ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIM J(S) 1557/11
DATE: 20140305
BETWEEN:
HER MAJESTY THE QUEEN
Iona Jaffe/James Clark, for the Respondent
Respondent
- and -
MOHAMED HERSI
Paul Slansky, for the Applicant
Applicant
HEARD: January 7 and 8, 2014
Ruling #1: Constitutionality of s. 577 and Abuse of Process
Publication Ban
An order has been made prohibiting the publication of any information that could identify the undercover officer
Baltman J.
[1] Mr. Hersi is charged with two terrorism offences. He was initially arrested and charged on March 29, 2011. Eight months later, on November 27, 2011, the Deputy Attorney General of Canada consented to the preferment of a direct indictment pursuant to s. 577 of the Code.
[2] The charges against Mr. Hersi are to a great extent based upon the anticipated evidence of an undercover police officer, who “befriended” Mr. Hersi and met with him approximately thirty times during the course of the investigation. The last eleven meetings were recorded pursuant to a wiretap authorization.
[3] Mr. Hersi has two motions before the court. First, he challenges the constitutionality of s. 577. Second, and in the alternative, he argues that the preferment of the direct indictment amounts to an abuse of process, as it resulted in a lost opportunity to cross-examine the undercover officer – a key Crown witness - at the preliminary hearing. As a s. 24(1) remedy, the applicant seeks to have the matter remitted to the Ontario Court of Justice for a preliminary hearing or, in the alternative, to have a discovery hearing in the Superior Court.
[4] On February 10, 2014, I issued a ruling dismissing these motions, in their entirety, with reasons to follow. These are my reasons. As both motions rest on grounds virtually identical to those argued by Mr. Slansky on a previous terrorism case, and rejected by Dawson J. in detailed reasons[^1] which I find highly compelling, these reasons are summary.
The Constitutional Validity of s. 577 of the Criminal Code
The Relevant Statutory Provisions
s. 536(4) If an accused elects to be tried by a judge without a jury or by a court composed of a judge and jury or does not elect when put to the election or is deemed under paragraph 565(1)(b) to have elected to be tried by a court composed of a judge and jury or is charged with an offence listed in section 469, the justice shall, subject to section 577, on the request of the accused or the prosecutor made at that time or within the period fixed by rules of court made under section 482 or 482.1 or, if there are no such rules, by the justice, hold a preliminary inquiry into the charge.
s. 577. Despite section 574, an indictment may be preferred even if the accused has not been given the opportunity to request a preliminary inquiry, a preliminary inquiry has been commenced but not concluded or a preliminary inquiry has been held and the accused has been discharged, if
(a) in the case of a prosecution conducted by the Attorney General or one in which the Attorney General intervenes, the personal consent in writing of the Attorney General or Deputy Attorney General is filed in court; or
(b) in any other case, a judge of the court so orders.
Submissions and Analysis
[5] The applicant’s argument that s. 577 is unconstitutional rests primarily on two by-products of the direct indictment: the loss of judicial screening, and the deprivation of discovery. These exact arguments have previously been rejected by provincial appellate courts and the Supreme Court of Canada.
[6] The main function of a preliminary hearing is to determine whether the Crown has sufficient evidence to put the accused on trial. In R. v. Ertel, 1987 183 (ON CA), [1987] O.J. No. 516 our Court of Appeal rejected the idea that the loss of this screening function by the preferment of a direct indictment resulted in a violation of the appellant’s s. 7 rights (p. 12):
In my view the Attorney General’s decision to prefer an indictment after the discharge of the accused at the preliminary hearing does not result in a deprivation of fundamental justice. The accused retains his or her presumption of innocence, the right to make full answer and defence with all the procedural safeguards available and the burden remains on the Crown to establish its case beyond a reasonable doubt.
