Warning
An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue and an order under s. 648 is now in place. These sections of the Criminal Code provide:
486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.
486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
648 (1) After permission to separate is given to members of a jury under subsection 647(1), no information regarding any portion of the trial at which the jury is not present shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.
Offence
(2) Every one who fails to comply with subsection (1) is guilty of an offence punishable on summary conviction.
(3) [Repealed, 2005, c. 32, s. 21]
COURT FILE NO.: 15167-19
DATE: 20210427
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
C.M.
Defendant
Kristen Pollock and Mareike Newhouse, for the Crown
Peter Thorning, for the Defendant
HEARD: February 1, 2, 2021 via Zoom
RULING ON THE STAY APPLICATION
Justice Verner
[1] C.M. has been charged with twenty-four sexual assault related charges in relation to five complainants. He was first arrested on Friday, April 13, 2018 and charged with offences against two complainants at that time. He did not have a bail hearing that day, but was remanded in custody until Monday, April 16, 2018, at which time he was released on the consent of the Crown. While in custody over the weekend, he was assaulted. He submits that:
(1) the request by the Crown to adjourn his bail hearing for three days under s. 516 of the Criminal Code was inappropriate;
(2) the way he was interviewed by police was similarly inappropriate; and,
(3) he was assaulted at the direction of a state actor and the assault was covered up by multiple state actors working together.
He argues that these actions violated his rights under ss. 7, 9, 11(e) and 12 of the Charter and is seeking a stay of proceedings with respect to the allegations involving one of the five complainants – Chelsea G.
[2] The defence called the Applicant and a former correctional officer named Robert Fryza as witnesses, and entered the affidavit of Ms. Moore as an exhibit. The Crown introduced an affidavit by a Detective Willis, who was subsequently cross-examined by the defence. At the request of counsel, submissions on this application were made in writing.
THE APPLICANT’S ARREST
[3] The Applicant and his wife own a restaurant. Two of their female employees gave statements to police on Thursday, April 12, 2018 alleging they had been sexually assaulted by the Applicant in the restaurant. One complainant alleged inappropriate behaviour on three occasions, the most serious of which involved unwanted digital penetration. The other complainant, a minor, alleged unwanted groping over her clothes.
[4] The Applicant was arrested at his restaurant on Friday, April 13, 2018 at approximately 6:10 a.m. and was taken to the police station, where he spoke to duty counsel and then placed in an interview room. He steadfastly exercised his right to silence. He was in the interview room for a total of half an hour.
[5] He was then brought to the courthouse and before a Justice of the Peace. Crown counsel informed the court that the police were seeking a three-day adjournment pursuant to s. 516 of the Criminal Code, so that they could investigate matters further. The Crown also informed the court that the Applicant’s bail hearing would not be reached that day in any event, due to other matters with priority.
[6] Duty Counsel spoke on the Applicant’s behalf. She informed the court that the Applicant had two potential sureties present and that the defence was ready to proceed with a contested bail hearing. Despite these submissions, the Justice of the Peace adhered to the Crown’s request.
THE APPLICANT’S EVIDENCE REGARDING THE ASSAULT
[7] After his appearance in bail court, the Applicant was transported to the Central East Correctional Centre (CECC) with approximately ten other inmates. He was concerned about his safety since one of the complainants – Chelsea G. (an adult) - had connections with correctional officers in that institution. Within one minute of entering the institution the Applicant saw the stepfather of Chelsea G.’s boyfriend – Mr. Robert Fryza.
[8] Officer Fryza did not acknowledge the Applicant in any way. Instead, he approached three correctional officers standing in the entranceway and spoke to them quietly for just over a minute. All three officers then simultaneously looked at the Applicant.
[9] While the Applicant was being processed, an officer recommended that he choose to be held in protective custody – partly due to the nature of his charges and partly due to the publicity with his case (that was the first time the Applicant learned that his case had been in the media). He agreed and signed documents seeking to be held in protective custody.
[10] The Applicant was escorted to a cell. The institution is split into numbered pods, which in turn are divided into lettered units, which in turn have a number of cells. The pods fall under the labels “general population”, “protective custody” and “segregation”. The Applicant was escorted to a cell in unit “F” of pod “1”, which was a protective custody pod.
[11] When he arrived at the unit, all of the cell doors were locked and the lights were out. There was another man sleeping in his assigned cell. The Applicant went to bed himself and got up in the morning on April 14, 2018 as the cell doors were being unlocked. He was immediately greeted by another inmate, whose name remains unknown (hereinafter referred to as Mr. X). Mr. X asked the Applicant his first name and directed him to shower. The Applicant did not suggest there was anything untoward with this exchange, in fact he implied that he appreciated the shower advice.
[12] The defence introduced a silent security video on this application, which showed that after his shower, the Applicant was approached once again by Mr. X. The two men had an exchange and then Mr. X walked away and sat down with another inmate. Within a minute, Mr. X got back up and approached the Applicant yet again. The Applicant was not fearful since Mr. X had been helpful earlier with the shower situation.
[13] Mr. X asked the Applicant for his last name and in the same moment, punched the Applicant in the face. The one swing he took, knocked the Applicant’s glasses to the ground. The Applicant testified that at that moment, Mr. X said, “So you like to hit little girls - Chelsea”. And then heard, “You better push the button. You better push the button”. The video showed the entire encounter was four seconds. The Applicant immediately backed away and within a few seconds, he was over ten feet away at the unit gate. He pressed the button to speak to the officers.
