R. v. Hickey and Simoni, 2016 ONSC 1955

CITATION: R. v. Hickey and Simoni, 2016 ONSC 1955

COURT FILE NO.: 9/15

DATE: 2016-03-18

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

JOHN HICKEY and ALDO SIMONI Applicants

David King, for the Crown

Marco Sciarra, for the Accused, John Hickey Marco Forte, for the Accused, Aldo Simoni

HEARD: January 5 and 6, 2016

PUBLICATION BAN

Pursuant to s. 648(1) of the Criminal Code, no information regarding any portion of the trial at which the jury is not present shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.

ABUSE OF PROCESS APPLICATION RULING

FITZPATRICK J.

[1] John Hickey and Aldo Simoni were charged with offences relating to their involvement in a break-in to the vault of a TD Bank branch on Fairview Street in Burlington which occurred in March, 2013. They jointly faced two counts of breaking and entering with intent. Mr. Hickey alone was also charged with possession of break-in tools.

[2] The Applications before me related to the Crown’s decision to have the police seek arrest warrants through a Justice of the Peace for the two accused in June, 2015.

[3] Both Mr. Hickey and Mr. Simoni sought to stay the prosecution against them pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms on the basis that their ss. 7 and 9 Charter rights were breached. Related to this, they allege that the actions of the Crown in this case amount to an abuse of process.

[4] The Applications were argued before me on January 5 and 6, 2016. Jury selection was set to begin on January 11, 2016. To facilitate jury selection, I provided my oral decision to dismiss the Applications on January 8, 2016 with the promise of written reasons to follow.

[5] I deal with both Applications together since they address substantially the same issues.

Background

[6] On March 18, 2013, Halton Regional Police responded to an alarm call at a branch of the TD Bank located on Fairview Road in Burlington. The two accused along with three other individuals were arrested at gunpoint in a nearby field. The other three individuals have since pleaded guilty to offences relating to the alleged break and enter and have been deported.

[7] The accused were originally released in 2013 following a bail hearing on strict terms with high surety values, namely $30,000 for Mr. Hickey and $50,000 for Mr. Simoni.

[8] The charges against both Mr. Hickey and Mr. Simoni were the subject of a preliminary hearing before Mr. Justice Brown of the Ontario Court of Justice in June, 2014. Justice Brown discharged both accused at the conclusion of the hearing on June 30, 2014.

[9] The Crown subsequently filed a certiorari application in this court, seeking to quash the discharge and an order of mandamus requiring the committal of both accused.

[10] On January 19, 2015, Justice Coats granted the application and ordered that Justice Brown commit the accused on the counts before the court: R. v. Hickey, 2015 ONSC 86. She ordered that both accused attend for their first appearance in the Superior Court assignment court on February 2, 2015.

[11] Mr. Simoni was committed to stand trial by Justice Brown on January 28, 2015. A defence request to amend Mr. Simoni’s bail conditions was declined by Justice Brown.

[12] Mr. Hickey was committed by Justice Brown on January 29, 2015.

[13] In the following months, several appearances were made in the Superior Court. Counsel attended for Mr. Simoni. Mr. Hickey attended in person representing himself at all material times following the decision of Justice Coats on certiorari while he made ongoing efforts to obtain counsel.

[14] Counsel for both the Crown (not Mr. King) and Mr. Simoni during this period believed that the bail obtained by both accused after their initial arrest was revived with Justice Coats’ order on the certiorari application.

[15] Email correspondence regarding the possible variation of Mr. Simoni’s bail was exchanged in January, February and March of 2015. The Crown, in fact, forwarded the documents to facilitate a consent variation of bail to counsel for Mr. Simoni to sign. This consent variation was never executed by Mr. Simoni.

[16] The status of the bail issue was first raised by defence counsel in May, 2015.

[17] On May 6, 2015 trial counsel for the Crown, Mr. Khoorshed, wrote to counsel for Mr. Simoni, Mr. Forte, regarding bail. Mr. Forte responded expressing, for the first time, his view that Mr. Simoni was no longer bound by the 2013 bail. Mr. Khoorshed responded by facsimile indicating his intention to seek a warrant for Mr. Simoni’s arrest if he failed to attend to address bail at a judicial pre-trial scheduled for May 20th.

