearing, which was then set for May 11, 2011, ought to move along with some haste. He stated: “I am unaware of whether there is an earlier date available.”

[46] The bail hearing was brought forward to May 9, 2011, presumably as a result of the comments of Hockin J. J.P. Seneshen granted bail to the Applicant on May 9, 2011.

VI Should a Stay be Granted?

[47] In R. v. Zarinchang the delay was caused by a lack of institutional resources. The issue before the Court of Appeal was whether a stay was the appropriate remedy in the context of a breach of ss. 7, 9 and 11 of the Charter, which state:

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 person charged with an offence has the right...

(e) not to be denied reasonable bail without just cause.

[48] The Zarinchang Court quoted with approval the dissenting reasons of Iacobucci J. in R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, at paras. 47-49, as to the importance of s. 11(e) of the Charter:

At the heart of a free and de