[14] The guards arrived at the gate within 90 seconds. During those 90 seconds, Mr. X, together with three other inmates kneed and punched the Applicant in the face and torso. This portion of the attack was not caught on video, but the video showed a total of four inmates (including Mr. X) follow the Applicant out of view of the camera.
[15] Two guards took the Applicant into a room where they were going to take photographs of the injuries. The Applicant informed them that two officers[^1] employed at the institution were related to one of his accusers. He believed that the officers were surprised by this information and one abruptly left the room. After that officer returned and the conversation resumed, another inmate walked by the interview room and did a “tomahawk” motion multiple times in his direction.
[16] The Applicant was moved to another cell in another unit that day, but consistent with his wishes he stayed in the same protective custody pod, namely pod “1”. Since he was being moved into a new protective custody unit, paperwork had to be filled out to explain why he was in protective custody rather than general population. The form was filled out by an officer (officer Saunders) and it indicated that the Applicant refused to sign it. The Applicant denied refusing to sign any document.
MR. FRYZA’S TESTIMONY
[17] Mr. Fryza confirmed that he was employed as an officer at the CECC at the relevant time. He worked there for a total of three years, but resigned prior to this motion. He testified that he learned about the allegations involving his stepson’s girlfriend and the Applicant, before the Applicant arrived at the institution.
[18] He confirmed the Applicant’s testimony that he saw the Applicant for a brief moment when the Applicant first arrived at CECC on April 13, 2018. According to his testimony, he saw the Applicant as he was leaving the institution after his shift had ended. He returned back into the institution to let a manager know there was a conflict of interest between him and the Applicant and that he would fill out a “conflict of interest” form when he returned for his next shift. He called in sick the following day, which was the day of the assault, and returned to work on Sunday. There was a conflict of interest form dated that Sunday, April 15, 2018. Mr. Fryza testified that he could not remember taking that Saturday off, let alone why he took it off.
[19] Mr. Fryza also denied remembering exactly when he heard about the assault, but believed it was later that week. Defence counsel suggested in cross-examination that it was implausible that Mr. Fryza would forget when he heard about that assault. Mr. Fryza testified that beatings and fights were commonplace in the institutions, and that sex offenders in particular were regularly targeted.
[20] Mr. Fryza did not believe that he pointed out the Applicant to fellow officers near the entrance to the institution as described by the Applicant, but allowed for that possibility. He denied outright that he directed anyone to harm the Applicant.
DETECTIVE CONSTABLE WILLIS’S TESTIMONY
[21] Detective Willis testified that two complainants made initial allegations against the Applicant on Thursday, April 12, 2018. He was informed by one of those complainants – Chelsea G. - that there was another female who had been abused by the Applicant who was too scared to come forward. Chelsea G. did not name the third potential complainant.
[22] After hearing the April 12, 2018 statements, Detective Willis immediately made efforts to secure a search warrant for the restaurant, which he felt needed to be executed at the same time as the Applicant’s arrest for the purposes of ensuring evidence was not destroyed. He was informed that due to administrative backlog, the warrant could not be signed until Friday April 13, 2018. Accordingly, the Applicant was arrested on April 13 just after 6:00 a.m. at his place of work, which was subsequently searched. Officer Willis brought the accused to the police station, put him in touch with counsel and gave him an opportunity to make a statement, which the Applicant declined.
[23] Detective Willis recommended that the Crown seek a three-day adjournment pursuant to s.516. In his affidavit, he gave the following reasons for that recommendation:
The reason for this [adjournment] request was the expectation that additional victims would come forward as a result of the media release. The reasoning behind this hold resulted from the statement obtained by victim Chelsea [G.] who mentioned a further female employee who had been assaulted, but was hesitant to come forward. Furthermore, it was my belief that further judicial authorizations would be conducted to search for potential remote video surveillance of the business, and for the seizure of clothing for analysis from the accused.
[24] In his testimony, the officer admitted that the video surveillance and the clothing, which were seized before the Applicant got to the courthouse, would not be analyzed during the three-day adjournment. He also admitted that the “further female employee who [he believed] had been assaulted but was hesitant to come forward” was interviewed before the Applicant appeared in court. However, since Chelsea G. never gave the name of the “further female employee”, the officer could not confirm until well after the adjournment of the bail hearing that the female who was interviewed was indeed the same potential complainant.
[25] Detective Willis admitted that the real reason for the adjournment related to the potential for further complainants to come forward, as he had reason to believe the Applicant had assaulted other female employees. He explained that he felt the Applicant’s detention was necessary in the circumstances to:
(1) Ensure the Applicant did not intimidate other complainants from coming forward; and
(2) Ensure that the Applicant did not destroy evidence in relation to complainants that had not yet emerged.
[26] The investigation did continue during the three-day adjournment, such that on the second day, two additional females came forward and gave statements. Their evidence did not lead to charges, but they did assist the investigation in supporting the initial complainants’ description of the Applicant’s inappropriate behaviour. In other words, they improved the strength of the Crown’s case. The Crown consented to the Applicant’s release on the third day.
[27] Sometime after the Applicant’s release, three additional complainants came forward and charges were laid in relation to them. The Crown repeatedly consented to the Applicant’s release after each of the following new complainants emerged.
THE RELEVANT LEGAL PRINCIPLES
[28] It is trite law that a stay will only be imposed in the “clearest of cases”. A stay may be granted where there has been an abuse of process, which negatively impacts either the fairness of the trial or the integrity of the judicial process. As noted by L’Heureux-Dubé J. in R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, at para. 75, there are two criteria for such an analysis:
…a stay of proceedings will only be appropriate when two criteria are fulfilled:
(1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and
(2) no other remedy is reasonably capable of removing that prejudice.
