Court File and Parties
Court File No.: CR-15-10000288-0000 Date: 2016-05-25 Ontario Superior Court of Justice
Between: Her Majesty the Queen, Respondent And: Jesse Dawson, Applicant
Counsel: Emile Carrington, for the Crown Mary Cremer, for the Applicant
Heard at Toronto: 9 and 10 May 2016
Reasons for Decision
(Application for Stay of Proceedings, ss. 7, 9, 11(e) and 24(1) of the Canadian Charter of Rights and Freedoms)
Mew J.
[1] Jesse Dawson was arrested and taken into custody at approximately 5:00 p.m. on Thursday, 13 March 2014. He was not taken before a justice until 10:00 a.m. on Saturday, 15 March 2014. In the interim, he remained in police custody.
[2] Section 503(1) of the Criminal Code, R.S.C. 1985, c. C-46 (as amended), requires a person detained in custody to be taken before a justice without unreasonable delay and in any event within 24 hours of arrest (where a justice is available).
[3] The Crown acknowledges that, in Mr. Dawson’s case, s. 503(1) was breached.
[4] This is not a case where it is alleged that a breach of s. 503(1) resulted in evidence being obtained by the police, or that the delay otherwise assisted the prosecution or prejudiced the defendant’s ability to defend the charges made against him.
[5] Furthermore, it cannot be said, in the circumstances of this particular case, that the breach of s. 503(1) prolonged the time which Mr. Dawson spent in custody. When he appeared on 15 March, his case was put over to 17 March, and then put over again until 19 March 2014, while arrangements were made for a surety. On 19 March a bail hearing was conducted before a Justice of the Peace who ordered Mr. Dawson detained. He then remained in custody until a bail review on 6 June 2014, at which time Mr. Justice Speyer of this court ordered Mr. Dawson to be released on bail with conditions.
[6] Although Mr. Dawson alleges other irregularities in relation to the time he spent in police custody, his principal complaint is that the breach of s. 503(1) violated his Charter rights such that the appropriate remedy should be a stay of the charges against him.
[7] The charges against Mr. Dawson are serious and include possession of a restricted firearm and possession of cocaine for the purposes of trafficking.
[8] After hearing the submissions of counsel on this application, I reserved my decision. On 13 May 2016 I informed the parties that, for reasons to follow, while finding that Mr. Dawson’s Charter rights had been breached, I would not be ordering a stay of proceedings. These are my reasons.
The Evidence
[9] Mr. Dawson was one of five individuals arrested at or near an apartment located at 4001 Steeles Avenue West, Toronto. Police observed and subsequently seized two handguns, a quantity of drugs (marijuana, heroin and cocaine), digital scales and multiple mobile phones.
At 31 Division
[10] Mr. Dawson was paraded before Staff Sgt. Warren Young at 31 Division Police Station at approximately 6:16 p.m. and was placed in an interview room (the evidence indicates that the “interview” room was not the place where formal interviews are conducted; it had no audio or video recording machinery). Mr. Dawson was then subjected to a level three search.
[11] Accounts of what happened next then vary.
[12] In an affidavit sworn by Mr. Dawson in support of this application on 20 April 2016, he says:
A male officer entered the interview room and started to question me. The officer advised me that the room was being audio and video recorded. He asked me a number of personal questions such as my name and date of birth. The officer then asked me if I wanted to call a lawyer and I said yes.
The officer dialed the telephone for me and I spoke to a lawyer in the interview room. The police officer stayed in the room while I was on the phone with the lawyer. Following my telephone call with the lawyer, the officer continued to question me.
The officer began questioning me about the events that took place that night. He asked why I was in the apartment and why I ran back into the apartment. The officer also asked me some questions about the drugs and the gun and who they belonged to.
The officer mainly questioned me regarding Mr. Kemon Edwards… It was clear to me that the officer primarily wanted information about Kemon Edwards because that’s what the majority of his questions were concerning.
