ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13-90000386-0000

DATE: 20130610

B E T W E E N:

HER MAJESTY THE QUEEN

Ian Bell, for Her Majesty the Queen

• and -

SHENIF BHANJI

Anthony de Marco, for Shenif Bhanji

HEARD: June 6 and 7, 2013

Thorburn J.

APPLICATION FOR STAY OF PROCEEDINGS

Relief Sought

[1] The Applicant, Shenif Bhanji brings an Application to stay these proceedings as against him. He claims that the Crown’s inadvertent failure to disclose evidence material to his Charter application has irreparably harmed his right to make full answer and defence.

Factual Context

[2] The Applicant Bhanji and his co accused, Nicely, are charged with possession of drugs for the purpose of trafficking.

[3] Nicely was the main target of the police investigation leading to the arrest of Bhanji and Nicely. Police conducted surveillance on Nicely on December 14, 15, 16 and 29. Nicely was seen entering and leaving a Volkswagen Jetta with license plate BHMF630. The driver of the vehicle was described by police as a white male who appeared to be of Middle Eastern descent in his early thirties.

[4] On the evening of December 29th, Bhanji was driving the Volkswagen Jetta owned by his sister with license plate BHMF630. Gifton Nicely was in the front passenger seat.

[5] The Volkswagen Jetta was stopped at a red light. Bhanji and Nicely were detained, and arrested for possession of cocaine. Cocaine was found between the front driver’s seat and the front console and on the seat where Nicely had been sitting.

[6] Bhanji claims that his detention and arrest were in breach of his sections 8 and 9 Charter rights as the police had no right to detain and arrest him on the evidence available to the police. As such the evidence obtained as a result of his detention and arrest should be excluded in the case against him. Nicely has not brought an Application to challenge the police decision to arrest him.

[7] Officer Jon Reid was the first person to testify for the Crown. This was the first time any Crown witness testified in the case against Bhanji as Bhanji waived his right to a preliminary inquiry and chose to proceed directly to trial.[^1] Moreover, Officer Reid testified that he now works for the Police Association and not the Toronto Police. Officer Reid therefore did not have reason to refresh his memory on this issue at an earlier proceeding.

[8] In his examination in chief, Reid testified that:

a) Nicely was the primary target of the investigation and that prior to the date of his arrest, police believed they saw Nicely conduct several hand to hand drug deals.

b) Nicely was at times driven in a Volkswagen Jetta with license plate BHMF630.

c) Earlier in the evening on the night of the arrest police believe they saw a person approach the front passenger window. After a few seconds Nicely came out of the vehicle and put something into the other male’s right hand. The person looked at it and then put it in his right pocket.

d) The driver of the vehicle was identified as a white male of Middle Eastern descent in his early thirties.

[9] Counsel for Bhanji chose to cross examine Officer Reid. Officer Reid initially said he did not believe he knew Bhanji’s identity on the day of his arrest. Officer Reid did not recall whether Bhanji was the registered owner of the vehicle but if so, he would have known whether he had a criminal record or not.

[10] In the course of Officer Reid’s cross examination, the following exchange took place:

Page 4: A (Reid): … when the arrest was ordered, Mr. Bhanji as it turned out, was sitting in a vehicle, driving a vehicle where a hand-to-hand drug transaction took place within probably two feet of him…in the vehicle that he had care and control of.

Page 5 Q (Bhanji counsel): ..you did not identify now in your evidence Mr. Bhanji as being the person who you would had made observations on, on December 14, 15 or early morning on December 16 correct?

A: I did not but other officers, I believe had identified him.

I believe there’s a notation here identifying him as POI #Two. .. he’d be identified as a person of interest on the 15th at 22:56…It says, “Driver, POI #2 stays in car waiting out front.”

[11] On page 21 of the same cross examination, the following exchange took place:

Q: In addition to the search warrants for Nicely, and in addition to the observations made two weeks before of Nicely involved in drug transactions while he was outside of this car, the only thing you have with respect to Bhanji on the 29th is that a black male goes up to Nicely while seated in the car and in your opinion, engages in a drug-related transaction.

A: Correct…but I also see Bhanji in the car…on the 15th.

A: On the 15th when he turns the interior light on at 22, 22:53.