[29] A stay can be imposed where there has been an abuse of process which will negatively impact the fairness of the trial or where past state conduct may undermine the integrity of the judicial process (O’Connor, supra). However, it is only in exceptional circumstances that past conduct will be sufficient to warrant a stay of proceedings. This principle was emphasized in Canada (Minister of Citizenship & Immigration) v. Tobiass, 1997 322 (SCC), [1997] 3 S.C.R. 391, in which a unanimous Court said at para. 96:
Admittedly, if a past abuse were serious enough, then public confidence in the administration of justice could be so undermined that the mere act of carrying forward in the light of it would constitute a new and ongoing abuse sufficient to warrant a stay of proceedings. However, only an exceedingly serious abuse could ever bring such continuing disrepute upon the administration of justice.
[30] Similarly in R. v. Regan, 2002 SCC 12, , Lebel J. said at para. 55:
… most cases of abuse of process will cause prejudice by rendering the trial unfair. Under s. 7 of the Charter, however, a small residual category of abusive action exists which does not affect trial fairness, but still undermines the fundamental justice of the system (O'Connor, at para. 73). Yet even in these cases, the important prospective nature of the stay as a remedy must still be satisfied: "[t]he mere fact that the state has treated an individual shabbily in the past is not enough to warrant a stay of proceedings" (Tobiass, at para. 91). When dealing with an abuse which falls into the residual category, generally speaking, a stay of proceedings is only appropriate when the abuse is likely to continue or be carried forward. Only in "exceptional"," relatively very rare" cases will the past misconduct be "so egregious that the mere fact of going forward in the light of it will be offensive" (Tobiass, at para. 91).
[31] More recently, in R. v. Picirilli, 2014 SCC 16, [2014] 1 S.C.R. 309 (Babos) Moldaver J. provided further guidance on when past misconduct will be deemed to be “so egregious” that a stay is warranted. He said at para. 41:
However, when the residual category is invoked, the balancing stage takes on added importance. Where prejudice to the integrity of the justice system is alleged, the court is asked to decide which of two options better protects the integrity of the system: staying the proceedings, or having a trial despite the impugned conduct. This inquiry necessarily demands balancing. The court must consider such things as the nature and seriousness of the impugned conduct, whether the conduct is isolated or reflects a systemic and ongoing problem, the circumstances of the accused, the charges he or she faces, and the interests of society in having the charges disposed of on the merits. Clearly, the more egregious the state conduct, the greater the need for the court to dissociate itself from it. When the conduct in question shocks the community's conscience and/or offends its sense of fair play and decency, it becomes less likely that society's interest in a full trial on the merits will prevail in the balancing process. But in residual category cases, balance must always be considered.
[32] This high threshold has been further emphasized in its application to cases involving beatings of an accused by state actors. In Bellusci, 2012 SCC 44, a correctional officer was transporting an accused in a secured vehicle with other inmates. The officer indicated loud enough for other inmates to hear that the accused was a “rapist”. Having been provoked, the accused threatened to sexually assault the correctional officer’s family members. The officer then beat the accused leaving him with an imprint of wire mesh on his skin, deformation of his forearm, and bumps and injuries to his head. The threat to the officer’s family members was stayed. Noting that the substantive offence was committed as a result of being inappropriately provoked by a state agent and noting that the offence was followed by a serious assault at the direct hands of the state, the Supreme Court of Canada found that the trial judge was acting within his discretion in imposing a stay. However, in so doing Fish J. notably implied, while speaking for a unanimous court, that he would not have imposed a stay in those circumstances.
[33] In R. v. Singh, 2013 ONCA 750, the accused was beaten by police on three separate occasions, over an extended period of time while he was in police custody. There were three police officers involved. They punched and kneed him. They squeezed his throat and slammed his head against the wall, until he was close to blacking out. He indicated he was in so much pain that he begged the officers to kill him. Thereafter they cleaned him up and directed him to say on video that he did not want to speak to a lawyer. There were no long-lasting injuries. Mr. Singh’s co-accused was also beaten to the point his ribs were broken, the Crown stayed the charges in relation to the co-accused. In finding that the trial judge erred in not imposing a stay with respect to Mr. Singh, the Court of Appeal focused on the systemic, ongoing problem:
What occurred here was not a momentary overreaction by a police officer caught up in the moment of a difficult interrogation. What occurred here was the administration of a calculated, prolonged and skillfully choreographed investigative technique developed by these officers to secure evidence. This technique involved the deliberate and repeated use of intimidation, threats and violence, coupled with what can only be described as a systematic breach of the constitutional rights of detained persons — including the denial of their rights to counsel. It would be naïve to suppose that this type of egregious conduct, on the part of these officers, would be confined to an isolated incident.
[34] The Court of Appeal in Singh noted that the seriousness of the charges, the seriousness of the injuries and the absence of any trial fairness concerns are all “important factors” in the analysis, but not the only factors to consider. Clearly, the Court believed that the systemic nature of the police conduct was also significant.
[35] In R. v. Tran, 2010 ONCA 471, the Court of Appeal found that the trial judge erred in failing to impose a stay. In that case, two police officers beat a man charged with multiple robberies, after he had voluntarily turned himself in. He suffered a broken jaw and permanent physical injuries. The officers denied the accused access to the medical attention he obviously needed. They lied to their fellow officers and they perjured themselves at the voir dire. Epstein J.A. found that based on the police officers’ misconduct, the trial judge could have granted a stay. She went on to find that the Crown exacerbated the abuse by seemingly approving of the police conduct and thus, in light of the Crown’s actions a stay was necessary in that case.
