Court File and Parties
COURT FILE NO.: CR-13-90000708-0000 DATE: 20160502 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – CONRAD CARTER Applicant
Counsel: S. Siew, for the Crown S. Agbakwa, for the Defendant
HEARD: April 14 and 15, 2016
Ruling on an Application for a Stay of Proceedings or a Reduction in Sentence
B. P. O’Marra, J.
Background
[1] The applicant was arrested on February 19, 2011 and charged with two counts of trafficking in cocaine and two counts of possession of the proceeds of crime. His trial proceeded before me for five days in June 2015. On September 17, 2015, I released written reasons and found that the Crown had proven the four offences beyond a reasonable doubt. I withheld entry of the findings of guilt pending an application to stay the proceedings or in the alternative, for a reduced sentence.
The Application
[2] The applicant was held in police custody after his arrest for approximately thirty-six hours before he was taken before a justice. This was a breach of s. 503(1)(a) of the Criminal Code of Canada, R.S.C. 1985, c. C-46, which provides as follows:
Where a justice is available within a period of twenty-four hours after the person has been arrested by or delivered to the peace officer, the person shall be taken before a justice without unreasonable delay and in any event within that period.
[3] The applicant claims there has also been a breach of s. 9 of the Canadian Charter of Rights and Freedoms, which provides as follows:
Everyone has the right not to be arbitrarily detained or imprisoned.
[4] The respondent has properly conceded that the delay in taking the applicant before a justice constituted an unlawful detention. The respondent also conceded that this constituted a breach of s. 9 of the Charter.
[5] The issue on this application is what remedy to impose for the Charter breach. The applicant seeks a stay of proceedings. In the alternative, he seeks a significant reduction in sentence. The respondent submits that a stay is not the appropriate remedy and that a modest reduction in sentence is appropriate.
The Evidence
[6] The applicant was arrested on February 19, 2011 at 8:45 p.m. by two members of the Toronto Police Service (“TPS”) after he stepped off an elevator in the apartment building where he lived in Toronto. He was driven to 12 Division and arrived shortly after 9:00 p.m.
[7] A video was filed on consent depicting five events that occurred at 12 Division and later at 11 Division. This compilation spans the time from approximately 9:02 p.m. on February 19, 2011, to 6:47 p.m. on February 20, 2011. There was no audio track for the events at 12 Division. There was an audio track for the events at 11 Division. The video record showed the following:
- February 19, 2011 – At 9:02 p.m., the applicant is dropped off at 12 Division by the arresting officers. He was booked at 11:18 p.m. (no audio).
- February 20, 2011 – At 6:46 p.m., the applicant is searched at 12 Division and placed into a police wagon for transport to 11 Division (no audio). At 7:07 p.m., the applicant is booked at 11 Division. He is told that he will be going to court in the morning. In response to a question from the booking officer, the applicant said he felt sick.
- February 21, 2011 – At 6:39 a.m., the applicant is placed into the police wagon for transport to court.
[8] On February 21, 2011, the applicant was granted bail in the amount of $2,500.00, without deposit but with one surety and several conditions.
[9] Staff Sergeant Katie Shaw has been a member of the TPS for twenty-nine years. She was the officer in charge at 12 Division for the midnight shift on February 19, 2011. Her duties commenced at 9:30 p.m. on February 19, and she was off duty at 5:30 a.m. on February 20. She assumed responsibility as the officer-in-charge from Sergeant McKeouwn.
[10] Staff Sergeant Shaw described the duties of the officer-in-charge. A very important aspect of those duties is related to the booking of prisoners and keeping track of who is being held at the station and for how long. The process of booking a new prisoner who has been brought into the station is recorded on video. The officer-in-charge would ask the detainee if he or she knows why s/he is there, advise him/her of his/her rights and inquire if s/he has any injuries or health issues. When that process is complete, steps would be taken to arrange for prisoner transport to another division. At the time of these events, 12 Division was not a central lock-up. Any prisoner who was being held for a show cause hearing would have to be transported to 11 Division where fingerprints and photos would be taken as well as further paperwork. 11 Division is a twenty to thirty-minute drive away from 12 Division. Staff Sergeant Shaw advised that 12 Division now has facilities to complete pictures and prints for persons who are detained. At the time of these events, 11 Division was open twenty-four hours a day, seven days a week. The detainees who would be transported from 12 Division to 11 Division would be those who were not viewed as appropriate for release from the station. It was part of her duties as the officer-in-charge to assess whether a particular person should be released from the station.