[18] The parties attended for the pre-trial before Mr. Justice Hill on May 20th. Mr. MacKinnon appeared for the Crown and Mr. Forte appeared for Mr. Simoni. Mr. Hickey again appeared on his own behalf. The parties have filed a transcript of the pre-trial as part of the agreed evidentiary record on these applications.

[19] The issue of bail was raised with Justice Hill at the conclusion of the pre-trial. Mr. MacKinnon noted at that time that the issue of bail was “not in relation to Mr. Hickey; it’s in relation to Mr. Simoni. There’s – unfortunately there appears to be a dispute between Crown and Defence about his bail.” I took this to mean that Mr. Hickey had not raised the bail issue, which is not surprising given he was then self-represented.

[20] Mr. MacKinnon and Mr. Forte outlined their respective positions on bail to Justice Hill. The Crown remained of the view that the original bail terms had been revived when Justice Coats granted the certiorari application. Mr. Forte’s view was that the original bail terms fell with the discharge by Justice Brown and did not revive. Various options were referenced, including the possibility of a bail hearing in the Ontario Court of Justice or at the next appearance in the Superior Court on June 22, 2015. Justice Hill made no endorsement directing how bail was to be addressed.

[21] On May 28, 2015, Mr. Forte sent an email to Crown counsel. Although it was addressed to both Mr. Khoorshed and Mr. MacKinnon, it was only sent to Mr. Khoorshed. Mr. Forte indicated that he would keep June 3, 2015 available to deal with the issue of bail for Mr. Simoni. Mr. Simoni also made himself available to deal with bail on this date.

[22] Mr. Khoorshed did not respond to Mr. Forte’s email. Mr. MacKinnon did not respond having never received the email. Neither Mr. Forte nor Mr. Simoni attended court on June 3rd and Mr. Simoni’s bail was not addressed on that date. There was no follow up communication by any counsel subsequent to June 3rd.

[23] On June 3rd, Mr. Khoorshed sent the officer in charge of the investigation, Detective Whittaker, an email recommending that the police obtain a warrant for the arrest of both accused to address the outstanding bail issue. Detective Whittaker included an excerpt of this email in a “Supplementary Occurrence Report”.

[24] The Crown’s covering fax disclosing the report to counsel for the Applicants, filed as part of the agreed evidence on these Applications, suggests that the contents of the report were placed before Justice of the Peace Curtis on June 4, 2015. However, attempts to obtain transcripts of the police attendance on that date have revealed that the audio recording of the appearance is completely inaudible and unintelligible.

[25] Justice of the Peace Curtis issued arrest warrants for both accused.

[26] The Crown did not notify Mr. Hickey or counsel for Mr. Simoni that the warrants were issued and were to be acted upon.

[27] Mr. Simoni was arrested on June 10, 2015, and released on a recognizance by Justice Gray of this court on June 11, 2015 after a habeas corpus application.

[28] Mr. Hickey was arrested on June 14, 2015, after placing a call to the police for assistance in an unrelated matter. He was released by a Justice of the Peace with the consent of the Crown on June 15, 2015.

[29] Counsel before me for both the Crown (Mr. King) and Mr. Simoni now agree that the initial belief respecting bail was mistaken. They now agree that the original bail orders ceased to have effect after Justice Brown dismissed the charges in June, 2014 and were not revived when the Crown’s certiorari application was granted.

[30] Mr. Hickey’s counsel before me argues that the 2013 bail was continued by operation of s. 523(1) of the Criminal Code.

The Law and Analysis

Abuse of Process

[31] The abuse of process argument and related Charter arguments turn on the same factual allegation regarding the conduct of the trial Crown, Mr. Khoorshed.

[32] Both accused allege that that Mr. Khoorshed’s email to Detective Whittaker on June 3, 2015, recommending that the police seek an arrest warrant for the Applicants misrepresented facts, was improperly motivated and amounts to an abuse of process and attendant breach of s. 7 of the Charter.

[33] Counsel for Mr. Hickey argues in his factum that the original 2013 bail remained in effect, by operation of s. 523(1) of the Criminal Code or the presumption of regularity, at the time the warrant was issued and Mr. Hickey was arrested. He argues that the 2015 arrest of Mr. Hickey was without reasonable grounds, that Mr. Hickey was arbitrarily detained contrary to Charter s. 9, and that the arrest violated his right to life, liberty and security of the person in breach of s. 7.

