OTTAWA COURT FILE NO.: 14-5224
DATE: 20180307
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
RYAN SALT
Respondent
Allyson Ratsoy, for the Crown
Solomon Friedman and Fady Mansour, for the Respondent
HEARD: 26 February 2018 at Ottawa
reasons for decision
(Application for Ruling Pursuant to s. 653.1 of the Criminal Code)
MEW J.
[1] On 22 January 2018, Phillips J. dismissed an application made by Ryan Salt pursuant to section 11(b) of the Canadian Charter of Rights and Freedoms, seeking a stay of drug trafficking charges faced by him. A similar application made by his co-accused, Hisham Alkhalil, was allowed and the charges against that individual were stayed.
[2] After Phillips J.’s decision was pronounced, but before Mr. Salt had been formally arraigned, defence counsel drew the judge’s attention to a factual error in the judge’s reasons on the 11(b) application.
[3] Phillips J. was, to use his own words, “initially dismissive” of counsel’s complaint. However, upon further reflection and review of his bench notes, Phillips J. realised that he had, indeed, “misconstrued one of the key facts bearing on the effect of the interim release conditions upon the liberty interest of the accused”. He then placed on the record further remarks which were intended to correct the factual error that had been made and, having done so, stated that the correction did not change the result he had previously arrived at.
[4] Following more reflection, and having in mind a recent decision – R. v. Krouglov, 2017 ONCA 197 – which addressed the issue of whether the correction of an error made by a judge rendering a decision could give rise to a reasonable apprehension of bias, Phillips J. stated on the record:
So here is my concern. I included in my decision something which I now confess was arrived at through an error, a misunderstanding. And I am telling you again, that it would not have made a difference. I would have come to the same conclusion. But would an informed and reasonable observer, including Mr. Salt think that my position in that regard, my insistence that it does not matter, is an after-the-fact justification?
[5] Phillips J. asked for, and thereafter received, further submissions arising from the concern he had raised.
[6] On 24 January, Phillips J. ruled that as a result of what had happened, an informed member of the public would apprehend that his comments after the error had been drawn to his attention were an after-the-fact justification for his already pronounced decision, rather than an articulation of the reasoning that had led to the decision. As a result, he concluded that his impartiality had been compromised, such that it would be inappropriate for him to serve as the trial judge.
[7] Phillips J. did not, however, purport to quash the decision he had rendered on Mr. Salt’s section 11(b) application as to do so “would be akin to sitting as an appeal court over myself”. Because Mr. Salt had not been arraigned, Phillips J. considered it inappropriate to declare a mistrial. Rather, he simply adjourned the matter to proceed again before another judge, adding that Mr. Salt could, if he wished, bring another section 11(b) application.
[8] The adjournment of the trial will result in a further delay in the conclusion of Mr. Salt’s trial of approximately ten months.
[9] Another section 11(b) application by Mr. Salt has been scheduled to be heard by me on 24 and 25 May 2018.
[10] In advance of the hearing of that application, an issue has arisen as to the status of the decision made by Phillips J. on Mr. Salt’s previous application.
[11] The Crown, relying on section 653.1 of the Criminal Code, argues that the section 11(b) ruling made by Phillips J. presumptively remains in effect and that the interests of justice do not require the application to be re-argued before another judge. Rather, the scope of the new section 11(b) application brought by Mr. Salt should be restricted to the period between the release of Phillips J.’s decision on 22 January 2018 and the end of the trial – now anticipated to be on 16 November 2018.
[12] Mr. Salt questions the application of section 653.1, arguing that Phillips J.’s decision on the section 11(b) application is irreparably tainted by his subsequent recusal. Alternatively, if section 653.1 does apply, the interests of justice favour Mr. Salt being allowed to ask the judge hearing the new section 11(b) application to consider the entire period between the date he was charged and the anticipated end of his trial, not just the ten-month period suggested by the Crown.
Does Section 653.1 Apply?
[13] Section 653.1 of the Criminal Code provides as follows:
In the case of a mistrial, unless the court is satisfied that it would not be in the interests of justice, rulings relating to the disclosure or admissibility of evidence or the Canadian Charter of Rights and Freedoms that were made during the trial are binding on the parties in any new trial if the rulings are made – or could have been made – before the stage at which the evidence on the merits is presented.