[36] Epstein J.A. differentiated the facts in Tran from those in R. v. Nasogalauk, 2005 ABQB 994, 229 C.C.C. (3d) 52, (aff’d on another issue at 2007 ABCA 339, and at 2010 SCC 6) in which police officers beat the accused leaving him with broken ribs, and failing to get him the medical attention he obviously needed. As a result, Mr. Nasogalauk’s lung collapsed. Police failed to film the interaction, although they had readily available cameras. And they did not report his obvious injuries. The trial judge found Mr. Nasogalauk’s ss. 7, 11(d) and 12 rights were violated, but a stay was not warranted. Instead, his sentence was reduced.
[37] The high threshold associated with entering a stay of proceedings has also been emphasized in cases where the stay application was based on a lengthy delay of the bail hearing. In R. v. Zarinchang, 2010 ONCA 286, the court overturned the trial judge’s decision to impose a stay, where the bail hearing was delayed for 24 days from the date of arrest, due to the lack of court resources. The appellate court found that the 24-day delay violated Mr. Zarinchang’s rights under ss. 7, 9 and 11(e) of the Charter, but was in itself insufficient to support a stay. However, the court left open the possibility that the systemic problem that caused the delay could be sufficient to warrant a stay and sent it back to the trial court for a proper consideration on that issue.
[38] In R. v. B.(S.), 2014 ONCA 527, the Court of Appeal upheld the trial judge’s decision not to impose a stay for a 17-year-old whose bail hearing was delayed for 12 days without his consent due to insufficient resources. B.(S.) had no criminal record and the court recognized he was in all likelihood going to be released on bail (and was). The appellate court found the trial judge was within his discretion to find the accused’s s. 11(e) rights were violated, but that a stay was not warranted.
[39] Most recently, in R. v. Reilly, 2020 SCC 27, the accused was not brought before a justice within 24 hours of being arrested and thus, s. 503 of the Criminal Code was violated. Instead, Mr. Reilly was brought before a justice 36 hours after his arrest, at which time he had a bail hearing and was released. The Supreme Court found that in light of the trial judge’s finding of fact that there was “a systemic and ongoing problem [in the province of Alberta] that was not being satisfactorily addressed”, the trial judge was acting within her discretion when she imposed a stay as a result of the s. 503 violation.
[40] Thus, in exceptional circumstances, past behaviour of state actors may warrant a stay. More specifically, a stay may be justified in extreme cases involving beatings at the hands of the state, or involving lengthy adjournments of bail hearings, where there is evidence of a systemic problem of not being able to adhere to the minimum requirements set out in the Criminal Code.
APPLICATION TO THE CASE AT BAR
[41] The defence submits that the combination of the following factors amounted to an abuse of process warranting a stay of proceedings in this case:
A. The inappropriate use of requesting a three-day adjournment pursuant to s. 516 of the Criminal Code;
B. The police officer’s violation of the Applicant’s right to silence; and,
C. The evidence a corrections officer directed or encouraged an inmate to attack the Applicant and then, together with other officers, covered up the state’s involvement in the attack.
[42] I will address each of these three concerns in turn.
A. THE USE OF S. 516
[43] The Applicant submits that the state violated his Constitutional Rights in seeking an adjournment of the bail hearing pursuant to s. 516 of the Criminal Code.
(I) The proper use of s. 516
[44] Section 516 of the Criminal Code grants the court the power to adjourn bail hearings for three days without the consent of the accused:
s. 516 (1) A justice may, before or at any time during the course of any proceedings under section 515, on application by the prosecutor or the accused, adjourn the proceedings and remand the accused to custody in prison by warrant in Form 19, but no adjournment shall be for more than three clear days except with the consent of the accused.
[45] Although s. 516 confers a power on the court, that power should be used sparingly. In R. v. Myers, 2019 SCC 18, [2019] 2 S.C.R. 105, at para. 38 Wagner C.J. noted that “[d]elays in routine bail and detention matters are a manifestation of the culture of complacency denounced by this Court in Jordan, and must be addressed.” In R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509, he held that “release is favoured at the earliest reasonable opportunity”. And in R. v. Hall, 2002 SCC 64, [2002] 2 S.C.R. 309, Iacobucci J. acknowledged at para. 47:
Liberty lost is never regained and can never be fully compensated for; therefore, where the potential exists of the loss of freedom for even a day, we, as a free and democratic society, must place the highest emphasis on ensuring that our system of justice minimizes the chances of an unwarranted denial of liberty. [Emphasis added.]
[46] Most recently, in Zora, 2020 SCC 14, Martin J. noted that accused individuals are prejudiced in many ways by the delays of bail hearings. She said at para. 62:
Pre-trial detention can result in negative impacts on accused persons’ employment and income, housing, health and access to medication, relationships, personal possessions, and ability to fulfill parental obligations (Canadian Committee on Corrections, Report of the Canadian Committee on Corrections (1969), at pp. 101-2 (“Ouimet Report”); CCLA Report, at pp. 8-10; Pivot Report, at p. 81).
[47] It is apparent from the present case that pre-trial detention can also result in physical abuse at the hands of other inmates. Thus, bail hearings should only be adjourned without the consent of the accused in very limited circumstances.
[48] In his leading textbook on bail (Gary T. Trotter, The Law of Bail in Canada, 3rd ed. (Toronto, Ontario: Thomson Reuters Canada, 2017), at Section 5.3), Justice Trotter provided some guidance on when s. 516 should be resorted to:
With time being such a monumental concern when it comes to bail, generally speaking, it is essential that a bail hearing is conducted as soon as possible. This important goal would be thwarted if it were permissible for a court, on its own motion, or at the request of the prosecutor, to unduly delay the proceedings. However, on occasion, it may not be possible or in the best interests of either party to proceed on the first appearance.