[11] Staff Sergeant Shaw indicated that she was well aware of the importance of the provisions of s. 503 of the Criminal Code. She did not recall any specific training related to that. She described a white board that was prominently displayed in the booking area that would show the name of each prisoner who was being held at 12 Division and when they had arrived. A glance at the board would indicate the specific name and time of arrival of any persons being held. Staff Sergeant Shaw described her own procedure if there was a person being held at the station who was getting close to the twenty-four hour period without yet having gone to court. It was her practice in those situations to call for a cruiser from the road to attend at 12 Division and transport the detainee to 11 Division and then to court. She is aware that courts are open from 10:00 a.m. to 5:00 p.m. and that the cut-off time for having a person dealt with in court is usually about 2:30 p.m. She is aware of some situations where persons have been held for longer than the time prescribed in the Criminal Code. In her experience, those instances were rare.
[12] Staff Sergeant Shaw described her own dealings with the applicant. She was aware when she came on duty that he was in the station and he had been arrested for two counts of trafficking in a narcotic. She does not recall speaking to anyone about a form of release for the applicant. She did not inquire of anyone as to the particular circumstances of the applicant. Her recollection is that Sergeant McKeouwn from the prior shift had decided that the applicant would be held for a show cause hearing. Therefore, he would have to be transported at some stage from 12 Division to 11 Division. The applicant was lodged in his cell at 11:17 p.m.
[13] Staff Sergeant Shaw indicated that it was her practice not to release anyone without a show cause who was charged with trafficking in a narcotic. She was not aware of any requests from the applicant for any medical attention. The applicant was still at 12 Division when she went off duty at 5:30 a.m. She was relieved by Sergeant Hildred. By that time, the applicant had been in police custody for approximately nine hours. Staff Sergeant Shaw testified that the applicant had been interviewed before being put into a cell at 11:17 p.m. She had no personal knowledge of that. In fact, there is no evidence that the applicant was interviewed by any investigators at 12 Division. She recalls that she placed a call for the prisoner wagon to transport the applicant but cannot recall the time of the call. When she went off duty at 5:30 a.m., she did not tell the succeeding sergeant that the applicant was still being held at the station. However, the white board would have revealed that information to the succeeding officer-in-charge.
[14] Staff Sergeant Shaw started her next shift at 9:30 p.m. on February 20, 2011. She took over from Sergeant Gregory. At that time, the applicant’s name was not on the board and, as far as she knew, he was no longer at 12 Division. She was not aware that there had been any issue about delay in getting the applicant to court in this case until she was contacted by the Crown Attorney in the fall of 2015. In cross-examination, she indicated that she was surprised to learn that the applicant was still at 12 Division as late as 6:47 p.m. on February 20, 2011. She agreed that for the time that the applicant spent at 12 Division, four successive sergeants had carried out their duties at the division.
[15] Sergeants McKeouwn, Hildred and Gregory did not testify on this application.
[16] The applicant testified on the application. He is twenty-three years old. He was eighteen years old when he was arrested on February 19, 2011. He had no criminal record or outstanding charges as of the date of his arrest.
[17] The applicant testified that he felt sick, dizzy and nauseous when he was first taken to 12 Division. He was asked if he had any health issues and he said he felt sick. He told various officers that he felt unwell in the course of his first night in custody. He was kept in a holding cell and could not tell what time it was. An officer occasionally walked by his cell and the applicant told him that he felt sick and had stomach flu. There was no reaction by the officer.
[18] The applicant did not recall any dealings with Staff Sergeant Shaw at 12 Division.
[19] The applicant was transported to 11 Division in the early evening of February 20, 2011. He had not received any medical attention despite what he told an officer at 12 Division.
[20] The audio of the booking at 11 Division included the applicant telling the officer in charge that he did not feel well. He did not receive any form of medical attention.
[21] After he was released on bail, he still felt unwell but did not seek any medical attention.
The Law
[22] The obligation of the police is to bring an arrested person who is detained before a justice “without delay”. Twenty-four hours is the outer limit of what a reasonable period is, where a justice is available. The police do not have an unqualified right to keep someone in custody for the purposes of investigation for a twenty-four hour period before taking him before a justice: see R. v. Koszulap, (1974), 20 C.C.C. (2d) 193 (Ont. C.A.).