[14] The Crown argues that the decision of Phillips J. must stand. His finding of reasonable apprehension of bias related to his post-decision reasoning and to the impact that would have on his ability to continue as trial judge. He expressly left in place – as he was bound to – his substantive decision on Mr. Salt’s section 11(b) application. Furthermore, section 653.1 expressly applies to previous Charter rulings and presumes that such rulings will stand unless the court is satisfied that it would not be in the interests of justice.
[15] Although Mr. Salt had not been arraigned and, hence, Phillips J. did not formally declare a mistrial, a contextual and purposive approach should be taken to the interpretation of the term “trial”: R v. Brahaney, 2016 ONCJ 395, at para. 16. It is common practice in the criminal courts for “pre-trial applications” of precisely the nature specified in section 653.1 (that is, applications for disclosure and regarding the admissibility of evidence and Charter issues) to be scheduled and decided by the judge assigned to preside over a trial prior to arraignment and the trial proper. According to the Crown, the purposive effect of section 653.1 would be greatly devalued if it applied only post-arraignment.
[16] By way of an example of a purposive approach, in R. v. Wabason, 2015 ONSC 6128, a judge had made a pre-trial ruling on the voluntariness of a statement. The scheduled trial before that judge did not proceed, and by the time of the rescheduled trial, the original judge had retired. Platana J. considered the status of the voluntariness ruling made by the previous judge and, notwithstanding that no mistrial had been declared, he reasoned, with reference to section 653.1, that the intention of the legislation was to preserve prior rulings unless the interests of justice required re-litigation.
[17] Mr. Friedman, Mr. Salt’s counsel, does not take serious issue with that analysis. He agrees that there is a principled basis for not confining the application of section 653.1 to rulings made after arraignment of the accused where a mistrial has been formally declared. But he argues that the Crown’s position overlooks the reality that in this case the section 11(b) application should be heard afresh because, having found that he had committed an error, Phillips J. concluded that his subsequent attempt to correct that error had given rise to a reasonable apprehension of bias on his part. Accordingly it cannot be said that the section 11(b) issue was fairly decided and that the order that another judge conduct the trial was made for reasons unrelated to the section 11(b) application.
[18] The problem with that argument is that it does effectively require me to act as a court of appeal. Phillips J. made a factual mistake. Everyone agrees about that. The determination of whether or not that mistake was material to the outcome is typically the business of an appeal court. And not all errors made by a judge at first instance will result in a different outcome on appeal.
[19] If I am to ignore a ruling made by a colleague with coordinate authority to my own, there must be some proper juridical basis for me to do so. Section 653.1, if applicable, provides such a basis.
[20] Having regard to the other submissions made, I agree with the Crown that the term “trial” as it is used in section 653.1 should be applied in a purposive manner that reflects common practice.
[21] In the present case, Phillips J. had been appointed to preside over Mr. Salt’s trial and, as such, was hearing a section 11(b) application during the first of several weeks that had been allocated for the trial and with the full expectation that if the application was denied, Mr. Salt would be immediately arraigned and the trial would proceed.
[22] Given that context, I find that section 653.1 should govern the issue at hand.
The Interests of Justice
[23] The phrase “the interests of justice” is used throughout the Criminal Code. As Doherty J.A. explained in R. v. Bernardo (1997), 1997 CanLII 2240 (ON CA), 121 C.C.C. (3d) 123 (Ont. C.A.), at para. 16:
It takes its meaning from the context in which it is used and signals the existence of a judicial discretion to be exercised on a case-by-case basis. The interests of justice encompass broad based societal concerns and the more specific interests of a particular accused.
[24] Section 653.1 of the Criminal Code is relatively new. It came into effect on 15 August 2011.
[25] In R. v. Windebank, 2014 ONSC 5135, at para. 5, Phillips J. explained that the objective of section 653.1 was to minimise the effect a mistrial can have on court resources such that “[i]f the reason for the mistrial is independent of the ruling, the ruling should not go down with the trial. Re-litigation of issues already fairly decided is to be avoided.”