[7] Nor is there any constitutional right to “discover” the Crown’s case by way of a preliminary hearing. In R. v. Arviv, 1985 161 (ON CA), [1985] O.J. No. 2602, at paras. 23-26, our Court of Appeal held that the loss of pre-trial discovery is not a constitutional violation, provided the Crown has otherwise fulfilled its disclosure obligations:
…There can be no doubt that in this country the preliminary hearing does serve the ancillary purpose of providing a discovery of the Crown’s case. No doubt, the failure to institutionalize procedures for the disclosure of the Crown’s case has contributed to the development of this function of the preliminary hearing. A preliminary hearing is not, of course, the only way of providing disclosure or discovery of the Crown’s case.
We observe that the great weight of authority in the United States appears to be that a preliminary hearing and the incidental discovery which it provides is not essential to comport with the requirement of due process [authorities omitted]
[8] The Court however acknowledged that a s. 7 violation may be found in some cases where a direct indictment combined with inadequate disclosure results in unfairness:
The preferring of a direct indictment under s. 507(3) of the Code in combination with the failure of the Crown to make adequate disclosure might, however, result in an accused being unable to make full answer and defence at his trial, thereby contravening s. 7 of the Charter and enabling the trial judge to fashion a remedy under s. 24(1).
[9] More recently, in R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651, at paras. 34-36, the Supreme Court determined that an accused’s rights to a fair trial and to make full answer and defence were not prejudiced by his inability to cross-examine two key Crown witnesses, whose statements were only disclosed following the preliminary hearing. The Court determined that the discovery purpose of the preliminary hearing can be fulfilled by adequate Crown disclosure:
…There is no independent Charter right to cross-examine a witness at a preliminary hearing. As stated above, s. 7 of the Charter protects the right of the accused to make full answer and defence. As indicated, in order to make full answer and defence, the Crown must provide the accused with disclosure (see Stinchcombe). However, this does not mean that the accused has a Charter right to a particular method of disclosure.
Although the primary purpose of the preliminary inquiry is to enable a provincial court judge to determine whether an accused should be committed for trial, as noted by Martin J.A. in Arviv, at p. 560, “the preliminary hearing does serve the ancillary purpose of providing a discovery of the Crown’s case”. However, if Crown disclosures are otherwise complete, then the accused’s s. 7 right has not been infringed by his not being able to cross-examine a witness at a preliminary hearing. The discovery purpose of the preliminary inquiry has been met through other means, such as providing the accused with witness statements.
[10] In the nearly 30 years since the Ontario Court of Appeal upheld the constitutionality of the direct indictment provisions in Arviv and Ertel there has not been a single Ontario appellate decision that has held otherwise. Moreover, in 2009 the Supreme Court confirmed the constitutionality of s. 577 in R. v. S.J.L., 2009 SCC 14, [2009] 1 S.C.R. 426, paras. 21-4. In the course of deciding that the Crown could prefer a direct indictment not just for adults but also in proceedings under the Youth Criminal Justice Act, it specifically addressed what Mr. Slansky alleges is the “erosion” of the judicial screening process:
It is well established that the preliminary inquiry is a screening mechanism for the purpose of determining whether the Crown has sufficient evidence to commit the accused to trial: R. v. Hynes, R. v. Sazant. However, there is no constitutional right to a preliminary inquiry or to the outcome of such an inquiry: R. v. Ertel, R. v. Moore. The principle of fundamental justice recognized by this Court in R. v. D.B., according to which young persons are entitled to a presumption of diminished moral blameworthiness has no bearing on the right to a preliminary inquiry. This is not the stage at which the guilt of the accused or the appropriate sanction is determined. Dispensing with the screening process therefore does not result in a deprivation of fundamental justice, since the accused continues to be presumed innocent and retains the right to make full answer and defence: Ertel
[emphasis added, citations omitted]
[11] Mr. Slansky claims he accepts that numerous appellate courts have previously pronounced on the constitutionality of s. 577. However, he states that today he has a “new” and more “nuanced” argument from what has been previously raised. The “new” argument, which I will elaborate upon shortly, turns not on the constitutional entitlement to a preliminary hearing but on the statutory right.