[13] In his oral testimony, Mr. Dawson said that he was questioned about Mr. Edwards and Mr. Dawson’s own charges before he was offered an opportunity to speak with a lawyer. With respect to the call to the lawyer, Mr. Dawson said that a detective (who he could not name or describe) brought the phone to the room Mr. Dawson was in and dialed the number. Mr. Dawson claimed that while the officer was then outside of the room while Mr. Dawson made his call, the door was left open for the cord of the phone. When cross-examined, Mr. Dawson’s position shifted again and he said that the officer was standing at the door, partially inside. Mr. Dawson acknowledged that he did not tell the lawyer he spoke to that the officer was in the room.
[14] The Crown’s evidence is that the officer who facilitated the call to the lawyer was Detective Constable Marcelo Rossi. His only interaction with Mr. Dawson was in connection with placing that call. He says that he did not otherwise interview Mr. Dawson. He dialed the call to the lawyer, asked the lawyer to stand by, and then took the telephone receiver, which was on a long cord, into the interview room that Mr. Dawson was occupying. He then left and closed the door (it is possible for the cord to pass under the door while the door is closed). The only information which D.C. Rossi obtained from Mr. Dawson was his name. D.C. Rossi did not record how long the call lasted.
[15] While it does appear that Mr. Dawson also spoke with a social worker, there is no other record of him having been interviewed while he was in police custody.
[16] D.C. Rossi confirmed that the room that Mr. Dawson was being held in does not have audio or video recording equipment. There are other rooms at 31 Division which are used for interviews. Those rooms do have audio and video recording equipment.
The “Paperwork” Problem
[17] Detective Constable Pooya Ebrahimi had been given the responsibility of preparing case files for Mr. Dawson, the four other individuals arrested with Mr. Dawson, and for Kemon Edwards, who had been arrested separately.
[18] D.C. Ebrahimi worked through the night preparing the case and processing property. The officer was working with a computer software program designed for the police called “Versadex”. This program had been in use by the Toronto Police Service since October 2013. D.C. Ebrahimi began to encounter difficulties with the Versadex system. He was attempting to input data relating to approximately 120 separate charges against six individuals. The program was responding extremely slowly. Once the information had been inputted into the Versadex program it then had to be transferred over to another program, “eJust”, in order to print and create the informations to be used at the court appearances of the individuals concerned.
[19] D.C. Ebrahimi was conscious of the need to get the individuals concerned, including Mr. Dawson, to court on the 14th. However, he was unable to speed up the data input process. Even having completed it, he then encountered problems printing the documents. Indeed, as he described it, the printing of cases “crashed” the system. D.C. Ebrahimi recalls speaking to someone in the Crown Attorney’s office at 311 Jarvis Street (the Ontario Court of Justice) where he expected two of the individuals concerned to be taken (they were young offenders). The youth cases got printed out and arrangements were made for the two young offenders to appear at 311 Jarvis Street. They were taken down there in scout cars. D.C. Ebrahimi hoped that a similar arrangement could be made with respect to the adult individuals concerned. However, as of 2:00 to 2:30 p.m., the adult cases were still printing.
[20] Staff Sgt. Young, who had gone off duty at 9:00 p.m. on 13 March and returned at 1:00 p.m. on 14 March, was made aware of the problems that D.C. Ebrahimi was having. Staff Sgt. Young acknowledged that he was ultimately responsible for getting people to court within 24 hours of their arrest.
[21] Staff Sgt. Young became aware of problems with the “paperwork” immediately upon coming back on duty at 1:00 p.m. on 14 March. He knew that there was a problem with the Versadex program and that difficulties were being encountered printing the cases.
[22] According to Staff Sgt. Young, there had been problems with the Versadex program from the beginning. Over time, however, officers had become more adept with the system. Staff Sgt. Young’s understanding was that the more intricate the case, the greater the delays. He said that he had made a suggestion to his superiors that separate informations should be typed up to keep the process moving, but that suggestion was not implemented. Another approach, he suggested, but which was also not given effect, was just lay one charge and get the person before the court on that. Staff Sgt. Young acknowledges, however, that he did not personally contact the Toronto Police Service technical support people himself.