[26] In R. v. Davis, 2012 ONSC 5526, at para. 15, Baltman J. surveyed use of the phrase “interests of justice” in other sections of the Criminal Code and summarised the principles that emerge as follows:
• the phrase signals the existence of a judicial discretion to be exercised on a case-by-case basis;
• it encompasses broad based societal concerns and the more specific interests of the particular accused;
• it takes into consideration both the interests of the accused as well as the state; and
• it also encompasses the integrity of the criminal process, including the bringing of finality to litigation and avoiding the time and expense inherent in the re-litigation of issues.
[27] In the very recent case of R. v. Victoria, 2018 ONCA 69, which is the only appellate authority that considers section 653.1, the Court of Appeal stated, at para. 55:
[55] In the absence of statutory guidance on the meaning to be assigned to the “interests of justice” in s. 653.1 or of an exhaustive or illustrative list of relevant considerations, relevant factors might include, but not be limited to:
i. whether any new evidence will be tendered on the proposed rehearing;
ii. whether any new arguments will be advanced on the proposed rehearing and the apparent merit, if any, of those arguments;
iii. the interests of the parties, including any articulable prejudice fostered or perpetuated by the inability to relitigate any issue previously decided;
iv. the public interest in the timely and efficient conduct of criminal trial proceedings and avoidance of unnecessary and duplicative proceedings;
v. any changes in the legal principles governing the ruling on which relitigation is proposed;
vi. the nature of the evidentiary record on the basis of which the prior ruling was made, as for example, viva voce testimony; agreed statement of facts; transcripts of testimony given elsewhere and any differences in the record proposed for relitigation;
vii. the nature of the issue(s) involved in the prior ruling and proposed relitigation;
viii. the possibility of inconsistent rulings; and
ix. any other circumstances relating to the balance of the subsequent trial proceedings that may have an impact on the continued applicability of the prior rulings.
See, for example, R. v. N.J.S., 2013 BCSC 2512, at para. 19.
[28] The Crown argues that the discretion conferred on this court by section 653.1 should not be deployed to correct the effect of the factual error made by Phillips J. That is a function reserved to an appeal court. In all of the cases where a court has used section 653.1 to set aside an earlier ruling, the earlier ruling was tainted by the mistrial. By contrast, the decision of Phillips J. on the section 11(b) application itself should be seen as untainted by his subsequent finding of apprehension of bias in relation to how he dealt with the aftermath of that decision.
[29] In Davis, a mistrial was declared after the original trial judge became aware, part way through a trial, of a conflict of interest on his part. In considering an application by the Crown to preserve rulings made by the original trial judge prior to his recusal, Baltman J. concluded that comments made by the original trial judge could be interpreted as meaning that he himself related the apprehension of bias in part to his previous rulings. She said of this (at para. 30): “If the judge who is recusing for bias seems himself to be of the view that his pre-trial rulings may appear tainted, that in my view ends the matter. It would not be in the ‘interests of justice’ for those rulings to stand.”
[30] In Victoria, a motion had been brought before the original trial judge seeking leave to cross-examine the deponent of an information to obtain (ITO) which had been used to obtain certain search warrants. The judge had dismissed the application orally but said he would give written reasons if requested. When proceedings resumed, the judge gave lengthy oral reasons in which he dismissed a defence motion to exclude evidence of the results of searches conducted under the warrants. Unfortunately, that motion had not yet be argued: the only motion that had been argued up to that point was the motion for leave to cross-examine the deponent of the ITO.
[31] At the opening of trial, the original judge was asked to declare a mistrial on the basis that the dismissal of the accused’s motion to exclude evidence, brought under sections 8 and 24(2) of the Charter, without having heard argument on either issue, gave rise to a reasonable apprehension of bias. A mistrial was declared.
[32] The new trial judge ruled that, applying s. 653.1 of the Criminal Code, he was bound by the first trial judge’s ruling refusing leave to cross-examine the ITO deponent. However he then heard the parties’ submissions on the motion to exclude evidence of the results of the searches. That motion was dismissed.
