Superior Court of Justice - Ontario

COURT FILE NO.: CR-21-10000011-00MO

DATE: 20210420

RE: R. v. A.B.C.[^1]

BEFORE: MOLLOY J.

COUNSEL: Joel Hechter and Cat Mercer, for the Applicant/Defendant Aaron Del Rizzo and D. Guttman, for the Respondent/Crown

HEARD: April 7, 2021 by Zoom

ENDORSEMENT

This Application

[1] The defence applies by way of certiorari to quash the decision of Justice Michael Block of the Ontario Court of Justice dated December 17, 2020, and for an order of mandamus directing Block J. to hear an application by the accused for a stay of proceedings prior to the commencement of trial. In his ruling on December 17, 2020, Block J. held that he would not deal with the constitutional challenges raised by the stay application until the conclusion of the trial on its merits.

Background

[2] A.B.C. is a transgender/non-binary refugee whose pronouns are they/them/their. A.B.C. arrived in Canada as a permanent resident on October 12, 2019 and was housed at a temporary refugee accommodation centre in Toronto. On November 14, 2019, A.B.C. was arrested and charged with sexual assault, sexual interference, forcible confinement, and assault, following a statement given to police that same day by a 15-year-old boy (Complainant 1) who lived at the same refugee centre. These offences were initially alleged to have been committed on November 8, 2019 in A.B.C.’s unit at the centre. A.B.C. was released on bail on those charges.

[3] Two weeks later, an 18-year-old man (Complainant 2) alleged that A.B.C. had also sexually assaulted him. Complainant 2 was a friend of Complainant 1 and lived in the same refugee centre as both A.B.C. and Complainant 1. According to Complainant 2, the assault took place in A.B.C.’s room. He said that during the month of September 2019, A.B.C. pushed him into the room, held him there, and attempted to kiss him. On November 29, 2019, the police arrested A.B.C. again and charged him with sexual assault and assault of Complainant 2 between September 12 and September 30, 2019.

[4] At the time of the first arrest on November 14, A.B.C. provided police with details of an alibi for November 8, 2019, the date upon which Complainant 1 said the assault occurred. The police also obtained at that time copies of A.B.C.’s immigration documents showing that they entered Canada for the first time on October 12, 2019. The police did not check the surveillance video footage in the refugee centre until December 3, 2019. At that time, they confirmed that A.B.C. was not in the building at the time Complainant 1 said he had been assaulted. The police did not speak to Complainant 1 about this discrepancy until early February 2020, at which point Complainant 1 provided some other possible dates for when the offence occurred. However, by this time, the surveillance footage for November had already been automatically overwritten by the system, which only retains footage for two months.[^2]

[5] On December 2, 2019, the Toronto Police Service issued a media release stating that they wanted to make the public aware of two separate sexual assault investigations they had begun. They provided: A.B.C.’s full name and age; their photograph; a summary of the charges against them; a suggestion that “other victims” may exist; and an invitation to contact police. The media release was picked up by various news agencies and rebroadcast on traditional and social media. A.B.C. alleges that as a result of this publication they have received death threats, had their property damaged, and been called a criminal. A.B.C. stated they fear for their safety and the safety of family members outside Canada, who have also been threatened.

The Decision Under Review

[6] The Crown elected to proceed summarily on both sets of charges. The trial is scheduled to be heard before Block J. in the Ontario Court of Justice on June 10, 2021. In advance of the trial, the defence applied for a stay of proceedings, which application was heard by Block J. on December 10, 2020. One of the grounds for the stay of proceedings was the assertion that the media release issued by the police on December 2, 2019 was a breach of the accused’s rights under ss. 7, 8, and 15 of the Canadian Charter of Rights and Freedoms.

[7] The media release is purportedly authorized through a statutory regime which permits the chief of police, or their designate, to disclose personal information about a person charged with an offence for various purposes, including the protection of the public and for law enforcement.[^3] A.B.C. challenges the constitutionality of these statutory provisions. Alternatively, if the scheme is found to be constitutional, the accused asserts that the conduct of the police in issuing the media release was not authorized under the legislative scheme. Because the Ontario Court of Justice is a statutory court without inherent jurisdiction, a declaration of invalidity would not be an available remedy. Instead, the accused seeks a remedy under s. 24(1) of the Charter: a residual category stay of proceedings in respect of all charges against them.