Q: Fine. This is news. OK. Go ahead. You didn’t testify to that before. Go ahead.

A: No they’re both sitting in the car. I did testify to this….On the 15th….at 22:52 observed POI #One looking into his lap, unzipping his jacket, reaching inside for something. 22:53, interior light come on in the vehicle and at that point the vehicle moves and makes a U-turn and drives away quickly. And that’s when they head over to the Popeye’s restaurant…

Q: You can’t say that that driver was Bhanji.

A. Why not? ... I was close enough to see that it’s Mr. Nicely. I’m close enough to see he’s unzipping his jacket, reaching inside for something…and close enough to see Bhanji’s face.

[12] Later at page 40 of the transcript, the following exchange took place:

Q: …how do you connect in your mind Bhanji to what happened on December 15th unless you record it somewhere and are able to testify that, “Yes, in fact, I considered that this is the same guy, December 15th?”

A: As I mentioned, I do believe it was recorded but I don’t have access to it. (The witness testified that he works at the Police Association, a separate entity from the Toronto Police Service and he therefore no longer has access to those records.)

[13] It is apparent from this exchange that before the new information was sought by the Applicant, Officer Reid had already testified that,

a) He had a note in his police book that on December 29 “Driver, POI #2 stays in car waiting out front” while POI #1 engaged in what he believed to be a street drug transaction;

b) Officer Reid had a general description of the driver of the vehicle;

c) Although he initially said he did not know Bhanji’s identity, he testified that other officers had identified Bhanji as POI #2; and

d) Later in his cross examination he said he saw Bhanji on the 15th when the light went on in the vehicle and he saw his face.

[14] Several minutes after this exchange, Officer Reid was again asked how he knew POI #2 was Bhanji. He replied that there was a record. Bhanji’s counsel asked Officer Reid to locate the record Officer Reid said would show that Bhanji was the person he saw on December 15th.Bhanji’s counsel sought to adjourn the Charter application until such time as the record had been produced. The Crown agreed to try and locate the record.

[15] The Crown located a report that had not yet been disclosed. The new information provided documentary evidence to support the witness’ contention that POI #2, the driver of the vehicle, was in fact identified by police prior to December 29 as Bhanji and a photograph of Bhanji was in the possession of police prior to the arrest. The eight page report was provided to the Applicant.

[16] Upon receipt of this information, the Applicant chose not to cross examine Officer Reid any further. Thereafter, the Applicant brought this application for a stay of proceedings.

[17] Bhanji claims that the late disclosure of this information warrants a stay of proceedings as, had he known this report existed, he would not have chosen to cross examine the officer. If he had, he would have avoided the line of questions about the association of POI #2 with Officer Reid. He further submits that Bhanji’s Charter application has been irreparably harmed by his doing so, as without this testimony, Bhanji’s Charter argument would have been more likely to succeed.

Analysis of the Law and Conclusion

[18] Section 24 (1) of the Charter of Rights and Freedoms provides that: Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. Courts have the jurisdiction to stay criminal proceedings under s. 24(1) of the Charter where to do otherwise would violate the "principles of fundamental justice" pursuant to section 7 of the Charter.

[19] A stay of proceedings is an extraordinary remedy that is granted only as a last resort. An Applicant must establish that the evidence that was not adduced is material, failure to produce it amounts to an abuse of process or gross negligence, and the failure to disclose the information would significantly affect the accused’s right to a fair trial. (R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, at paras. 75-82; R v. Bjelland 2009 SCC 38, [2009] 2 S.C.R. 651 at para. 26)

[20] A stay of proceedings is the “ultimate remedy” in the sense that charges that are stayed may never be prosecuted and society will therefore never have the matter resolved by a trier of fact. (Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 322 (SCC), [1997] 3 S.C.R. 391(at para. 86).

[21] If there is a remedy other than a stay of proceedings that exists that would adequately redress the prejudice suffered by an accused, that remedy should be granted rather than granting a stay of proceedings. (R. v. O’Connor, at paras. 77 & 78.)