[34] Counsel for Mr. Simoni argues that the warrant was issued by a process unknown to law. He also states that Mr. Simoni was already under the jurisdiction of the Superior Court through his ongoing appearances before this court and had effectively attorned to the court’s jurisdiction. He argues, similar to Mr. Hickey, that his ss. 7 and 9 of the Charter rights were thereby breached.

[35] Mr. Khoorshed’s June 3rd email recommending the police obtain arrest warrants was reproduced, in part, by Detective Whittaker in a “Supplementary Occurrence Report”. As I noted above, the evidence suggests that this document was placed before Justice of the Peace Curtis on June 4, 2015.

[36] The email excerpt reads as follows:

I am writing to recommend that you obtain an arrest warrant for HICKEY and SIMONI both.

This is an unusual situation, which has required some research to determine how to reinstate terms of bail, which, as per the direction of Mr. Justice Hill at the JPT must be reinstated. Because this is so unusual, I’m writing this e-mail in anticipation that you may use it as a basis for your ground for the new warrant in the first.

As you know, both accused were arrested in March of 2013 and originally held for bail. They were then both released on strict house arrest surety recognizances.

Those recognizances remained in effect until they were discharged at the completion of the preliminary inquiry on June 30, 2014.

Following a successful certiorari application, Justice Coats (of the Superior Court) ordered that both be committed to trial.

At that moment, both accused became, once again, persons “charged with an offence” (R. v. Graham (1986), 1986 CanLII 4643 (ON SC), 30 C.C.C. (3d) 176 (Ont. H.C.)). They are therefore able to be arrested again on a warrant in the first, just as they were arrestable at the time of the original offence, and on the basis of the same grounds.

What usually occurs after a successful Crown appeal is that the Crown, merely as a courtesy, speaks to counsel for the accused and arranges their surrender into custody so that a new bail can be put into effect without an arrest in the regular course.

In this case, Mr. MacKinnon had arranged with counsel for Mr. SIMONI (Marco Forte) for SIMONI to appear on June 3, 2015 in Courtroom 1 for this purpose. Mr. SIMONI did not appear. As a result, we must now simply bring him into custody in the regular course.

To be clear, I believe that he is arrestable on the strength of the existing indictment. Obtaining a warrant in the first is merely an overcautious step. Since a court has already found not just that there are grounds for an arrest, but that there is sufficient evidence to go to trial, there can be no question that the arrest is justifiable and appropriate.

[37] When the Applicants were discharged by Justice Brown in June, 2014 that discharge terminated their previous bail status. I agree with the position now taken by Mr. Simoni and the Crown that the discharge had the effect of completing the trial within the meaning of s. 523(1).

[38] There is nothing in the Criminal Code that deals with the statutory revival of a previous bail after a successful application for certiorari and an order of mandamus for committal is granted. This is in contrast to the case of direct indictments. Section 523(1.2) provides for the continuation of a prior bail after the Attorney General prefers a direct indictment. Parliament’s enactment of this provision resolved a line of authority that held a direct indictment’s commencement of a “new and distinct” proceeding meant that the accused’s previous bail status did not continue: R. v. Vukelich, 1993 CanLII 2438 (BC CA), [1993] B.C.J. No. 3076 (C.A.); R. v. Jones (1997), 1996 CanLII 12421 (ON CA), 32 O.R. (3d) 365 (C.A.); R. v. Lawson, 1994 CanLII 16821 (MB CA), [1994] M.J. No. 25 (C.A.).

[39] The practical complications with an automatic revival of bail after a successful application for certiorari are obvious. Consider a narrative, such as here, where the original bail involves sureties with terms. An automatic revival would by necessity conscript a surety to assume all of the obligations and risks of acting in that capacity potentially without that individual’s knowledge or consent. What if the surety was deceased at the point of any revival? What if the surety simply was not prepared to act in that capacity following the revival of previously discharged offences?

[40] It seems axiomatic that the consent of the surety to continue to act must be sought and obtained before the Court can release an accused on a surety bail. This requirement for consent becomes more pronounced in cases like this where there are strict terms (i.e. house arrest) and the amount of the surety is very high with all related risks. An automatic revival of bail is neither practical nor correct.

