COURT FILE NO.: CR-20-10000327-0000
DATE: 20210325
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Respondent
- and -
William Datta
Applicant
Ms. E. Pancer, for the Respondent Crown
Mr. H. Aly, for the Applicant
HEARD: February 26, 2021
M. FORESTELL J.
RULING ON APPLICATION TO STAY PROCEEDINGS PURSUANT TO SECTIONS 7 AND 24(1) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS
1. Nature of the Application
[1] The applicant, William Datta, was found guilty of several firearms and drug offences on October 5, 2020 after a trial by judge and jury. The matter was adjourned for sentencing. The Applicant then brought this application to stay proceedings.
[2] The Applicant applies for a stay of the charges against him on the basis that his rights under s. 7 of Canadian Charter of Rights and Freedoms (the “Charter”), have been violated. The Applicant alleges that one of the police witnesses violated the order excluding witnesses and lied about so doing. He submits that the conduct of the police was so egregious as to amount to an abuse of process and necessitates a stay of proceedings to preserve the integrity of the judicial process.
[3] The Respondent Crown takes the position that:
There is no jurisdiction for the Court to entertain this application after the verdicts of the jury;
Alternatively, if there is jurisdiction, the evidence does not support a finding that the officer violated the order or lied; and,
In the further alternative, a stay of proceedings is not warranted.
2. The Evidence
Overview of the Evidence
[4] In the summer of 2018, the police began a criminal investigation into firearms trafficking in the Toronto area. An undercover officer was introduced to a man named Alan Cunningham. The undercover officer purchased firearms from Alan Cunningham on two occasions and ammunition on a separate occasion. On October 17, 2018, the undercover officer arranged another meeting with Alan Cunningham to purchase two firearms for $7,500.00. The undercover officer and Alan Cunningham drove together to Woodside Square Plaza. While driving to the plaza, Mr. Cunningham made several telephone calls to William Datta. Mr. Cunningham referred, in one call, to meeting at the same place as the day before. At the plaza, Alan Cunningham left the car and approached a silver Acura registered to Urmila Datta, William Datta’s mother. Soon after, Mr. Cunningham took the money from the undercover officer and returned to the Acura. He exited the Acura and returned to the undercover officer with a bag containing four firearms: two Smith & Wesson handguns, a Steyr handgun and a revolver. The officer chose two of the guns. Mr. Cunningham returned to the Acura with the bag containing the remaining two guns. Both cars then left the plaza.
[5] The Acura was followed by police. An officer observed the Acura to park in the visitors’ parking lot of a nearby building at 1180 Sandhurst Circle. The lights of the Acura were turned off and the car remained immobile for a short time before leaving the parking area. The officer making the observations testified that no one entered or exited the vehicle while it was parked in this area. The car was followed for several hours after it left the parking area. The same car was followed on three other days. On each of those days William Datta was the driver.
[6] On November 1, 2018, search warrants were executed on the Acura and the residence of Mr. Datta. Mr. Datta was arrested after he entered the silver Acura. When officers searched the Acura, they located 121.95 grams of cocaine and 122.25 grams of fentanyl in the centre console. They also located a bag containing 8 rounds of ammunition. Officers also located 24.52 grams of cocaine and 3.45 grams of fentanyl in the front pouch of the sweatshirt Mr. Datta was wearing.
[7] Mr. Datta was in possession of two cellular phones when he was arrested. The phones were subsequently downloaded. The downloaded contents of the phones disclosed communications between William Datta and Alan Cunningham on and before October 17, 2019. The phone records also provided evidence of the route the Acura travelled on October 17, 2018.
[8] Mr. Datta testified and denied selling the guns to the undercover officer. He testified that he loaned his car to Alan Cunningham’s cousin at 1180 Sandhurst Circle. The cousin was gone with the car for a short time and then returned to the building and Mr. Datta took back his car. He then drove the car for the rest of the evening.