[12] Before examining that argument, I observe that Mr. Slansky correctly asserts that the common law principle of stare decisis is subordinate to the Constitution, and cannot require a court to uphold a law that is unconstitutional. In the recent case of Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] S.C.J. No. 72, at paras. 42-45, McLachlin C.J., writing on behalf of a unanimous court, agreed the Trial Judge was entitled to depart from previous Supreme Court jurisprudence on the constitutionality of various prostitution related provisions in the Criminal Code, on the basis that new legal issues were raised before her:
In my view, a trial judge can consider and decide arguments based on Charter provisions that were not raised in the earlier case; this constitutes a new legal issue. Similarly, the matter may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate.
[13] The Chief Justice cautioned, however, that the threshold for revisiting a matter “is not an easy one to reach”. It requires a new legal issue to be raised, or a significant change in the circumstances or evidence. This balances “the need for finality and stability” with the recognition that when a particular case warrants a review of precedent, a lower court can do justice. This is akin to the pronouncement of Professor Roscoe Pound[^2] more than ninety years ago:
Hence all thinking about law has struggled to reconcile the conflicting demands of the need of stability and of the need of change. Law must be stable and yet it cannot stand still.
[14] Consequently, in principle, even though the Supreme Court has already pronounced on the constitutionality of s. 577, if Mr. Hersi has indeed raised new legal issues I could revisit the matter.
[15] So what is the “new” argument? Mr. Hersi asserts that his focus in this case is on the statutory right to a preliminary hearing, unlike previous cases that dealt with the constitutional right to a preliminary hearing. He states that although there is, in principle, no constitutional right to a preliminary hearing, once Parliament specifically legislates the right to have one it cannot take it away in a manner that is arbitrary or fails to conform with the principles of fundamental justice. While asserting this as a novel approach, he bases it in part on ancient documents such as the Magna Carta (1215), the Bill of Rights (1689), and various unwritten constitutional principles that were identified in a number of pre-Charter constitutional judgments.
[16] I pause to note that, as Mr. Slansky admits, these submissions are essentially identical to arguments he unsuccessfully raised before Dawson J. in another terrorism case, R. v. Ahmad, 2008 54311 (ON SC), [2008] O.J. No. 5919. While I acknowledge that decision is not binding upon me, I find the reasons of Justice Dawson – a very experienced criminal jurist - highly persuasive, as they are rooted both in logic and sound precedent. I agree with and adopt his reasons.
[17] Most importantly, the argument being advanced ignores the plain wording of the Code. To review, s. 536(4) states as follows:
If an accused elects to be tried by a judge without a jury or by a court composed of a judge and jury or does not elect when put to the election or is deemed under paragraph 565(1)(b) to have elected to be tried by a court composed of a judge and jury or is charged with an offence listed in section 469, the justice shall, subject to section 577, on the request of the accused or the prosecutor made at that time or within the period fixed by rules of court made under section 482 or 482.1 or, if there are no such rules, by the justice, hold a preliminary inquiry into the charge.
[18] By that wording, any “right” the accused may have to a preliminary hearing is expressly qualified by the AG’s ability to prefer an indictment. That may well be why in Arviv the Supreme Court referred to it as a “so called” right:
The so – called “right” to a preliminary hearing is not elevated to a constitutional right under the Charter. The “right” to a preliminary hearing under the Code may be displaced by the Attorney-General preferring an indictment under s. 507(3) which, as we have previously stated, does not per se contravene s. 7 of the Charter.
[para. 24, emphasis added]
[19] I would therefore argue that it is wrong to label that as a “right”. It is not a right. It does not even start off as one. To the extent it creates any entitlement, it is inherently qualified. In my view the wording is tantamount to saying that unless the AG prefers an indictment, the accused is entitled to a preliminary hearing. It’s the AG who has the right, i.e. the right to pre-empt the preliminary hearing by directing that a matter proceed straight to trial. For clarity, I reproduce s. 577:
- Despite section 574, an indictment may be preferred even if the accused has not been given the opportunity to request a preliminary inquiry, a preliminary inquiry has been commenced but not concluded or a preliminary inquiry has been held and the accused has been discharged, if
(a) in the case of a prosecution conducted by the Attorney General or one in which the Attorney General intervenes, the personal consent in writing of the Attorney General or Deputy Attorney General is filed in court; or
(b) in any other case, a judge of the court so orders.