[33] On appeal, the accused argued that the new trial judge had erred in deciding that it was not in the interests of justice to permit relitigation of the leave to cross-examine issue. He had not had the benefit of reviewing a transcript of the prior proceedings to assess the arguments advanced. Nor was there a formal ruling that reflected consideration of those arguments. The prior proceedings had terminated because they were procedurally unfair. Procedural fairness includes a trial judge’s obligation to provide reasons for evidentiary rulings. The accused argued that such a failure of procedural fairness warranted departure from the presumptive application of prior rulings in later proceedings and required a new trial.
[34] The Court of Appeal rejected these arguments. It noted, at para. 59, that:
[N]either the evidentiary predicate upon which the proposed relitigation was to be grounded, nor the argument to be advanced differed from that rejected by the judge at the previous trial. This is relitigation, pure and simple in the hope of achieving a different result, the very consequence Parliament sought to avoid when it enacted s. 653.1.
[35] The Court of Appeal continued, at para. 60:
[T]he referential incorporation of the prior ruling accords proper weight to the public interest in the effective and efficient use of limited court resources. To permit relitigation of the same issue, on the same grounds, on the same evidence in the hope of achieving a different result is to invest in forum shopping and turn the principles upon which s. 653.1 is founded on their head.
[36] Finally, the Court of Appeal held that the second trial judge’s refusal to permit relitigation did not cause the appellant any prejudice as it remained open to him to argue on appeal that the reasons given by the first trial judge were insufficient, as well as to submit that the search was constitutionally flawed and that the evidence obtained should be excluded.
[37] The Court of Appeal went on to reject the ground of appeal that the first trial judge had erred in failing to grant leave to cross-examine.
[38] In Victoria, the first trial judge had recused himself because of his handling of the motion to exclude evidence of the results of the searches and not his ruling on the motion for leave to cross-examine. To similar effect, in the present case Phillips J. did not relate his finding of apprehension of bias to the ruling he had already made on Mr. Salt’s section 11(b) application.
[39] Crown counsel acknowledges that the practical effect of her position in the present case is that if Mr. Salt’s trial proceeds and he is convicted, he would – after the trial – have to appeal the section 11(b) decision of Phillips J. to the Court of Appeal to obtain relief. That would impose a greater burden on the parties and the court’s resources than relitigating Mr. Salt’s section 11(b) application at this juncture. But this would be the lesser of two evils: allowing Mr. Salt to relitigate what for him was an unfavourable result would, according to the Crown, not be in the interests of justice (or as the Court of Appeal put it in Victoria, it would amount to “forum shopping and turn the principles upon which s. 653.1 is founded on their head”).
[40] Mr. Friedman argues that the “interests of justice” provide the court with an opportunity to take a pragmatic approach. It does not promote a timely and efficient criminal justice system to acknowledge the existence of an error but to then ignore that error for the purposes of determining whether the application in which the error was made should be reheard. Furthermore, although Mr. Salt did not testify before Phillips J., he will testify at his next section 11(b) hearing, regardless of whether that hearing is confined to the latest period of delay or whether the entirety of the delay since he was charged is under consideration.
[41] The defence denies that its position is opportunistic – taking advantage of the judge’s slip to take another kick at the can. Rather, the defence points to the artificiality of engaging in an analysis of the pending section 11(b) application without regard to the circumstances – and effect – of all of the delay that has occurred.
Analysis
[42] The starting point is the presumption, legislated by section 653.1, in favour of preserving the ruling made by Phillips J.
[43] The party wishing to set aside the earlier ruling – in this case Mr. Salt – bears the onus of satisfying the court, on a balance of probabilities, that it would not be in the interests of justice to permit the earlier ruling to stand.
[44] One of the factors listed in Victoria has particular resonance to the case at hand: the public interest in the timely and efficient conduct of criminal trial proceedings and avoidance of unnecessary and duplicative proceedings.
[45] It seems to me that a right-thinking member of the public would regard with puzzlement a scenario where the fact of a mistake having been made has been placed on the record by the judge who made it, but the opportunity provided by section 653.1 to rectify that mistake – by having the application reheard without first going through an entire trial and then waiting for an appeal to be heard and determined – has not been taken.