Impugned Evidence of Officer Rosete
[9] During the Applicant’s trial, counsel for the Applicant cross-examined several police officers who followed and observed the Acura. They were asked about why they had failed to have a marked police vehicle stop the Acura to identify the driver. Various answers were given.
[10] Officer Rosete testified after several other officers had been questioned about the failure to have the Acura stopped by a marked vehicle.
[11] The position of the Applicant is that Officer Rosete volunteered an explanation for not stopping the Acura before he was questioned about this issue. The Applicant argues that the manner in which Officer Rosete answered the questions should satisfy me that Officer Rosete discussed the evidence with the officers who testified before him.
[12] This allegation was put to Officer Rosete when he was on the witness stand. He denied discussing the evidence with the other officers.
[13] The relevant portions of the testimony of Officer Rosete are set out below.
In Examination-in-chief:
Q. So, on October the 17th, we have heard evidence of a gun transaction that took place between the undercover officer, Alan Cunningham, and a person the Crown is alleging is Mr. Datta. Why was Mr. Datta not then arrested in and around that date?
A: Sorry, the date of the initial…
Q. The initial gun trafficking, where the Acura was seen at the Sandhurst Circle plaza?
A. So, I mean, if I can take — take you to it in a way that our minds work as investigators, the first thing we want to do is to identify the persons that are involved in, I guess, obviously in this instance, trafficking of firearms. So that was our first objective, was to continue our physical surveillance in the hopes of determining exactly who was operating the motor vehicle at the time of the — of that gun deal on the 17th, I believe. There was discussion—for my own mind set you know, there other — there’s obviously options that are available to us to identify this — this person. One thing that you do have to weigh in mind, very important in this actual investigation, was the fact that we also had an undercover officer that was deployed, and as you can imagine, as investigators, as decision makers in a project like this, one of the main concerns is obviously the protection and the safety of our undercover officer. So now that’s — in that instance of pulling over somebody to identify them, which again is sometimes a step that we do utilize to identify people that we don’t know, having — if we did it that night, that would really put our undercover officer in a — in a very, very dangerous position. You gotta imagine people that are involved in this type of lifestyle of criminality obviously try to avoid detection from the police and being engaged in something as — as dangerous as a gun deal, if you were to be pulled over a couple of minutes later and then let go, I’m pretty sure that his suspicion would then turn to those involved in that gun deal itself. So that was my mind set anyway, as far as not pulling him over right after the gun deal was — was completed.
Q. And in your experience, in the 23 years of being a police officer, have you identified people through other means besides pulling them over that night?
A. Oh yes, definitely.
Q. And what was the — what was the plan with regards to identifying the driver of the Acura?
A. Physical surveillance, at that point. Again, we utilize, you know, video cameras, basically physical surveillance at this point, and then to identify anybody else that he meets, identify any addresses that our following him would — you know, would reveal. Any persons that were associated to him that could be linked through our surveillance, any vehicles, any addresses, and then we go in and do our checks through the computers and whatnot, and that’s part of the — part of how we do identify people in those instances.
Q. And was it possible that the undercover officer would have purchased more firearms if the project hadn’t come to an abrupt halt on November the 1st?
A. Oh yeah, very possible.
And in cross-examination:
Q. Well, on October 17th, by the end of the day, you hadn’t identified the driver of the silver Acura?
A. That’s right, we hadn’t. We hadn’t.
Q. In fact, you had no idea who it was, correct?
A. We had no idea.
Q. And you definitely knew, as an experienced police officer, at that point you did not have the evidence to ever prove who brought these firearms to Mr. Cunningham, correct?
A. That’s right.
Q. All right. And you ultimately made the decision to let that car leave on October the 17th?
A. Well, like I mentioned in-chief though, I mean a lot of things obviously you can imagine go through somebody’s mind when engaged in a, you know, firearms transaction with an agent present, with a — with an undercover officer, and to take you to where my mind set is, that is the most important thing at the time, is to ensure that the undercover officer is safe, and the agent is safe.