[41] There is no doubt that the issue of bail had to be dealt with following the discharge and revival of the charges.

[42] The offences alleged in the indictment are very serious, involving a sophisticated break-in to a bank vault and the theft of its contents. The Applicants had previously been released on bail with restrictive conditions, including house arrest and high quantum sureties.

[43] Both the Crown and Mr. Forte, ultimately, came to the conclusion that the Applicants were not bound by a bail order. I concur with those conclusions. I do not agree that the original bail continued to apply as argued by counsel for Mr. Hickey.

[44] Mr. Forte himself acknowledged the need to address bail at the pre-trial before Justice Hill on May 20th:

MR. FORTE: […][Mr. Simoni has] attended, either through counsel or personally, at every single Superior Court appearance since then. He’s essentially attorned to the jurisdiction. I know Your Honour…

THE COURT: Be that as it may we still need a bail…

MR. FORTE: Correct. I, I, agree. I, I agree with that. […]

[45] Mr. Hickey, who remained unrepresented at May, 2015, was not privy to the discussions between counsel about bail, other than at the judicial pre-trial. As stated above, this is not surprising given that he was representing himself throughout this time.

[46] Counsel for both Applicants argue that the Crown should have taken the least restrictive means of securing bail for both accused, in accordance with the principle of restraint which instructs the law of bail in Canada.

[47] In my view, both Mr. Hickey and Mr. Simoni could have been arrested without warrants pursuant to s. 495(1)(a) of the Criminal Code, which provides for such warrantless arrest where a peace officer, on reasonable grounds, believes the person has committed an indictable offence. Both accused would satisfy this criteria upon the charges being revived.

[48] In other words, I am of the view that the Crown was at liberty to seek the arrest of Mr. Hickey and Mr. Simoni pursuant to s. 495(1)(a) of the Criminal Code without obtaining any prior authorization to do so through a Justice of the Peace issuing a warrant.

[49] Given that the Crown did not rely on s. 495(1)(a), I will review the issuance of the arrest warrants by Justice of the Peace Curtis.

[50] A review of the record before the Justice of the Peace in this case has been frustrated by the fact that the audio recording of the appearance is inaudible. It is impossible to produce a transcript.

[51] Part of the audio recording of the attendance was played in court and the disc was filed as an exhibit. Muffled conversation is faintly audible but it is impossible to ascertain what was said.

[52] The only evidence in the record before me that suggests what material may have been before the Justice of the Peace is the occurrence report prepared by Detective Whittaker and the covering letter disclosing it to the Applicant’s counsel.

[53] Obviously, I am troubled by the absence of a reviewable record of the appearance before the Justice of the Peace. Access to reliable records is essential to permit meaningful review. However, I am not satisfied in the circumstances of this case that the absence of the audio record of the attendance before Justice of the Peace Curtis necessarily leads to the conclusion that the issuance of the warrant was unlawful.

[54] Despite the absence of the audio record of the attendance before him, the record before me establishes that the Justice of the Peace’s jurisdiction to issue the warrants in this factual matrix was straightforward.

[55] I agree with the view of Justice Gray where he noted at Mr. Simoni’s habeas corpus hearing on June 11, 2015 that s. 507(8) of the Criminal Code deals with procedure following a successful certiorari application and renewal of a trial, as occurred here:

(8) Where, on an appeal from or review of any decision or matter of jurisdiction, a new trial or hearing or a continuance or renewal of a trial or hearing is ordered, a justice may issue either a summons or a warrant for the arrest of the accused in order to compel the accused to attend at the new or continued or renewed trial or hearing.

[56] Section 507(8) of the Criminal Code does not require the existence of reasonable grounds to issue an arrest warrant, such as are required under s. 507(4). The Justice has discretionary authority to issue either a summons or an arrest warrant to compel the accused’s attendance. The fact that the Applicants had been appearing in the Superior Court in the absence of a summons or bail did not vitiate the Justice’s authority under the subsection.

[57] As the Crown notes, compelling an accused’s attendance before the court when required is one but not the only issue bail addresses. Equally important is the need to put into place release terms directed at ensuring the accused does not re-offend and to ensure public safety generally.

[58] After the certiorari application was granted, the Crown and police were at liberty to apply under s. 507(8) to ensure that the accused were bound by an appropriate recognizance of bail.