No Bail Court Appearance on 14 March
[23] Staff Sgt. Young was advised by D.C. Ebrahimi that the bail court at Old City Hall could not take prisoners that afternoon. It was reported to Staff Sgt. Young that the Crown had said it was too late for the adult prisoners to be brought before the court that day. However, he was able to speak to court officers at the cells at 311 Jarvis Street, where, he was told, prisoners could be taken until 2:45 p.m. that afternoon. Staff Sgt. Young was, as already referenced, able to place two young offenders in a scout car and, just barely, get those individuals to court before the 2:45 p.m. cut-off. While Staff Sgt. Young said that he would defer to D.C. Ebrahimi on the details, it was Staff Sgt. Young’s understanding that the adult prisoners could not be brought to the Old City Hall court by 2:45 p.m. and, hence, would not appear that day.
What Was Mr. Dawson Told?
[24] On a video recording from the afternoon of 14th March, Staff Sgt. Young can be heard telling someone that there has been a problem with paperwork, that “you” will be taken to 32 Division and that “you” are going to court tomorrow morning. Staff Sgt. Young says that he was talking to Mr. Dawson.
[25] Staff Sgt. Young said that he personally explained to the individuals concerned, including Mr. Dawson, why they were not going to make it to court within 24 hours. In his affidavit, Mr. Dawson says that he asked several times when he would be going to court and was advised that the police were finishing off the paperwork and that he could not be taken until it was completed.
[26] In his oral testimony Mr. Dawson said that the same detective who had interviewed him earlier told him that he would be going to court on Friday morning. Then another officer came and told him he was being taken to a different police station. Mr. Dawson said that he was confused. He did not ask the officer any questions. He claims he was not told anything further about bail or about court. He claims that he asked numerous times when he would be going to court but got ignored. He was held overnight on 14 March at 32 Division. Until he was brought to court at Old City Hall on the morning of Saturday 15 March, he said that no one had explained to him why he had not been brought to court on the Friday.
[27] When presented with the evidence of the video recording which featured Staff Sgt. Young talking to someone off camera, Mr. Dawson said that he did not hear what was being said on the day or even realise that he was being spoken to.
[28] The records indicate that Mr. Dawson was moved to 32 Division at 2:46 p.m. on 14 March 2014.
Court on 15 March
[29] Asked how he felt about appearing in court on 15 March, Mr. Dawson said that he felt relieved. He was happier. Even “excited”. Someone with higher authority than the police knew where he was. He was able to see his mother in the courtroom. After getting some advice from a lawyer, he was taken to the Maplehurst Correctional Facility.
Discussion and Analysis
[30] As already noted, the Crown concedes that there was a violation of s. 503(1) of the Criminal Code.
[31] On behalf of Mr. Dawson it is argued that, in addition:
(a) His right to liberty pursuant to s. 7 of the Canadian Charter of Rights and Freedoms was violated when he was detained for 40.5 hours before being brought before a justice after his initial arrest;
(b) The time delays in bringing Mr. Dawson before a justice were unreasonable and amounted to arbitrary detention or imprisonment, contrary to s. 9 of the Canadian Charter of Rights and Freedoms;
(c) The failure to bring Mr. Dawson before a justice within 24 hours to determine bail resulted in Mr. Dawson being denied reasonable bail without just cause, contrary to s. 11(e) of the Canadian Charter of Rights and Freedoms; and
(d) No remedy short of a stay of proceedings pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms would be appropriate in the circumstances.
[32] The Crown does not formally acknowledge that there was a breach of Mr. Dawson’s Charter rights.