Q. I completely understand that. But the undercover officer is with Mr. Cunningham and they drive back to where they got picked up from, and then the undercover is out of the car, correct?
A. Correct.
Q. So once the undercover is out of the car, he’s safe, correct?
A. Okay, yes.
Q. All right. So, the focus at that point, the focus in this case quickly turns to not really spoiling the investigation, correct?
A. Umm, the focus — I understand what you’re saying. Yes, there is that — you know, our mind did say okay, did — is this exactly the person that’s bringing them across the border? Is this, you know, the back end so to speak? For sure, that’s definitely part of my mind set. But my mind set really is, the first and foremost is the — the safety of the — of the officer, as well as the safety of the of the agent. And, umm, you know, to have a uniform car just randomly stop somebody that we just, you know, like is involved in a gun deal, that also puts the — the uniform officer at a very, ah — well, at a position of disadvantage, because we know that there is somebody dealing guns, and then a uniform officer would have — having just pulled them over for basically nothing if — I mean, he wouldn’t just pull him over for, you know, dealing guns obviously, right. So that was —yes, it is a tool that we use. In this instance, using a — a uniform stop right after a gun deal is something that, ah, like I — I don’t question my decision at that time, no.
Q. Well, I never asked you about a uniform stop. You — you’ve brought that up. So, you seem to know that that’s an area I’m going to question you about?
A. No, no, it’s just that’s something that we do a –- a lot of the times. That’s something that we do a lot of the times as well, right. There’s — there’s various — there’s various techniques that are used.
Q. How often do you do it, sir?
A. How often have I done it?
Q. You said, “a lot”. What does “a lot” mean?
A. So, I’ve been doing this work, this type of work for the majority of my career, I – I would say dozens of times over the majority of my career, using a uniform stop.
Q. Someone must have told you that I questioned other officers about conducting uniform stops?
A. No, no. No, no, no, no. That’s, ah — like I said, I’ve been doing this for 23 years. I take a lot of pride in what I do. I don’t need to discuss other officers’ evidence. Umm, I feel this is a very strong case, Mr. Aly. I don’t — I actually — I disagree with that wholeheartedly. I don’t need to discuss evidence with other officers.
Q. So why did you start talking about having a uniform vehicle stop the Acura? Why ...
A. Well, ...
Q. ... did you bring that up?
A. ... like I said in-chief, it’s something that we turn our minds to. How do we identify this driver? And there’s certain techniques that we utilize. Using a stop, using a uniform stop, is also one of them, it’s one of them that we use as well.
Q. That’s not true, sir. You’ve probably seen a uniform stop once or twice in 20 years of experience?
A. Mr. Aly, I — I’m — I’m telling you we’ve used it — I’ve even dressed up as a uniform officer while in a plainclothes capacity and borrowed a uniform car to identify the — the driver.
Q. So, it’s a bit ridiculous for me to suggest that in 20 years you have only done this once or twice?
A. No, no. Like I said, dozens of times have we used a uniform stop to identify a driver, dozens of times. I actually — I’m — I’m actually offended that you would — that you would suggest that I — that’s not the — I’ve been here — I’ve been on the job for 23 years. I’ve done this — I’ve testified many times. I don’t need to — to discuss evidence with — with fellow officers, Mr. Aly.
Q. I think it’s quite obvious, sir, that you bringing up the fact that your reasons for not pulling this vehicle over, or not having — or having a marked police vehicle pull this car over, it’s clear evidence that you have discussed this case with other officers?
A. Well, I beg to differ. Actually, it is your line of questioning, you’re — you’re offering me options, and I can tell that one of your — when you’re talking about, why didn’t you stop this car, why didn’t you take him out, is leading towards that type of questioning. That’s ...
Q. We’ll ...
A. ... the only reason why.
Q. We’ll review the transcript and see if I even did that. But I think you brought it up when my friend was asking you questions. The point is that’s what’s happened in this case. You believe Mr. Datta is guilty, and you and your team have fabricated facts and excluded things to make it seem that way?