[23] In R. v. Simpson (1994), 88 C.C.C. (3d) 377 (Nfld. C.A.), at p. 8, rev’d on the issue of remedy , [1995] 1 S.C.R. 449, the court referred to the significance of s. 503 of the Criminal Code:
Section 503 may be one of the most important procedural provisions of the Criminal Code. The liberty of the subject is dominant. A person not convicted of an offence should never be held in custody except in accordance with constitutionally valid provisions of the Criminal Code or other legislation. In some jurisdictions, even during the sitting week, the police will bring an arrested person before a justice, as soon as the various tasks that generally follow an arrest are completed, for hearing as to whether the person should be released or detained. If necessary, a trial will be interrupted for this purpose.
The paramountcy of the liberty of the subject has been recognized in English law from the earliest times. Freedom is a fundamental right. It is not to be taken away except in strict accordance with the law.
The prerogative writ of habeas corpus was developed as a remedy for unlawful detention. The superior courts are entrusted with the function of ensuring that any person improperly detained shall be released.
Where a person is arrested with or without a warrant, it is the duty of the arresting officer to ensure that that person is not detained any longer than is absolutely necessary and that, if he or she is not authorized by law to bring about the release, the person is brought before a justice of the peace who may determine whether the detention should continue or not and, if it is not to continue, what lawful conditions should be attached to the release.
[24] In R. v. Mangat (2006), 209 C.C.C. (3d) 225 (Ont. C.A.), the trial judge held that the police detained the accused in contravention of s. 503 of the Criminal Code with the clear goal of obtaining an inculpatory statement. The trial judge found this to be a flagrant breach of s. 9 of the Charter and ordered a stay of proceedings as the only appropriate remedy. On appeal by the Crown, the stay of proceedings was set aside. At paras. 12 and 14-16, the Court of Appeal addressed the remedy of a stay of proceedings:
We accept the Crown’s submission. A stay of proceedings is a drastic remedy reserved for the “clearest of cases”: R. v. O’Connor, [1995] 4 S.C.R. 411 at para. 68. Whether the wrongful conduct that is in issue causes prejudice to the accused because of an unfair trial, or is harmful to the integrity of the justice system, a stay of proceeding is appropriate only where the following two criteria are satisfied:
i. The prejudice caused by the breach will be manifested, perpetuated or aggravated through the conduct of the trial or its outcome; and
ii. No other remedy is reasonably capable of removing that prejudice: R. v. Regan (2002), 2002 SCC 12, 161 C.C.C. (3d) 97 (S.C.C.) at paras. 53 and 54. See also R. v. O’Connor, supra, and Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391.
While the findings of the trial judge raise important concerns about the arresting officer’s conduct, because the respondent’s statement to the police was excluded, there was no possibility that conduct would affect the fairness of the respondent’s trial. In our view, in granting a stay of proceedings, the trial judge failed to address the fundamental issue of whether the prejudice caused by the breach of the respondent’s s. 9 Charter rights would be manifested, perpetuated or aggravated through the conduct of the trial or its outcome.
In particular, the trial judge made no findings indicating that a stay was necessary in order to address systemic issues relating to the officer’s conduct; nor did she explain why the lesser remedy of excluding the respondent’s statement would not be adequate to address the prejudice that arose from the officer’s conduct.
The fact that the Crown failed to prove that the respondent’s statement was voluntary and that it would therefore be excluded in any event, does not compel a finding that exclusion of the statement is not an adequate remedy. This is because the issue in question is not punishment of the police; rather, it is whether the prejudice caused by the breach of the respondent’s s. 9 Charter rights can be adequately addressed by a lesser remedy than a stay. On our review of the record and the trial judge’s findings, we see no basis for concluding that the exclusion of the respondent’s statement under s. 24(2) of the Charter was not an adequate remedy to address the prejudice arising from the breach of the respondent’s rights.
[25] The test for granting a stay was summarized in R. v. S.B., 2014 ONCA 527, 121 O.R. (3d) 145, at paras. 18 and 19, quoting R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309:
Generally, there are two categories of abuse of process cases: cases in which the state conduct compromises the fairness of the accused’s trial and cases in which the state conduct risks undermining the integrity of the judicial process. The appellant’s case falls within the second, or residual, category. As the trial judge recognized, in cases within this category the court must consider three requirements to determine whether a stay of proceedings is warranted. These requirements are summarized in Babos at para. 32, referring in particular to Regan:
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);
There must be no alternative remedy capable of redressing the prejudice; and
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).
Where the accused relies upon the residual category, the first stage of the test requires the accused to show that the state has engaged in conduct that is offensive to notions of fair play and decency and that proceeding with the trial will be harmful to the integrity of the justice system. In Babos, Moldaver J. summarized this first requirement in these terms, at para. 35: “state conduct will be so troublesome that having a trial - even a fair one - will leave the impression that the justice system condones conduct that offends society’s sense of fair play and decency”.