[59] The Justice of the Peace, upon receiving information that the trial was to be renewed pursuant to the order of mandamus and that no bail was in place, could lawfully issue a summons or an arrest warrant for the accused. The alleged offences in this case are serious. I cannot find that issuance of a warrant instead of a summons was unavailable or inappropriate in the circumstances.

[60] The Applicants’ counsel ask that I draw an inference from the evidentiary record that was before me that Crown counsel was driven by animus or some improper motive when he sent the June 3rd email to the police recommending they obtain arrest warrants.

[61] These Applications were argued on a paper record. No viva voce evidence from Crown or Defence counsel was proffered.

[62] The Applicants argue that improper motives are demonstrated by Mr. Khoorshed misrepresenting facts in his June 3, 2015 email to Detective Whittaker where he: failed to identify the fact that the Applicants had continued to appear in the Superior Court; failed to put forward Mr. Forte’s offer to accept service of a summons and his position on bail; and, by making untrue claims about the proposed June 3rd court attendance intended to address Mr. Simoni’s bail. They say that Justice of the Peace Curtis would have issued a summons not a warrant had he been apprised of these facts.

[63] Two options were available to the Crown pursuant to s. 507(8) to ensure that a new bail was put in place: (1) seek a summons, upon the return of which a consent bail could be agreed to and implemented by the parties; or (2) seek an arrest warrant, after the execution of which bail could be dealt with in the usual course.

[64] There is no question that the conduct of the Crown was not particularly courteous to his fellow counsel or Mr. Hickey. This discourteous conduct was not one sided. Mr. Forte precipitated the Crown’s abruptness where he failed to advise the Crown in a timely manner of his change of position from their previously shared belief that the original bail remained extant.

[65] Clearly, it would have been preferable for the Crown to advise counsel for Mr. Simoni of the intention to recommend that the police obtain arrest warrants. Faced with this prospect, counsel may have been able to agree to a consent bail and then arrange for the voluntary surrender of the accused to the police after the issuance of a warrant. Similarly, it may have been more generous to Mr. Hickey to wait until the next appearance date scheduled for June 22nd in the Superior Court and attempt to address the bail issue on the record.

[66] This Court’s jurisdiction to remedy an abuse of process with a stay of proceedings is limited to the “clearest of cases”: R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31. A stay of proceedings is the “most drastic remedy a criminal court can order”: Babos, at para 30; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 53. When the prosecution of serious criminal offences is halted, the truth-seeking function of the trial is frustrated, the public is deprived of the opportunity to see justice done and victims of crime are deprived of their day in court: Babos, at para. 30.

[67] In R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 73, and Babos, at para. 31, the Supreme Court of Canada identified two categories of cases in which a stay of proceedings will be warranted:

(1) where state conduct compromises the fairness of an accused’s trial (the “main” category); and,

(2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the “residual” category)

[68] The same test is applied to in both categories to determine if a stay of proceedings is warranted. It is articulated by Moldaver J. in Babos, at para. 32:

(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).

[69] The test to make out a prosecutorial abuse of process is extremely high. As the Supreme Court of Canada noted in R. v. Power, 1994 CanLII 126 (SCC), [1994] 1 SCR 601, at p. 616:

To conclude that the situation "is tainted to such a degree" and that it amounts to one of the "clearest of cases", as the abuse of process has been characterized by the jurisprudence, requires overwhelming evidence that the proceedings under scrutiny are unfair to the point that they are contrary to the interest of justice. … [C]ourts should be careful before they attempt to "second‑guess" the prosecutor's motives when he or she makes a decision. Where there is conspicuous evidence of improper motives or of bad faith or of an act so wrong that it violates the conscience of the community, such that it would genuinely be unfair and indecent to proceed, then, and only then, should courts intervene to prevent an abuse of process which could bring the administration of justice into disrepute. Cases of this nature will be extremely rare.

[70] The record before me demonstrates uncertainty respecting bail following Justice Coats granting certiorari. I have considered the conduct of the Crown in this context.

[71] I have also considered that the Crown attempted to address bail on consent with counsel for Mr. Simoni prior to seeking warrants. As stated above, a consent variation was provided by the Crown but never executed. Further, the email from Mr. Simoni’s counsel dated May 28th indicated that, while his client would attend court to address bail, Mr. Simoni would not agree to step into custody or the prisoner dock. Mr. Forte also suggested costs may be sought against the Crown. Simply stated, the Crown tried unsuccessfully to address bail on consent.

