Court File No. 13455/20-MO
SUPERIOR COURT OF JUSTICE
DEEPAN BUDLAKOTI, MICHAEL WIWCZARUK, JEAN FRANCOIS DARIUS, JOSH CORTEZ, ABDIRAHMAN ALI FARAH, SAYED ABDUL WAHAB DADSHANI, MOHAMED H. MOHAMED, MISHAAL ALSHAMMIRY AND ALI ADOUM-SALEH
v.
HER MAJESTY THE QUEEN
R U L I N G O N A P P L I C A T I O N
S T A Y O F P R O C E E D I N G S
BEFORE THE HONOURABLE JUSTICE K. B. PHILLIPS
on September 21, 2020, at Ottawa, Ontario
APPEARANCES:
A. Bolieiro & H. Evans
Counsel for the Attorney General of Ontario
M. Cunningham & M. Humphreys
Counsel for the Provincial Crown
K. Reitsma
Counsel for the Federal Crown
D. Budlakoti
In Person
M. Wiwczaruk
In Person
J. F. Darius
In Person
J. Cortez
In Person
A. Ali Farah
In Person
S. Dadshani
In Person
M. Mohamed
In Person
M. AlShammiry
In Person
A. Adoum-Salah
In Person
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
W I T N E S S E S
WITNESSES
Examination in-Chief
Cross- Examination
Re- Examination
N/A
E X H I B I T S
EXHIBIT NUMBER
ENTERED ON PAGE
N/A
Legend
[sic] – Indicates preceding word has been reproduced verbatim and is not a transcription error.
(ph) – Indicates preceding word has been spelled phonetically.
RULING 1
Transcript Ordered: September 22, 2020
Transcript Completed: September 23, 2020
Judicially Approved: September 30, 2020
Ordering Party Notified: October 7, 2020
MONDAY, SEPTEMBER 21, 2020
R U L I N G
PHILLIPS J. (Orally):
The applicants are charged with a variety of criminal offences on a variety of indictments. What they all have in common is that they are presently in pretrial detention at the Ottawa Regional Detention Centre, colloquially known around here as Innes Road.
The application advances numerous complaints about the nature of the treatment inmates are receiving at the hands of those running the jail. More particularly, it is argued that recent COVID-19 restrictions within the facility unfairly prevent the applicants from receiving visitors, from adequately maintaining their personal grooming and dental care, from adhering to their religious observances and practices, and from being able to attend rehabilitative programming such as Alcoholics Anonymous. As well, the applicants assert that there has been an unreasonable number of lockdowns and other restrictions on their movements within the jail.
In essence, it is said that the official COVID-19 response at Innes Road has been tyrannical and impetuous.
The applicants argue for various forms of release, including stays of their proceedings. As well, or in the alternative, the applicants propose that they should receive an award of damages.
This is an appropriate situation for application of Rule 34.02 of the Criminal Proceedings Rules for the Superior Court of Justice. All the relevant facts are known. The applicants’ position is comprehensibly presented in their written materials. Indeed, I advised the applicants on our last appearance that I would be performing a Rule 34.02 analysis and invited them to submit further materials should they wish to make sure they have put their best foot forward. Supplemental materials have been received as recently as last Friday. I understand the applicants’ position fully, and I have read thoroughly through their impressive and voluminous written submissions.
Rule 34.02 provides that:
The presiding judge may conduct a preliminary assessment of the merits of any pretrial or other application on the basis of the materials filed, and, if satisfied that there is no reasonable prospect that the application could succeed, may dismiss the application without further hearing or inquiry.
As is evident from the language of the rule, the threshold for summary dismissal of an application is a high one. It requires that there be “no reasonable prospect” that the application could succeed. In other words, summary dismissal could only be appropriate where it is plain and obvious that an application is without merit.
Rule 34.02 is not often applied. The usual practice is for the Court to remain passive, to let any application go the distance, to be argued and determined only after full in-court proceedings. This general approach has recently attracted some criticism by the Supreme Court of Canada linked to concern regarding efficient use of judicial resources. This was highlighted in R. v. Jordan and reiterated in R. v. Cody. In Cody, the Court addressed the issue directly at paragraph 38:
In addition, trial judges should use their case management powers to minimize delay. For example, before permitting an application to proceed, a trial judge should consider whether it has a reasonable prospect of success. This may entail asking defence counsel to summarize the evidence it anticipates eliciting in the voir dire and, where that summary reveals no basis upon which the application could succeed, dismissing the application summarily
Nordheimer J. (as he then was) set out the practical application of the Rule 34.02 assessment in the post-Jordan era in R. v. Papasotiriou-Lanteigne, 2007 ONSC 5337. A fair paraphrasing of his decision explains that the procedure contemplates a relatively informal and expedient process. Since it is a threshold question, it cannot be taken to envision affidavits being filed and cross-examinations being conducted. To hold otherwise would be to defeat the fundamental point of the exercise. Rather, what is envisaged is that counsel will advise the Court of their “best case”, assuming that there is a reasonable prospect that they could obtain all of the facts that they hoped to through an evidentiary hearing, and the Court will then determine if that best case could reasonably achieve the result that party seeks.