[20] Significantly, nothing in that wording suggests there should be limits to the AG’s discretion. The indictment “may” be preferred by him, or it may not. That reinforces the Crown’s position that there is no presumption of entitlement to a preliminary hearing.
[21] At the same time, no one is suggesting that the AG can proceed recklessly, or on a whim. There are two safeguards in place to insure that does not happen. First, the policy which guides the preferment of direct indictments by the Public Prosecution Service of Canada (PPSC) is set out in the publically accessible Federal Prosecution Service Deskbook. The Deskbook sets out a multi-step process designed to insure that direct indictments are preferred only in serious cases where there is a reasonable prospect of conviction at trial, and only where the public interest justifies it. It includes a lengthy (non-exhaustive) list of circumstances which may warrant such action, including delay, the ongoing availability of witnesses, and where the public importance in determining the accused’s innocence or guilt is higher than usual.
[22] The Deskbook also establishes a rigorous protocol for reviewing each recommendation for a direct indictment, including the endorsement of both the Regional Director of the local Crown Office and the Assistant Deputy Attorney General, before the recommendation can be presented to the Deputy Attorney General for his personal consideration.
[23] Second, as Ertel and other cases have stated, the AG’s exercise of discretion under s. 577 can be reviewed for abuse of process and violation of the Charter. I shall now examine whether such a breach can be said to have occurred in this particular case.
Abuse of Process
[24] Mr. Hersi submits that even if s. 577 is constitutionally valid, the operation of that scheme in this particular case amounts to an abuse of process. He claims that the loss of his ability to cross-examine the Crown’s key witness – the undercover officer – violates his ss. 7 and 11(d) Charter rights.
[25] In connection with this assertion, he asks the court to subpoena the Attorney General or his Deputy, in order to uncover the reasons for the preferment of the indictment. Only by doing so, he claims, can we be sure that the decision was not arbitrary or capricious.
[26] The obvious impediment to that argument is the very clear jurisprudence stating that the preferment of an indictment is an act of prosecutorial discretion, and therefore not subject to review unless there is some evidence of misconduct. In Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372, at paras. 43 to 45, the Supreme Court set out a non-exhaustive list of Crown decisions which constitute the core elements of prosecutorial discretion.
[27] Although the decision to prefer an indictment was not specifically listed by the court in Krieger, the common thread of the items enumerated was the discretion whether to bring charges, stay charges, or withdraw charges. That that necessarily includes the preferment of an indictment can be confirmed by appellate jurisprudence both before and after Krieger.
[28] At p. 19 of Ertel (decided in 1987), our Court of Appeal referred to the section as “merely one of many appropriate means of bringing an accused person to trial.” And the court clearly considered the decision to prefer an indictment as being an act of Crown discretion:
In my opinion, the power of the Attorney General to prefer an indictment is in accord with the principles of fundamental justice and forms part of the large arsenal of discretionary powers that the chief law enforcement officers must possess in order to effectively discharge their constitutional duties. In the exercise of these discretionary powers the Attorney General is accountable to Parliament or the Legislature and the exercise of the power may be reviewed by a court of competent jurisdiction if it results in a denial or infringement of a constitutionally protected right.
[p. 12-13, emphasis added]
[29] Many years later, following Krieger, that same court confirmed the core prosecutorial discretion to commence proceedings in S.J.L., at para. 24:
Whether a direct indictment should be preferred is at the Attorney General’s discretion, and the courts will intervene in such a case only if there is an abuse of process.
[30] Consequently, even if I accepted Mr. Slansky’s submission that there should be some distinction made between “core” prosecutorial discretion and other, more “general” prosecutorial discretion (which I do not), these pronouncements make it clear that the preferment of an indictment goes to the heart of the Attorney General’s domain over the commencement and termination of proceedings. See also Fuerst J.’s observation in R. v. Lindsay, 2004 30085 (ON SC), [2004] O.J. No. 3858, para. 22.