[72] I have also considered that the Crown’s June 3rd email was to the investigating officer in this matter, Detective Whittaker who, obviously, would possess her own knowledge of the details of the case. In other words, Mr. Khoorshed would not be expected to spell out every detail of the file in the email to Detective Whittaker given she would have independent and intimate knowledge of the case.

[73] Mr. Khoorshed’s email provided Detective Whittaker with the bail status. He advised that no bail was in place despite attempts.

[74] It is arguable that Mr. Khoorshed was in error where his email stated that counsel and Mr. Simoni arranged to attend court on June 3rd to address bail and did not show. However, I would not find any such error intentional.

[75] As noted, Mr. Forte’s May 28th email was addressed to Mr. MacKinnon and Mr. Khoorshed but only sent to the latter. It is entirely reasonable to suggest that Mr. Khoorshed may have believed that Mr. MacKinnon was going to respond to the email since it was Mr. MacKinnon who was the last Crown to address the bail issue when before Justice Hill for the May 20th pre-trial.

[76] What Mr. Forte’s May 28th email meant by “will keep June 3rd available to address bail” is not absolutely clear. It reasonably could be interpreted either to mean that counsel had marked his schedule to attend court that day to address bail or that he would keep that date open pending some further confirmation that bail would be addressed that day. The former interpretation would be support for the statement made by Mr. Khoorshed in his email that counsel and Mr. Simoni failed to attend June 3rd to address bail. Given the ambiguity, I cannot and do not find that Mr. Khoorshed intentionally misstated the arrangements to address bail on June 3rd.

[77] Mr. Khoorshed’s email provides his view that a warrant needs to be sought to bring both accused into custody to address bail. This was not an unreasonable position to take given that no bail was in place, bail terms were clearly required and the unsuccessful efforts to address bail on consent with the only counsel then acting on the file.

[78] While it may have been preferable and more courteous to provide the Applicants with the opportunity to turn themselves in, the Crown was not required to extend this courtesy. Regardless, Mr. Simoni’s counsel advised that his client would not surrender into custody even if such an offer had been extended.

[79] The issue of bail, as Justice Hill noted in the presence of all parties on May 20th, had to be dealt with. There is no doubt that release terms were required for the Applicants in the circumstances of this case. The arrest warrants ensured that bail would be dealt with expeditiously and whether or not Mr. Simoni and Mr. Hickey consented.

[80] There is no evidence before me that any trial unfairness arises from the conduct of the Crown.

[81] In conclusion, however abrupt it was, I am of the view that the Crown’s conduct in this case fell well short of the high threshold required to amount to an abuse of process.

[82] The Charter arguments advanced by the Applicants rest on the same allegations against the Crown.

[83] A lawful detention is not arbitrary within the meaning of s. 9: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 20. Correspondingly, an unlawful detention is necessarily arbitrary: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 55.

[84] Given all of the above details, I am not persuaded that the issuance of warrants and related arrests breached the Charter rights of Mr. Hickey or Mr. Simoni. In my view, both Mr. Hickey and Mr. Simoni were lawfully arrested and detained pursuant to the warrants issued by Justice of the Peace Curtis.

[85] Given my findings that there has not been an abuse of process or breach of the Applicants’ Charter rights, it is unnecessary to determine whether a stay is warranted in the circumstances.

The Inaudible Recording

[86] Counsel for Mr. Simoni argued in his factum that the unintelligible recordings of the June 4, 2015, appearance before Justice of the Peace Curtis amount to lost or destroyed evidence.

[87] As counsel for Mr. Simoni conceded during oral argument, the “missing evidence” does not speak to the guilt or innocence of either Applicant. As such, trial fairness is not compromised.

Disposition

[88] In the result, the Applications are dismissed.

Fitzpatrick J.

Released: March 18, 2016

CITATION: R. v. Hickey and Simoni, 2016 ONSC 1955

COURT FILE NO.: 9/15

DATE: 2016-03-18

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

JOHN HICKEY and ALDO SIMONI Applicants

ABUSE OF PROCESS APPLICATION RULING

Fitzpatrick J.

Released: March 18, 2016