[46] There may well be an element of opportunism here on Mr. Salt’s part. He chose not to provide evidence of the prejudice caused to him by delay but, rather, left it to Phillips J. to infer prejudice from the other evidence in the record, including the effect of the restrictions contained in Mr. Salt’s bail conditions. But regardless of that, Mr. Salt is going to have an opportunity to bring a further section 11(b) application and, hence, to testify now that there has been further delay. So most of the concern about the further cost, delay and inconvenience of rehearing motions is not applicable in this case.
[47] Furthermore, concerns about giving a party in Mr. Salt’s position an open opportunity to relitigate an application which previously yielded a disappointing result for him can be mitigated by confining that opportunity to the issue of prejudice arising from the delay in prosecuting the charges up to the time of the first trial. Philips J. made findings about the allocation of responsibility for the delay, concluding that there had been net delay of 37.5 months for the purposes of the considerations articulated in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. Because it was unaffected by the factual error that was made, I can see no rational basis for revisiting that part of his decision.
[48] This is the approach that was considered in R. v. Hayhow, 2015 ONSC 245. There, Broad J. held that there were findings within a previous judge’s section 11(b) ruling “which need not necessarily be revisited following the mistrial, in particular, his evaluation of the reasons for the delay and the ascribing of responsibility for such delay up to the date set for the original trial” (para. 48). He continued, at para. 54, that on a subsequent section 11(b) application by the accused, there was no fresh evidence of actual prejudice to the accused arising from the delay and no new arguments advanced with respect to the existence and impact of the prejudice suffered by the accused. As a result, Broad J. was not persuaded that it would not be in the interests of justice to apply the previous judge’s findings with respect to prejudice suffered by the accused resulting from delay to the time of the first trial.
[49] What is significant is that Broad J. was open to considering fresh evidence of actual prejudice and new arguments with respect to the existence and impact of the prejudice, if such evidence had been adduced and if such arguments had been made. While in Victoria, one of the factors which led the Court of Appeal to reject the proposed litigation was that the evidence and arguments would be the same as had been considered before, had there been different evidence and new arguments, it would seem that the appellant may have fared better.
[50] In the present case, Mr. Friedman says that there will be new evidence and new arguments and has outlined what he anticipates that evidence will include and what those arguments will be. In particular he anticipates that Mr. Salt will speak about the true impact of his bail conditions (the same conditions that were misapprehended by Phillips J.) both currently and before the last section 11(b) application.
[51] Moreover, there is something inherently artificial about a process that would allow Mr. Salt to testify about the prejudicial effect of conditions of his interim release as they pertain to the period from 22 January to 16 November 2018, yet say nothing about the effect of those conditions prior to that, even though it is known that those conditions applied well before 22 January 2018.
[52] In my view, the interests of justice favour giving Mr. Salt the opportunity to persuade the court, based on such evidence as may now be adduced, and such arguments as may be made, to evaluate afresh the prejudicial effect of the delay in prosecuting the charges up to the time of the original trial date – held by Phillips J. to be a net delay of 37.5 months – as well as beyond. The extent to which the court considers it appropriate to revisit and re-evaluate the findings contained in Phillips J.’s ruling on the issue of prejudice will, of course, be a matter for the court at that time. But given the circumstances, I am not prepared to prejudge that issue by making the blanket ruling presently sought by the Crown that all aspects of Phillips J.’s decision should remain binding on the parties.
[53] I should record that when this matter was spoken to for the purpose of scheduling both the hearing of this application and Mr. Salt’s further section 11(b) application, Ratushny J. directed that the same judge should hear both applications. That too should allay some of the efficiency concerns that might otherwise pertain.
Graeme Mew J.
Released: 7 March 2018
OTTAWA COURT FILE NO.: 14-5224
DATE: 20180307
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
– and –
RYAN SALT
Respondent
REASONS FOR JUDGMENT:
application by crown for a ruling pursuant to s. 653.1 of the criminal code
MEW J.
Released: 7 March 2018