As far as the prosecutor is concerned, it may be necessary to make further inquiries about the accused person and/or the details of the alleged offences. Moreover, if there are outstanding charges and the prosecutor contemplates an application to revoke any previous form(s) of release, time may be required to obtain the relevant documentation, including previous forms of release.
[49] In R. v. Donnelly, 2016 ONCA 988, Watt J.A. provided further guidance on the appropriate use of s. 516 at para. 80:
A Crown's request for adjournment pursuant to s. 516 is not an absolute right, but rather must be made on a good faith basis and informed by the requirement for a just cause analysis pursuant to s. 515, such that an accused otherwise entitled to release will not be arbitrarily detained. [Emphasis added.]
[50] Thus in addition to having good faith, the state must, in assessing whether to request an adjournment under s. 516, consider the relationship between the grounds for the adjournment and appropriate grounds for a detention under s. 515, which include:
515 (10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:
(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;
(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and
(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including
(i) the apparent strength of the prosecution’s case,
(ii) the gravity of the offence,
(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and
(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.
[51] In Donnelly, Watt J.A. focused on the Crown’s basis to request an adjournment, rather than on the court’s grounds for granting an adjournment, which is not surprising since the Crown bears a lot of responsibility to ensure the request is appropriate. It is difficult at this stage of the process for the defence to challenge, or the court to assess, the need for an adjournment. This principle was recognized in the following passage of the trial decision for Mr. Donnelly[^2] at para. 41:
I agree with counsel for the applicant that adjournment requests such as this have to be based on a high level of trust and good faith among prosecutors and defence counsel. Defence counsel are entitled to take at face value information relayed by a prosecutor as justifying the need for an adjournment. At this early stage, the defence has virtually no information about the case. All of that information rests with the police and, to the degree that they have passed it along, with the prosecution. This information imbalance leaves defence counsel generally ill-equipped to challenge the reasons offered by the prosecutor for an adjournment.
In addition, from an entirely practical point of view, our system requires that adjournment requests of this type be handled expeditiously. First appearances cannot routinely turn into contested hearings or the system will collapse. This is another reason why there has to be full, fair and frank disclosure of the true state of affairs when an adjournment is requested.
[52] Watt J.A. approved of the use of s. 516 in Donnelly. He found that on the information the Crown had prior to the adjournment they were reasonably seeking Mr. Donnelly’s detention on the secondary and tertiary grounds. The primary reason for the adjournment was to allow police to investigate, with a focus on delineating “Donnelly's role” in the offences charged and “his suitability for release”. In the course of the three-day adjournment, police obtained inter alia reports from multiple therapists and it was only after gathering such information that the Crown was in a position to provide the court with an assessment of his risk. The Crown ended up consenting to Mr. Donnelly’s release. The grounds supporting the adjournment related to appropriate grounds for a detention under s. 515 (10).
[53] There is little to no other guidance on the appropriate use of s. 516. However, in Myers, Wagner C.J. provided some guidance on when detention reviews under s. 525 may be adjourned. He said at para. 41:
That being said, an adjournment should not be precluded where it clearly serves the interests of justice and the underlying purposes of the provision. For example — without limiting the foregoing — where a key piece of information is missing or a key event is pending, it would be entirely appropriate for the judge to adjourn the hearing until such time as the detention of the accused can be meaningfully assessed. The reviewing judge's exercise of this supervisory authority must ultimately be guided by the overarching purpose of the provision, which is to prevent an accused person from languishing in pre-trial custody and to ensure a prompt trial by subjecting lengthy detentions to judicial oversight. As a result, adjournments must always be used in a manner that safeguards and is consistent with the right of the accused to a prompt and thorough review of his or her detention when the 90-day mark is reached. Reviewing judges must rely on good sense and experience in order to ensure that adjournments enhance rather than undermine the purpose of the s. 525 detention review. [Emphasis added.]
[54] Thus, bail reviews should be adjourned “where a key piece of information is missing or a key event is pending” – or there is some other reason akin to one of those at play. If anything, there should be stronger grounds to support an adjournment of a bail hearing at first instance, where unlike at the bail review stage, no court has yet considered whether there are grounds to detain the accused at all.
[55] In summary, before requesting an adjournment under s. 516, the Crown must, at a minimum:
(1) consider the relationship between the grounds for the adjournment and appropriate grounds to detain an individual under s. 515;
(2) assess whether the grounds for the adjournment are akin to either missing a key piece of information or a key event is pending; and,
(3) it goes without saying, be acting in good faith.
(II) The Adjournment Request in the Case at Bar
[56] In this case, the Applicant – who had no criminal record – had two potential sureties and Duty Counsel, all of whom were prepared for a contested bail hearing on the day of the Applicant’s arrest, April 13, 2018. On the basis of the information the police had gathered by that point, the Applicant would in all likelihood have been released with his sureties. Considering the significance of unnecessarily subjecting a person to custody for even a day, the Crown had to have very good reasons to request an adjournment.
[57] Detective Constable Willis testified that he recommended that the Crown seek a three-day adjournment primarily to ensure the Applicant did not intimidate other potential complainants who might come forward during the three days and to ensure the Applicant did not destroy evidence in relation to those future complainants. In the rare circumstances of this case, the officer had grounds to believe that there were other complainants that had not yet reported and that at least one of them had not come forward out of fear of the Applicant. It is notable that during that three-day adjournment, other individuals did come forward and give statements that supported the allegations of the initial two complainants, even though their statements did not result in further charges. It is also notable that there were other complainants that came forward at a later time.