[33] For reasons that I will elaborate on, in my view, Mr. Dawson’s rights under ss. 7 and 9 of the Charter of Rights and Freedoms were breached. His s. 11(e) rights were not breached for the simple reason that s. 503(1) does not require a bail hearing to be conducted within 24 hours. It simply requires that an arrested person is brought before a justice. In Mr. Dawson’s case, it took several days before sureties could be lined up and a bail hearing conducted. There is no evidence to indicate that had Mr. Dawson been brought before a justice on 14 March, rather than 15 March, it would have made any difference to the date on which his bail hearing was, ultimately, conducted.
Effect of Breach of Section 503(1)
[34] In R. v. Simpson (1994), 88 C.C.C. (3d) 377 (Nfld. C.A.), at p. 8, the court referred to the significance of s. 503 of the Criminal Code in these terms:
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.
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.
Where a person is arrested with or without a warrant, it is the duty of the arresting officer to ensure that the 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.
[35] In R. v. Brown, [2007] O.J. No. 2830 (S.C.J.), Nordheimer J. held that the absence of a defensible reason for multiple individuals who had been arrested not having been brought to court within 24 hours of their arrest constituted a failure to respect those individuals’ right to liberty under s. 7 of the Charter and their right against arbitrary detention under s. 9 of the Charter (Nordheimer J. also held that there had been a breach of the right to bail under s. 11(e) of the Charter however, as indicated above, there was not an unreasonable delay in providing Mr. Dawson with a bail hearing).
Application to Section 7 Rights
[36] To establish a breach of s. 7 of the Charter, an applicant must first establish that he or she has been deprived of the right to life, liberty or security of the person and then prove that such deprivation is contrary to the principles of fundamental justice: R. v. Beare, [1988] 2 S.C.R. 387 at para. 28.
[37] There can be little doubt that being detained by police for approximately 40.5 hours before being brought before a justice amounts to a deprivation of the right to liberty. As to whether such conduct would violate the principles of fundamental justice, the Newfoundland Court of Appeal in R. v. Simpson underscored the importance of s. 503 as a provision affecting the liberty of the subject. Although R. v. Simpson pre-dated the Canadian Charter of Rights and Freedoms, it has subsequently been cited (as, for example, by Nordheimer J. in R. v. Brown) as supportive of a conclusion that a breach of the section can rise to the level of contravening the principles of fundamental justice.
Application to Section 9 Rights
[38] In terms of s. 9, once the applicant’s detention exceeded the outer time limit of 24 hours, his detention became unlawful. As noted by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, at para. 54: “…a detention not authorized to by law is arbitrary and violates s. 9.”
[39] In R. v. Carter, 2016 ONSC 2832, the applicant was held in police custody after his arrest for approximately 36 hours before he was taken before a justice. The police officers responsible for the applicant’s detention were oblivious to or simply ignored a white board, prominently displayed in the booking area of the police station, showing the names and times of arrival of detainees. B.P. O’Marra J. noted, at para. 4, that the Crown had “properly” conceded that the delay in taking the applicant before a justice amounted to unlawful detention and that this constituted a breach of s. 9 of the Charter.
[40] For the foregoing reasons, I am satisfied that Mr. Dawson’s constitutional rights under ss. 7 and 9 of the Charter have been violated.
Remedy
[41] The remaining issue, then, is that of remedy. Section 24(1) of the Charter provides:
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.
[42] The applicant takes the position that:
The prejudice to the applicant’s statutory and Charter rights is a systemic issue that will continue to plague society and the justice system if the courts do not denounce the actions of the police; and
A stay of proceedings is the only remedy that is capable of redressing such prejudice.
[43] In a number of cases, the most recent of which is R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, demands for a stay of proceedings have generally been divided into two categories, namely: (a) where state conduct compromises the fairness of an accused’s trial (the “main” category); and (b) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the “residual” category).
[44] 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.
[45] In the context of the residual category of cases, which both counsel on the present application agree applies to the present case, a three stage process is applicable: R. v. Babos at para. 32.
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”;
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”.
[46] With respect to the first stage, Moldaver J. in R. v. Babos, summarised the 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”.