3. The Issues
[14] The issues that I must decide in this application are:
Is there jurisdiction to entertain this application post-verdict?
If there is jurisdiction, can I find as a fact that Officer Rosete breached the order excluding witnesses and lied? and,
If I find that Officer Rosete breached the order and lied, does the conduct amount to an abuse of process justifying a stay of proceedings?
[15] For the reasons set out below I have concluded that I lack jurisdiction to entertain the application post-verdict. Even if I am wrong in this conclusion, I would not find as a fact that Officer Rosete breached the order excluding witnesses or lied. In light of these findings I have not gone on to consider whether a breach of the order and lying about such conduct would amount to an abuse of process justifying a stay of proceedings.
4. Analysis
Jurisdiction
[16] The Supreme Court of Canada has repeatedly recognized that there are rare occasions — the ‘clearest of cases’ — when a stay of proceedings will be warranted as a result of an abuse of process. The Supreme Court has said that such cases generally fall into two categories:
Where the state conduct compromises trial fairness (the ‘main’ category); and
Where the state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the “residual” category).[^1]
[17] Regardless of the category into which the conduct falls, the test for determining whether a stay of proceedings is warranted involves assessing the following criteria:
(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 the first two criteria are not determinative, the court must balance the interests in favour of granting a stay (including denouncing misconduct and preserving the integrity of the justice system) against the societal interest in having a final decision on the merits.[^2]
[18] The Applicant in this case takes the position that the conduct complained of falls into the residual category. He argues that the conduct did not render the trial unfair, but the conduct of the officer risks undermining the integrity of the judicial process. He argues that, as with entrapment, the question of whether the conduct has been proved and the question of whether it would amount to an abuse of process may be decided post-verdict by the trial judge.
[19] The Crown takes the position that there is no jurisdiction to entertain this application after the verdict of the jury.
[20] The Crown relies on the judgments of the Court of Appeal for Ontario in R. v. Gostick [^3]and R. v. Henderson[^4]. In Gostick, the trial judge granted a stay of proceedings after the jury’s verdict of guilty. The trial judge found that the poor conditions in the courthouse amounted to an abuse of process and a denial of the right of the accused to a trial by jury. The Court of Appeal allowed the Crown appeal. The Court held that there was no jurisdiction to grant a stay in the circumstances of that case. The Respondent had argued that the procedure in R. v. Mack[^5], applicable to entrapment, should also be available in the circumstances in Gostick. The Court rejected that position, saying:
In my opinion, the logic underlying Mack is not applicable to cases involving an abuse of process of the nature alleged here. There is no reason for an issue of this nature to await the jury's determination of the accused's guilt or innocence. If it is alleged that conditions in the courtroom are so oppressive as to prevent the jury from properly performing its function and thereby denying the respondent a fair trial, the matter should be raised and dealt with by the judge during the course of the trial. If such circumstances exist, the jury ought not to be charged and called on to assess the respondent's guilt or innocence. If, however, the case goes to the jury and the allegation is not made until after the verdict has been recorded and the jury discharged, the matter then becomes one to be dealt with by way of appeal and not by the trial judge.[^6]
[21] In Henderson, the trial judge granted a post-verdict mistrial for Crown non-disclosure. The non-disclosure was known to counsel before trial, but no remedy was sought until sentencing. The Court of Appeal again held that it was an error to entertain the application post-verdict, holding at paras. 42-46:
42 After the jury had found the respondent guilty on all counts, after the verdict had been registered and after the jury had been discharged, it was an error for the trial judge to conclude that he had the jurisdiction to entertain a motion for a stay as a remedy for abuse of process or a breach of s. 7 of the Charter, based on the Crown's failure to preserve and disclose the respondent's employment records.