[58] Although the officer suggested in the affidavit that the adjournment was also necessary to allow police to seize video surveillance and clothing for analysis, the officer admitted (as is noted above) that both those items were seized prior to the adjournment and would not be analyzed before the Applicant returned to court on the Monday. However, police did continue to investigate that weekend.
[59] As emphasized by the Applicant’s counsel, a judicial interim release could have been fashioned to address most of the officer’s concerns in this case, including perhaps most significantly a condition to have no contact with any current or former female employees. Importantly, most of the officer’s concerns have no relation to any “just cause” for detaining an individual under s. 515. For example, there was a very weak connection between the s.515 factors and the officer’s concern regarding further potential complainants coming forward, because:
(1) The detention was not needed to clarify the alleged role of the Applicant in offences charged. Instead, the detention related to potential offences for which the police did not yet have a basis to lay charges; and,
(2) Even if a few more complainants came forward over the three days as anticipated by police, there would still not be “just cause” to detain him. Indeed, even after three more complainants did come forward and provided even more serious allegations (one involved forced intercourse), the Crown did not oppose the Applicant’s release.
It is apparent from Detective Willis’s testimony that there was no consideration of the relationship between the grounds for the adjournment and appropriate grounds for a detention under s. 515.
[60] In all the circumstances, I find that the request for an adjournment was not, using the language from Donnelly, supra, “informed by the requirement for a just cause analysis pursuant to s. 515” and accordingly, “an accused otherwise entitled to release” was “arbitrarily detained”. The Crown’s failure to ensure the adjournment request was founded on appropriate grounds, seriously impacted the Applicant’s rights and in fact, resulted in him unnecessarily being subjected to a serious assault.
[61] However, on the other hand, I do not find that the state agents intentionally disobeyed the law, ignored Charter values or were uneducated in the appropriate use of s. 516. Instead, I find their actions were not surprising given the lack of clarity in the state of the law in this area. It is also important to emphasize that there is no suggestion that either the police or the Crown were any way involved in the assault. I find that both the officer and the Crown were acting in good faith.
[62] Even if I found that the Crown or police were not acting in good faith, the delay of the bail hearing would not justify a stay. The cases of Zarinchang and B.(S.), both supra reveal that an individual’s right to a quick bail hearing must be seriously infringed before a stay is warranted. Perhaps, a violation of ss. 503 or 516 and/or evidence of systemic and ongoing problems would be needed before a stay could be justified on the basis of a delayed bail hearing alone. In any event, the inappropriate use of s. 516 in the case at bar was not a serious enough violation to in itself warrant a stay. I will address the cumulative effect of the issues if necessary, later in these reasons.
B. THE POLICE INTERVIEW
[63] The Applicant submits that his s. 7 rights were further violated during the interview process.
[64] After the Applicant was informed and exercised his right to counsel, he was placed in an interview room, where he was detained for close to half an hour. However, he was alone for most of that period. A police officer was only in the room with him for a total of less than nine minutes. During those nine minutes, the Applicant made it crystal clear that he intended to exert his right to silence. After the Applicant conveyed this position, the officer continued to speak to the Applicant and ask him questions.
[65] The officer described the Applicant, who was repeatedly exerting his right to silence, as a “repeating parrot”. He informed the Applicant, that the allegations had painted him as a monster. In particular, he said:
The allegations that were presented to us - I am here to provide an opportunity to you, because you are being painted like a monster, man.
[66] The officer did not say that the Applicant would be painted like a monster if he did not speak, but instead implied he had been painted like a monster by the allegations made against him. The officer told the accused multiple times that the Applicant need not say anything and that he was not there to “force” the Applicant to speak, or to make him any “inducements” or “promises”. The Applicant stuck to his guns and gave no statement.
[67] The Applicant argues that the officer violated his right to silence, (1) by using the adjective “parrot” to describe how the Applicant repeated his intention to remain silent; and, (2) by suggesting to the Applicant if he did not tell his side of the story, the Crown and Court would think he was a “monster”.
[68] As Charron J. emphasized in R. v. Singh, 2007 SCC 48, “the common law recognizes ...the individual’s right to remain silent”, but that does not mean that “a person has the right not to be spoken to” by the police (emphasis in original). Charron J. went on to find that police were expected to ask accused questions in order to investigate crime. In R. v. Rybak, 2008 ONCA 354, Watt J.A. added at para. 189 that there is no violation of the right to silence where police questioning “falls short of denying the detainee the right to choose or of depriving him or her of an operating mind”.
[69] The officer in the case at bar was permitted to speak and question the accused, who had been clearly informed of his right to remain silent. There were no threats or inducements, and in fact, the officer made it clear that the Applicant had a right to remain silent and was not being promised anything. The descriptor “parrot” did not violate the Applicant’s constitutional right to remain silent, nor did the officer’s statement that the allegations had painted the Applicant out to be a “monster”. The officer did nothing more than use colourful language to describe the situation the Applicant found himself in. He did not overbear the will of the accused. In fact, the Applicant remained silent. The officer’s actions in the interview room do not assist the Applicant in this application.
C. THE ASSAULT AND THE ALLEGED COVER UP
[70] The main argument of the defence is that a stay is warranted since a correctional officer, who was clearly a state agent, directed or encouraged an inmate to attack the accused, and then together with other officers covered up the attack.