I agree with the applicants that even during a pandemic the protection of human rights should be of fundamental importance in the administration of criminal justice, especially in pretrial detention. No part of pretrial detention should be punitive or any more restrictive of ordinary liberty than necessary. Nonetheless, even if I take the applicants’ arguments in aggregate, and assume that all of their asserted facts can be proved, I arrived at the view that the application could not possibly succeed. This is nowhere near the clearest of cases warranting a stay of proceedings.
In my view, it cannot be disputed that all of the cited decisions made by the jail officials which interfere with the applicants’ interests are both required by the COVID-19 pandemic and are reasonable in the circumstances. They are clearly and rationally connected to the objective of reducing social interaction and assembly. Everyone can understand that efforts needed to be undertaken to restrict the comings and goings into the jail, as well as the instances of group activity within it. Of course, those necessary efforts would have a deleterious effect on those affected. Those negative effects, however, are reasonable and proportional because they pale in comparison to the threat posed by COVID-19.
The extra layer of liberty restrictions complained of are in the same vein as what is being experienced by the community at large. All of us have endured significant curtailment of our day-to-day activities. This includes haircuts and other personal grooming services, just as it includes things like Alcoholics Anonymous, gatherings and religious congregating. Dental and other healthcare services have been reduced for everyone. Many families have hardly been seeing each other. Some old folks in retirement homes have gone without visitors for months. People have even died in hospital without any family allowed to visit in their final moments.
A stay of proceedings is the most drastic remedy a criminal court can order. It permanently halts the prosecution of an accused, frustrating the truth-seeking function of a trial and depriving the public of the opportunity to see justice done on the merits. The Supreme Court of Canada set out the test for a stay of proceedings in R. v. Babos, 2014 SCC 16 at paras. 30-31.
(a) 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”[....];
(b) there must be no alternative remedy capable of redressing the prejudice; and
(c) where there is still uncertainty over whether a stay is warranted after [the two steps above], 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”[....]
The impugned steps taken by staff at Innes Road that form the basis of the alleged Charter breaches here would fall into the so-called “residual” category of conduct, where the state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process. When the residual category is invoked, the question becomes whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system.
There is no reasonable prospect that the applicants will be able to establish that proceeding with their criminal prosecutions in light of the impugned conduct of the jail would do harm to the integrity of the justice system. I repeat my view that the situation at the jail is generally in line with what is going on in the community at large. While I am not without sympathy for the applicants, I see their experience as roughly commensurate with what the broader public has had to suffer through since early in the year. Given that we are all in this together and are all enduring anxiety and hardship, it simply cannot be said that the efforts by the custodial officials to minimize risk of COVID-19 spread would offend societal notions of fair play and decency to the degree necessary to warrant a stay of proceedings.
I find equally that the application as it relates to a claim for Charter damages should be struck as it is plain and obvious that it cannot succeed. I note that it was brought with insufficient notice to the Crown. This brings the application afoul of the Crown Liability and Proceedings Act and results in it being a nullity. More importantly, however, it simply has no merit, for the same reasons discussed above. No court would possibly award damages against the correctional officials for taking what amounts to steps commonly understood to be necessary to keep people healthy and safe during an unpredictable and unprecedented global pandemic.
The application is dismissed. There is no reasonable prospect that the applicants could get what they are after.
Having said all this, I wish to repeat that I am not without sympathy for the applicants. They are doing hard time, to be sure. I should not be understood to be expressing any view in respect of the appropriateness of enhanced credit for any pretrial custody should any of the applicants find himself facing a sentence. In fact, the availability of enhanced credit for pretrial custody was one of the factors that drove my decision that a stay of damages award is not appropriate here.
Also, I leave the subject of each applicant’s Charter right to tried within a reasonable time entirely up to his eventual trial judge, as well as the question of whether state-funded counsel is called for in any case. Those subjects can only be analyzed on a case-by-case basis and shall be determined by each applicant’s trial judge as she or he sees fit.
For those reasons, the application before the Court is dismissed in its entirety. Thank you, all.
MS. CUNNINGHAM: Thank you. Thank you, Your Honour. I have – it’s Meaghan Cunningham here. I just have one point of clarification. Your Honour may recall that Mr. Budlakoti filed an individual application that mirrored the group application. I wonder if your Ruling applied to the individual application filed by Mr. Budlakoti as well as the group application.
THE COURT: It does, indeed. I took them as essentially one in the same. They are not meaningfully different or distinct in any way. Every comment I have made this afternoon applies to both of those applications.
MS. CUNNINGHAM: Thank you very much, Your Honour.
THE COURT: Thank you, all. I am going to close court.
CLERK REGISTRAR: Thank you, Your Honour.
THE COURT: Thank you.
MS. CUNNINGHAM: Thank you, Your Honour.
FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
Evidence Act
I, Cassandra Colbert, certify that this document is a true and accurate transcription of the recording of Budlakoti et al. v. R., in the Superior Court of Justice, held September 21, 2020, at 161 Elgin Street, Ottawa, Ontario taken from Recording No. 0411_CR34_20200921_094246__20_PHILLIKE.dcr, courtroom 34, which has been certified in Form 1 by J. Hunt.
October 7, 2020 Electronic Copy
(Date) Cassandra D. Colbert
*This certification does not apply to the Ruling, which was judicially edited.