[31] As for this constituting an unfair advantage to the Crown, I agree with Dawson J.’s observation that the preferment of an indictment is not always tactically beneficial to the Crown, as that may cause it to “lose some advantage in learning about their opponent’s case and preparing to meet that case at trial.” (Ahmad, para. 52). That may explain, in part, why defendants sometimes waive the option of a preliminary hearing and choose to proceed directly to trial.
[32] One matter both parties here agree upon is that if, as I have found, the decision in issue falls within core prosecutorial discretion, the defence cannot call evidence or launch any inquiry into the reasons behind the AG’s decision to prefer the indictment without first establishing a tenable allegation of bad faith or misconduct: R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566. And here the defence concedes it has none. On the contrary, the record here strongly suggests that legitimate concerns about delay may have been the primary motive.
[33] Mr. Hersi was arrested on March 29, 2011. By May 19, 2011, less than two months later, Crown disclosure was substantially complete. However, as of November 25, 2011 – eight months post arrest and the day on which the indictment was preferred – the disclosure was still sitting unclaimed in the Crown’s office and Mr. Hersi still did not have counsel of record.
[34] If, as seems likely, concerns over delay up to that point played a significant role in the decision to prefer the indictment, the AG’s assessment turned out to be prescient: it was not until February 1, 2012, ten months after the disclosure was first made available that Anser Farooq picked up the disclosure on behalf of the accused, and even then only for the purpose of furthering his ongoing discussions with Legal Aid. And it was not until December 5, 2012 – twenty one months after his arrest – that the applicant finally had counsel of record.
[35] The only remaining question is whether, as Mr. Hersi claims, his Charter rights have been infringed by his inability to cross examine the undercover officer prior to trial. The onus is on Mr. Hersi to demonstrate such a breach, and in my view he has failed. As our Court of Appeal stated at para. 31 of Arviv, the lost opportunity to cross-examine “even a key witness” before trial will not amount to a Charter breach where full disclosure of the Crown’s case and of the witness’s evidence has been made.
[36] The applicant has received full and timely disclosure. This includes extensive material relating to the undercover officer, as follows:
• The undercover officer’s notes (524 pages). The officer apparently made very detailed notes of his meetings and conversations with the applicant;
• The audio recordings (and corresponding transcripts) of intercepted communications, including: 11 vehicle probe recordings, 5 telephone recordings and 10 body-pack recordings;
• “UC Summaries” (57 in total). These typed documents summarize the undercover officer’s notes relating to each conversation (in person, text, or phone) he had with the applicant;
• The notes of the undercover’s “handlers” who briefed and debriefed the undercover officer prior to and after each meeting with the applicant;
• “TPS daily summaries” which contain highlights of the undercover officer’s dealings with the applicant;
• The affidavits in support of the two wiretap authorizations issued in the course of the investigation.
[37] There is therefore no Charter violation that would entitle the applicant to any remedy under s. 24(1).
Conclusion
[38] In sum, there is no statutory “right” to a preliminary hearing that could call into question the extensive appellate authority upholding the constitutionality of s. 577. The preferment of a direct indictment prior to trial is a matter of prosecutorial discretion, and there is no evidence of misconduct here that would justify an inquiry into the AG’s reasons for so doing. Finally, given the timely and extensive disclosure provided, Mr. Hersi has failed to demonstrate that his inability to cross-examine the undercover officer prior to trial amounts to a Charter violation.
[39] The application is dismissed in its entirety.
Baltman J.
Released: March 5, 2014
COURT FILE NO.: CRIM J(S) 1557/11
DATE: 20140305
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
MOHAMED HERSI
Ruling #1: Constitutionality of s. 577 and Abuse of Process
Baltman J.
Released: March 5, 2014
[^1]: R. v. Ahmad, 2008 54311 (ON SC), [2008] O.J. No. 5919 (S.C.)
[^2]: Roscoe Pound, Interpretations of Legal History, (University of Michigan: Macmillan, 1923) at 1.