It is not clear why the issue was not made the subject of a motion by the defence either before or during the trial. …
However, what is clear is that such motions must be brought at a point when the trial judge is in a position to deal with the matter with the jury, and if a stay is not appropriate, to give a remedy during the trial. Counsel cannot save such motions to be brought only if the accused is convicted. Once the jury has delivered its verdict, matters that involve the conduct of the trial and that could have affected the jury's verdict can only be raised on appeal.[^7]
[22] In my view, there is a distinction which must be drawn between the procedure to be followed in cases impacting on trial fairness — or ‘main category’ cases and cases that fall only in the ‘residual’ category. Post-verdict applications may be entertained in cases that fall only in the residual category. Entrapment is one type of case that falls in the residual category. An application for a stay for entrapment must be brought post-verdict. Entrapment is not the only type of case within the residual category and it is not the only type of state conduct that may be properly dealt with post-verdict.
[23] In R. v. Bellusci,[^8] the Supreme Court of Canada reinstated the stay of proceedings entered by the trial judge after the accused was found guilty but before the conviction was entered. The accused had been found guilty in a judge alone trial of intimidating a justice participant. The trial judge entered a stay of proceedings under s. 24(1) after finding that the accused had been grievously assaulted while chained, shackled, handcuffed and defenceless.
[24] I recognize that Bellusci was a judge alone trial. However, the principles remain the same. The stay application was not based on unfairness to the trial process, but solely on the residual category. I am of the view that where the abuse alleged falls within the main category in that it potentially impacts on the fairness of the trial process, it should be brought before the jury verdict. However, as with entrapment, if the alleged abuse does not engage trial fairness concerns the application may be brought post-verdict.
[25] I do not read Gostick or Henderson as standing for the proposition that entrapment is the only type of abuse of process application that can be addressed post-verdict.
[26] In Gostick and in Henderson, the state conduct complained of was conduct that threatened trial fairness. Effectively, the accused in those cases were complaining of conduct that fell properly in the ‘main’ category of abuse of process but sought to characterize it as falling in the ‘residual’ category.
[27] I reach the same conclusion with respect to the conduct in this case. The Applicant alleges the breach of an order excluding witnesses and effectively alleges collusion between police witnesses. He also alleges that Officer Rosete lied when he denied breaching the order and colluding. If such conduct occurred, it would necessarily have prejudiced Mr. Datta’s right to a fair trial and would necessarily fall within the main category of conduct. The application ought to have been brought prior to the verdict.
[28] I therefore conclude that I lack jurisdiction to entertain the application after the verdict of the jury.
Factual Findings
[29] Even if I am mistaken on the jurisdictional issue, I would dismiss the application. I do not find as a fact that Officer Rosete breached the order excluding witnesses and discussed the evidence with the police witnesses who testified before him. I have carefully considered the testimony of Officer Rosete and the manner in which it emerged at trial. Officer Rosete testified about the decisions that were made in the course of the investigation and the reasons for those decisions. He elaborated on the options available to investigators. The manner in which he addressed the option of having the driver of the Acura stopped by a uniformed officer does not support the conclusion that he discussed evidence with other officers.
5. Conclusion
[30] The application for a stay of proceedings is dismissed
M. Forestell J.
Released: March 25, 2021
COURT FILE NO.: CR-20-10000327-0000
DATE: 20210325
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Respondent
- and -
William Datta
Applicant
RULING ON APPLICATION TO STAY PROCEEDINGS PURSUANT TO SECTIONS 7 AND 24(1) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS
M. Forestell J.
Released: March 25, 2021
[^1]: R. v. Babos, 2014 SCC 16 at para. 3; R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411 at para. 68
[^2]: Babos, at para. 22
[^3]: R. v. Gostick (1991), 62 CCC (3d) (ON CA)
[^4]: R. v. Henderson (2004), 1999 CanLII 2358 (ON CA), 44 O.R. (3d) 628 (C.A.)
[^5]: 2014 SCC 58
[^6]: Gostick, supra at p. 284
[^7]: Henderson supra, at paras. 42-46
[^8]: 2012 SCC 44