(I) The Evidence the Attack was Directed by Officer Fryza
[71] The Applicant relies on the following evidence to support a finding that the assault was at the behest of Mr. Fryza:
(a) Sometime on April 13, 2018 prior to the Applicant’s arrival at the institution, Mr. Fryza learned that the Applicant had been arrested for sexually assaulting his stepson’s girlfriend;
(b) There was evidence that Mr. Fryza stayed up to an hour after his shift ended to see the Applicant arrive at the institution;
(c) The Applicant testified in a compelling manner that when he arrived at the institution, he saw Mr. Fryza point him out to other guards. Mr. Fryza confirmed that he saw the Applicant at that time. Although he did not believe he pointed the Applicant out to other guards, he did not exclude that possibility;
(d) The Applicant testified in a compelling manner that one guard asked another guard, “is that him?” – in relation to the Applicant. This evidence supports the inference that Mr. Fryza did discuss the Applicant’s arrest and pending arrival to other officers at the institution;
(e) The Applicant testified in a credible way that Mr. X asked for his first and last name before hitting him;
(f) The Applicant testified in a credible way that during the assault, Mr. X referred to “Chelsea”. The names of the complainants had not been disclosed in the media. The only way his attacker could have known the complainant’s name was through a personal source;
(g) The Applicant testified that Mr. X told him after taking a swing at him that he (the Applicant) should “push the button”, which the Applicant submits is consistent with Mr. X wanting to minimize the harm to the Applicant and thus, evidence Mr. X was acting at someone else’s direction rather than to fulfil his own desire to hurt the Applicant;
(h) Mr. Fryza called in sick the next day – being Saturday, returned to work on the Sunday, and could not remember, at the time he testified, the details of that day off; and,
(i) Mr. Fryza’s evidence that he was not involved in the assault was both incredible and unreliable. He repeatedly indicated that the questions pertained to events three years earlier and he had little recollection of that time. More importantly, he was a difficult witness, who had to be directed to answer the questions more than once. He was eating, drinking and slumped over while he testified via Zoom and was anxious to finish his testimony so he could go shopping.
[72] Based on the foregoing, the Applicant submits that Mr. Fryza directed the attack when he spoke to other officers after the Applicant arrived at the institution on April 13, 2018.
[73] In response the Crown submits that:
(a) The Applicant’s evidence that Mr. X referred to “Chelsea” is unreliable since the Applicant did not have a good opportunity to make observations at that time, and since the descriptor “little girl” was inapplicable to Chelsea G.;
(b) There are several alternate reasons why Mr. Fryza may have only taken off one day. He may have had the 24-hour flu; or he may have lied to the institution since he wanted to spend Saturday with his family or friends. The fact he could not say at the time of the application, three years after the event, why he took only one day off should be of no moment. In fact, it would have been suspicious if he could recall three years later why he was off that one day;
(c) There was a lack of opportunity for any messages or direction to get to the assailant between the time the Applicant arrived at his cell and the next morning. All the inmates were locked in their cells when the Applicant arrived and Mr. X (the assailant) came to talk to him in the morning just as the cells were unlocked; and,
(d) It is unlikely that Mr. X received a message from Mr. Fryza via staff either before the Applicant arrived at his cell, or the next morning after the cells were unlocked. No one would have known the Applicant was going to be placed in the same unit as Mr. X before the Applicant was processed and on his way to his cell. He only asked to be placed in protective custody during that processing stage. And with respect to the next morning, the staff supervising unit “F” at that time seemed surprised – according to the Applicant himself – when the Applicant informed them that one of his accusers had relatives working at the institution.
(II) Evidence of a Cover Up
[74] As further evidence that Mr. Fryza directed the beating, the Applicant submits that there was an extensive cover up, including (i) falsified records; (ii) destruction of evidence; (iii) failure to properly investigate the assault; and (iv) perjury by Mr. Fryza.
(i) Falsified Records
[75] The Applicant submits that documents contained the following three falsified statements:
(a) There is a notation on a protective custody form dated April 14, 2018 which indicates that the Applicant refused to sign the form, when in fact the Applicant never refused to sign any of the forms;
(b) There is a notation on a follow-up form to the attack which suggests there was going to be a police investigation and that charges were going to be laid, when in fact it was clear from the outset that neither of those things were going to happen; and,
(c) There is a notation on an occurrence report that the author of the report, officer Saunders, “had difficulty determining the identity of the assailant due to poor video clarity”, when the video was in fact quite clear.
[76] I cannot find that any of these documents were intentionally falsified, rather than the result of sloppy work. With respect to the first allegation, I accept that the Applicant did not refuse to sign the form and thus, the form was falsified. However, the form was filled out consistent with the Applicant’s wishes to move to another protective custody unit and there was no other substantial information on the form, so I cannot conclude that it was falsified to cover anything up. Similarly, I cannot accept the allegation that the institution acted suspiciously in stating that there was going to be a police investigation when there clearly was never going to be one. I do not find those actions suspicious since it was the Applicant alone who decided there would be no charges laid.
[77] The Applicant’s final submission is that when officer Saunders wrote, “I had difficulty determining the identity of the assailant due to poor video clarity”, he must have been lying, since the video was clear and the assailant was sufficiently different in appearance from the other inmates in that unit, that he could be identified through a process of elimination. Officer Saunders also noted that the inmate was “not high profile”, which would suggest he in fact knew who it was. However, the inmates were quite small on the video and their faces could not be seen. Accordingly, the officer might not have been able to tell who the inmate was without obtaining a list of the inmates in that unit and, perhaps he only knew the assailant was not “high profile” as there were no “high profile” inmates in unit “F” of pod 1 at that time. I note that there is no evidence that the video itself was destroyed, edited, hidden or withheld from the defence. It is difficult to find in these circumstances that the officer deliberately lied to cover up something (rather than was simply lazy in his investigation) without hearing from the officer himself.