[22] In R. v. Leduc (2003), 2003 52161 (ON CA), 66 OR (3d) 1 (C.A.) the Crown failed to disclose relevant information that should have been disclosed to the accused before the trial began. The court held that the “right to disclosure of relevant information forms one component of the right to make full answer and defence.” (Leduc at para. 98) However, although the Crown’s breach of its disclosure obligation amounted to a breach of the accused’s constitutional rights, the accused was not entitled to a stay of proceedings under section 24(1) of the Charter as a stay,

“is a drastic remedy, a remedy of last resort, to be granted only in the “clearest of cases”. It should be granted only in the rare cases where compelling an accused to stand trial would violate those fundamental principles of justice that underly the community’s sense of fair play and decency.” (Leduc at para. 99)

[23] Similarly, in R. v. Dixon, 1998 805 (SCC), [1998] 1 S.C.R. 244, the court held that the right to full disclosure is just one component of the right to make full answer and defence. In order to determine whether the right to make full answer and defence was impaired by a failure to disclose information, a two-step analysis must be undertaken. Does the undisclosed information affect the reliability of the conviction? Even if the undisclosed information does not affect the reliability of the result at trial, the effect of the non-disclosure on the overall fairness of the trial process must also be considered. This will be done by assessing, on the basis of a reasonable possibility, the lines of inquiry with witnesses or the opportunities to garner additional evidence that could have been available to the defence if the relevant information had been disclosed.

[24] For the following reasons, I do not believe that a stay of proceedings is appropriate:

a) The failure to disclose the report was inadvertent not deliberate.

b) The report is not a new position advanced on the part of the Crown: it corroborates testimony given earlier by Officer Reid that he had an independent recollection that Bhanji was POI #2.

c) Bhanji knew before requesting this additional disclosure that Officer Reid’s evidence was that there were two persons of interest, one of whom was the driver of the Volkswagen Jetta. A general description of the driver was provided. Moreover, information including the description of the vehicle, the license plate, and a general description of the second POI are reflected in the police notes available prior to trial.

d) There was no opportunity to test this evidence as it pertained to Bhanji earlier as Bhanji elected to waive his right to a preliminary inquiry and instead proceeded directly to trial.

e) The Applicant concedes that there is no precedent for granting a stay application where the failure to produce documentation was an inadvertent failure to produce documentation to corroborate the position taken by a Crown witness.

[25] The purpose of a stay of proceedings is to serve as a shield to protect an accused’s right to a fair trial and to safeguard the fairness of the administration of justice, not to serve as a sword to put the accused in a better position than he would have been in, but for the inadvertent failure to disclose all relevant information in a timely manner.

[26] If the record in question had been disclosed in a timely manner, it would have formed another piece of evidence in support of the Officer Reid’s assertion that he identified Bhanji as a person of interest before his detention and arrest. Bhanji could then have decided whether to proceed with a Charter application to exclude evidence on the basis that police had no reasonable and proper grounds to detain and arrest him in the vehicle he was driving. With the late disclosure of this record, Bhanji can still decide whether to proceed with this application and if so, how to address this issue of further disclosure. However, if a stay of proceedings were granted the Crown would be precluded from proceeding with the prosecution of these charges on the basis of the evidence available prior to the discovery that some disclosure was missing.

[27] There would be no determination of the Charter application on the merits. It is in the interests of justice that the truth be available to the trier of fact before determining whether the evidence obtained upon detention and arrest of Bhanji should be excluded.

[28] The Applicant seeks no alternative remedy. However, should the Applicant wish to do so, he may further cross examine Officer Reid to challenge his belief and the basis for his stated belief that Bhanji was POI #2 and or bring defence evidence to challenge the assertion that Bhanji had driven the Volkswagen Jetta on earlier occasions when Nicely was under police surveillance. With these issues determined, Bhanji could then decide whether he wishes to call any evidence on this Application. The trial by jury would proceed after the determination of this Charter application. This will satisfy the public interest in getting at the truth while preserving basic procedural fairness for the accused.

[29] For these reasons, I do not agree that failure to disclose this record constitutes either gross negligence or an abuse of process, that there is no other possible remedy and that a stay of proceedings is necessary to maintain the integrity of the justice system. The application for a stay of proceedings is therefore denied.

Thorburn J.

Released: June 10, 2013

[^1]: A Preliminary Inquiry was held for the co accused, Nicely but this issue was not the focus of that Preliminary Inquiry.