Analysis
[26] I accept the evidence of the applicant that he advised officers at both 12 Division and 11 Division that he did not feel well. I also accept his evidence that no actions were taken by officers at either station to address his complaints.
[27] Based on the evidence of Staff Sergeant Shaw and the audio of the booking at 11 Division, it is standard practice at the booking stage to ask a detainee, inter alia, whether he has any injuries or health issues. If there is a positive response to either of those, presumably there should be at least some follow-up by the officer-in-charge and further action taken if required. That did not occur in this case.
[28] The use of a white board, prominently displayed in the booking area, showing the names and time of arrival of detainees is a “low tech” but effective notice to succeeding officers-in-charge. Keeping track of who is being held and for how long is an important part of the duties of an officer-in-charge. It appears Sergeants Hildred and Gregory were oblivious or simply ignored the prominent notice that the applicant had been at 12 Division from shortly after 9:00 p.m. on February 19, 2011.
[29] Unlike the facts in Mangat, this is not a case where the police detained a suspect in contravention of s. 503 for the purpose of obtaining an inculpatory statement. That case involved a deliberate intention to breach s. 503 of the Code, thus breaching s. 9 of the Charter. There is no evidence on the case before me that the over-holding of the applicant was for the purpose of gathering any evidence.
[30] The over-holding of the applicant in this case is exacerbated by the failure of the police to follow-up in any way on the information that the applicant felt unwell. I was impressed that the applicant did not appear to exaggerate the extent of his illness in his testimony. It appears that his complaints were simply ignored by the police.
[31] The applicant does not allege any prejudice to his fair trial interests by the conduct of the police. He relies on the residual category to impose a stay. That is based on the submission that even a fair trial will leave the impression that the justice system condones the police conduct that offends society’s sense of fair play and decency.
[32] The applicant further submits that there has been no explanation for why Sergeants Hildred and Gregory in particular took no action to expedite the applicant getting to court in a timely way. He submits those officers either intentionally failed to act or were negligent in not seeing that there was a pressing need to get the applicant processed and to court.
[33] The provisions of s. 503 of the Criminal Code are not a mere technicality. A person who is arrested and held by the police has a constitutional right to be brought before a justice in a timely way. That process includes a public record of any injuries or health complaints.
[34] The applicant submits that “the state” has failed to take their legal and constitutional obligations seriously and that a stay is the appropriate remedy.
[35] The over-holding of the applicant in the particular circumstances of this case was relatively serious. The conduct of the officers-in-charge who succeeded Staff Sergeant Shaw was at least negligent. I do not find that it was intentional or malevolent. The two charges of trafficking in cocaine put the applicant into a reverse onus position in terms of bail based on s. 515(6)(d) of the Criminal Code. The decision to hold him for a show cause hearing was reasonable. However, there was still an obligation to get the applicant before a justice in a reasonable time and within twenty-four hours in any event.
[36] I have already ruled that the Crown has proven the alleged offences beyond a reasonable doubt. The two counts of trafficking in cocaine are very serious even though the dollar value was not high. There is a significant societal interest in an adjudication on the merits of such charges. The applicant faces a potentially lengthy jail term if convictions are entered and the matter proceeds to sentencing.
[37] I am not satisfied that this is the clearest of cases nor that there is no other remedy reasonably capable of removing the prejudice caused to the applicant than a stay of proceedings. I am confident that a significant reduction in sentence would reflect the seriousness of the Charter breach. The respondent’s submission of a three-day reduction in the sentence would be inadequate for that task. I will hear the submissions on sentence and then factor in a significant reduction along with any other appropriate sentencing factors.
[38] The applicant made a further brief submission in support of a stay towards the end of his presentation. He suggested that I can and should also consider the lost evidence aspect of my ruling dated September 17, 2015. At paras. 43 through 54 inclusive of that decision, I declined to order a stay based on lost evidence. I ruled that the failure to preserve and disclose the evidence in question was a fruitful area for cross-examination of the police and relevant to their credibility and reliability. Counsel for the applicant made very effective reference to those issues on the trial.
[39] After careful consideration, I am not satisfied that resort to the lost evidence on the trial in combination with the over-holding by the police renders this the clearest of cases that entitles the applicant to a stay of proceedings.
Result
[40] The application for a stay of proceedings is dismissed. I will fashion an alternative remedy based on a significant reduction of sentence after I receive submissions and any further evidence from both counsel.
[41] I am grateful for the careful and thorough presentations of both counsel in this case.
B. P. O’Marra, J.
Released: May 2, 2016