[47] The second stage of the test focuses on whether an alternative remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct. The goal is not to provide redress to an accused for a wrong that has been done to him or her in the past: R. v. Babos, at para. 39.
[48] The balancing required by the third stage of the Babos test invites the court to decide which of the two options better protects the integrity of the justice system – staying the proceedings, or having a trial despite the impugned conduct.
[49] Having regard to the first stage, the applicant characterises the conduct of the police as “systemic” and argues that the police are seeking to deflect responsibility for the breach by pointing the finger at a breakdown of technology. Although the defence acknowledges that technology can sometimes fail, what occurred in this case is emblematic of a more widespread malaise, namely, an over-dependence on technology combined with an inability to think outside the box when the technology fails.
[50] The defence suggests that at the very least the police could have had a more meaningful dialogue with a Crown attorney to find a way of bringing Mr. Dawson before the court on a timely basis. The not unreasonable suggestion is made by the defence that if a Crown had been apprised that there were multiple accused who were about to be on the receiving end of the breach of s. 503(1) of the Criminal Code, more effort might have been made to find a solution.
[51] Indeed, as Staff Sgt. Young himself indicated, other approaches such as typing or even writing out charges, or just laying one charge as, effectively, a “holding” charge, would have been ways to keep things moving and, at the very least, would have got Mr. Dawson in front of a justice. Unfortunately neither Staff Sgt. Young or his officers pursued any of these solutions.
[52] While, on a personal level, one can sympathise with an officer who worked for in excess of 24 hours continuously trying to tame an uncooperative computer system, and even with the staff sergeant, who candidly admitted that he was far less adept than D.C. Ebrahimi when it came to matters of technology, that is of little consolation from the perspective of Mr. Dawson, whose fundamental rights and freedoms were, as a result, infringed.
[53] During the course of argument, counsel were not able to refer me to any case involving similar circumstances to those presented on this application. Counsel for the Crown suggested that this was because what happened in Mr. Dawson’s case was a one-off situation. Counsel for Mr. Dawson, by contrast, effectively suggested that what happened was the thin end of the wedge and that if conduct of the type displayed by the police in this case was not effectively condemned now, similar circumstances would arise again and again in the future.
[54] While the conduct of the officers concerned can properly be characterised as negligent, like B.P. O’Marra J. in R. v. Carter, I do not find the police conduct to be intentional or malevolent (R. v. Carter at para. 35). On the other hand, the charges faced by Mr. Dawson are serious. Furthermore, there is, in my view, a significant societal interest in having the merits of such charges adjudicated. The potential consequences of such charges, if there is a conviction, are also significant.
[55] Ultimately, I have concluded that although the manner in which the police handled Mr. Dawson’s case was disappointing, and, in particular, showed a lack of resourcefulness or, as defence counsel put it, of “thinking outside of the box”, the shortcomings of the police do not rise to the level of evidencing a systemic problem. The circumstances do not lead me to conclude that there is likely to be repetition of the conduct that led to the violation of Mr. Dawson’s rights or that carrying forward the prosecution would offend society’s sense of justice.
[56] Having so decided, I then move to the second stage of the R. v. Babos analysis. This requires me to consider whether there are any appropriate remedial options other than ending the prosecution.
[57] The authorities referred to me by counsel indicate that other options available to me include:
- Clear judicial denunciation
- Exclusion of evidence
- Reduction of sentence
- An award of costs against the Crown
[58] The option of exclusion of evidence does not really have application to this case since there is no allegation that the contravention of s. 503(1) was related to any evidentiary issue that might arise at trial.
[59] Although both counsel recognise judicial denunciation or condemnation of police conduct as a realistic option in this case, the defence raises the concern that any such denunciation or condemnation is unlikely to have a meaningful impact. Crown counsel disputes this, and indicates that the Toronto Police Service and other police services in Ontario do take very serious account of judicial criticism of police practices and behaviour.