(ii) Destruction of Evidence
[78] With respect to the allegation that evidence was intentionally destroyed, I note that the Applicant emphasized the initial punch as being a serious part, if not the most serious part of the assault on him and the video of that portion of the attack was not destroyed, but was provided to the defence. The defence presented no evidence as to whether the second half of the attack was caught by any video camera. The evidence simply does not support a finding that any recording of the assault was destroyed. Nor is there any evidence that other relevant videos were destroyed for the purpose of covering up the attack.
(iii) Failure to Properly Investigate the Assault
[79] The Applicant relies on the institution’s failure to do a thorough investigation after the assault as evidence of a cover up. However, the officers did document the Applicant’s injuries, they took him to see the nurse to ensure he was okay, they took photographs of the injuries, they wrote up a report outlining the general nature of the attack and they preserved at least a key video. Perhaps more significantly, the Applicant informed the staff at CECC that he had no interest in pursuing criminal charges against his assailant. There is simply a lack of evidence to find that the failure to do a thorough investigation was an attempt to cover up the source of the attack.
(iv) Perjury by Mr. Fyza
[80] Finally, the Applicant submits that Mr. Fryza perjured himself during the application before me in order to conceal his involvement in the assault. I was not impressed with Mr. Fryza’s testimony, he displayed a complete lack of respect for the court. However, I cannot rule out the possibility that the problems with his evidence related to a lack of interest in assisting the judicial process, rather than were the product of him hiding his own wrongdoing. Accordingly, I cannot conclude based on the evidence that he committed perjury for the purposes of covering up the circumstances surrounding the assault.
(III) CONCLUSIONS REGARDING THE FACTS OF THE ASSAULT
[81] Considering all of the evidence, I am satisfied that Mr. Fryza mentioned the possible arrival of the Applicant to other officers in the institution. I further find that the Applicant was credible and I have no doubt that he was assaulted and was left with a bloody lip and dizziness.
[82] I accept most of the Applicant’s testimony. However, I find that his evidence that Mr. X said “Chelsea” during the attack was unreliable. The Applicant did not have a good opportunity to make accurate observations at that point. The video showed that the encounter with Mr. X lasted a total of four seconds, during which Mr. X asked the Applicant his last name, checked the Applicant’s wristband, punched him hard enough for his glasses to fall off, said, “So you like to hit little girls - Chelsea” and repeatedly directed him to “push the button”. When I consider the lack of opportunity for the Applicant to process what was happening to him, how traumatizing this experience was, the fact that the addition of the name “Chelsea” is somewhat out of place in the phrase “So you like to hit little girls – Chelsea. You better push the button.”, and the fact the term “little girl” has no relation to the complainant Chelsea, I find his evidence as to what Mr. X said in those moments unreliable.
[83] The evidence that the assailant referenced “Chelsea” during the assault was pivotal to link Mr. Fryza to the attack. Without it, there is nothing to directly link the assault to Mr. Fryza, and Mr. Fryza’s testimony supports a finding that there are a number of other reasons why the new inmate in unit “F”, who is an alleged sex offender, may have been attacked. Furthermore, as pointed out by the Crown, the evidence suggests there was in fact a lack of opportunity for Mr. Fryza to get a message to Mr. X before the assault. As a result, I cannot draw the conclusion the Applicant is asking me to draw, namely that Mr. Fryza ordered the attack. Based on the evidence that I accept, I do not find that Mr. Fryza did anything with the intention of encouraging or directing an attack.
IS A STAY WARRANTED?
[84] Furthermore, even if I had concluded that Mr. Fyza directed inmates to assault the Applicant, I would not find it (either alone or together with the inappropriate use of s. 516) sufficient to support a stay of proceedings.
[85] Unlike in Bellusci, supra the inappropriate state conduct in this case (even assuming Mr. Fryza directed the attack) was not the impetus for the criminal offence itself. And the seriousness of the state conduct in this case pales in comparison to that in Tran or Singh, both supra. In those cases, state agents perpetrated serious prolonged assaults on the accused that resulted in permanent injuries, and then the officers denied the accused access to obviously needed medical treatment. The officers furthermore attempted to cover up their actions, including by in Tran, perjuring themselves. Whereas this case involved a momentary assault that resulted in minor injuries, the accused was immediately brought to see a nurse, and his injuries were documented.
[86] The three “important factors” listed in Singh, namely the seriousness of the charges (the charges are serious); the seriousness of the injuries (he suffered a cut lip and was dizzy - there were no permanent physical injuries and no diagnosed lasting psychological injuries) and the lack of trial fairness concerns (there are none), all weigh in favour of dismissing this application. And notably, there was no evidence of a systemic or ongoing problem. Indeed, the unique circumstances of this case, suggest it was a one-off. When I ask myself the pertinent question as was articulated by Moldaver J. in Babos, “which of two options better protects the integrity of the system: staying the proceedings, or having a trial despite the impugned conduct”, it is abundantly clear that in this case, having a trial despite the impugned conduct better protects the integrity of the system.
[87] The application is dismissed.
Justice Verner
Released: April 27, 2021
[^1]: Chelsea G.’s boyfriend also worked at CECC at the time, but there was no evidence or suggestion that he was involved in the assault in any way.
[^2]: R. v. Donnelly, 2013 ONSC 7798. Although Watt J.A. reversed Nordheimer J.’s finding on whether there was a Charter violation, Nordheimer J.’s observations of the difficult position of the defence is of value.