[60] The remedy of reduction of sentence is also commonly granted for the type of breach and issue in this case: R. v. S.B., 2014 ONCA 527, [2014] O.J. No. 3238 (C.A.) at para. 13; R. v. Rashid, 2010 ONCA 591, [2010] O.J. No. 3789 (C.A.) at para. 3; R. v. Carter, 2016 ONSC 2832 at para. 37.
[61] However, the defence position is that a reduction of sentence is only meaningful if an accused person, who is of course presumed innocent, is ultimately found guilty.
[62] There are few cases in which an award of costs has been held to be the only effective remedy: R. v. Brown, at para. 20; R. v. Zarinchang, 2010 ONCA 286 at paras. 67-7. Indeed, as the Court of Appeal recently noted in R. v. Singh, 2016 ONCA 108, at para. 38:
A costs award against the Crown will not be an “appropriate and just remedy” under s. 24(1) of the Charter absent a finding that the Crown’s conduct demonstrated a “marked and unacceptable departure from the reasonable standards expected of the prosecution”, or something that is "rare" or "unique" that "must at least result in something akin to an extreme hardship on the defendant" … [references omitted]
[63] Having taken into account all of the circumstances of the case, including the alternatives to ordering a stay of proceedings, the third stage of the Babos test requires me to weigh in the balance whether to stay the proceedings or allow the trial to proceed.
[64] As already alluded to, the charges against Mr. Dawson are very serious. There is a significant societal interest in having such charges adjudicated on their merits.
[65] I am not persuaded that this is the clearest of cases nor that there is no remedy, other than a stay of proceedings, reasonably capable of repairing the prejudice caused to the applicant as a result of his Charter rights being infringed.
[66] The criticisms of the police conduct which I have offered in these reasons are intended to admonish those responsible. I am satisfied that such denunciation, together with a meaningful reduction in sentence in the event that Mr. Dawson is convicted on some or all of the charges, would adequately reflect and remedy the seriousness of the Charter breaches.
Other Charter Violations Alleged
[67] With respect to the other alleged violations of Mr. Dawson’s Charter rights, Mr. Dawson’s evidence with respect to the manner in which he was given an opportunity to consult with counsel and his questioning by the police was contradictory. Not only was his evidence at odds with the evidence of the police officers and, indeed, police records, the accuracy of which is not challenged, but Mr. Dawson’s own accounts were contradictory when one reviews what he said in his affidavit and what he said in his vive voce evidence. In short, I do not accept the evidence that a police officer remained in the interview room while Mr. Dawson exercised his right to consult with counsel. Nor do I accept Mr. Dawson’s evidence that he was interviewed by the police (in which regard Mr. Dawson said that he was repeatedly told that the room he was in would contain audio and video recording equipment when, quite clearly, it did not).
[68] I am therefore not persuaded, on a balance of probabilities, that the interviews or the consultation with counsel occurred in the manner described by Mr. Dawson.
[69] Consequently, I do not find there to have been any additional violations, beyond those already identified, of Mr. Dawson’s Charter rights arising from the events that occurred while he was in police custody.
Conclusion
[70] For the foregoing reasons I find that:
(a) The police violated s. 503(1) of the Criminal Code in relation to Mr. Dawson;
(b) Mr. Dawson’s rights under ss. 7 and 9 of the Canadian Charter of Rights and Freedoms were violated as a result;
(c) The police violated s. 503(1) of the Criminal Code in relation to Mr. Dawson;
(d) The police violated s. 503(1) of the Criminal Code in relation to Mr. Dawson;
(e) Mr. Dawson’s rights under ss. 7 and 9 of the Canadian Charter of Rights and Freedoms were violated as a result;
(f) The appropriate remedies under s. 24(1) of the Charter are a judicial denunciation or condemnation of the police conduct which resulted in Charter breaches and a meaningful reduction of sentence in the event that Mr. Dawson is convicted on any or all of the charges which he faces; and
(g) No other violations of Mr. Dawson’s Charter rights occurred.
Graeme Mew J.