[8] After taking some time to reflect on the matter, on December 17, 2020, Block J. delivered brief oral reasons for his decision to leave the constitutionality issue to be determined at the end of the trial on its merits. In summary, he ruled:

(a) Timing: The merit of the constitutional challenge is difficult to assess in advance, and should therefore wait until after the determination of whether the Crown has proved the charges (citing R. v. Martin, 1991 CanLII 7340 (ON CA), 2 O.R. (3d) 16 (C.A.))

(b) Judicial Restraint: Particularly on constitutional issues, judges should not pronounce on issues that are not necessary to decide the case (citing R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130)

(c) Judicial Resources: Trial courts are required to manage court time and judicial resources efficiently. Pronouncing on the constitutional issue first would require a lengthy delay. If decided in favour of the defendant without a verdict on the merits, there would be an even further delay if the constitutionality decision was reversed on appeal.

(d) Reputation of the Administration of Justice: By “hearing the merits of this case,” the Court does not “risk being tarred by association with police misconduct or constitutionally invalid legislation.” This is particularly so as there was no evidence to suggest that “any prejudice suffered by the defendant will be prolonged by this order of proceedings (distinguishing R. v. Tran, 2010 ONCA 471, 103 O.R. (3d) 131).

(e) COVID-19: the obligation to manage court resources efficiently is more pressing in light of the pandemic, which has stretched the assets of the administration of justice to the breaking point.

The Role of This Court on Review

[9] The scope of review on certiorari and mandamus is limited to errors of jurisdiction. This is not an appeal, and a simple error of law is not a basis for review. Neither is there any basis to intervene where the provincial court judge exercised a discretion that was open to him on the facts, regardless of the reviewing judge’s view as to how they would have exercised that same discretion. However, a failure to act judicially, or a breach of the principles of natural justice, is a reviewable error. Likewise, if the motions judge failed to exercise a duty that he was required to carry out, this would also constitute an error going to jurisdiction, justifying intervention.[^4]

Position of the Defence

[10] Mr. Hechter, for the applicant defendant, mounted a compelling argument that the trial judge’s decision amounts to a summary dismissal of the abuse of process application because the remedy sought by A.B.C. to obtain a stay of proceedings without having to go through a trial. Mr. Hechter submits that postponing the consideration of the constitutional issue until after the trial on the merits is effectively a dismissal of the application. On the motion before Block J., the defence outlined the evidence they would mount in respect of the constitutional challenge to the legislative scheme, including: an anticipated expert report from Dr. Greta Bauer of the University of Windsor; an anticipated expert report from Professor Paula Maurutto of the University of Toronto; transcripts of cross-examination of these experts out of court; Hansard transcripts of debates and committee evidence; documents from Ontario police services about the use of the legislative scheme to broadcast information about accused persons to the general public; viva voce evidence from witnesses involved in the preparation and broadcast of the media release at the centre of the controversy; and testimony of the accused as to the harms suffered. None of this evidence was before Block J. on the motion, and indeed most of it has not even been obtained yet by the defence. Mr. Hechter submits that denying the remedy sought without having heard the evidence to be brought forward by the defence is a denial of natural justice and an error going to jurisdiction.

[11] The defence also submits that the trial judge had a mandatory duty to protect the integrity of the judicial system and he neglected that duty by failing to properly consider that proceeding with the trial would be condoning the unconstitutional actions that have harmed the accused. The trial judge failed to exercise his mandatory duty to consider whether the trial should happen at all in light of the alleged unconstitutional harm.

[12] Finally, the defence argues that the trial judge mistook the nature of the remedy sought when he held that this issue would be moot if the accused was acquitted on the substantive charges.

Analysis

[13] I will deal with these arguments in reverse order.

[14] First, with respect to the mootness issue, I find no jurisdictional error. The trial judge was aware that he had no jurisdiction to make a declaration of constitutional invalidity and that his only ability to provide a remedy for breach of A.B.C.’s Charter rights would be under s. 24 (1). He was also aware that if the accused was acquitted on the substantive charges, that would terminate the proceeding before him, regardless of whether the legislation or the actions taken under it were constitutional or an abuse of process. At the point of acquittal, those constitutional issues would therefore be moot. A.B.C.’s cause of action would not be obliterated, but the matter would have to be litigated in the superior court. The trial judge correctly stated the law that broad constitutional pronouncements should only be made when necessary to decide a case.[^5] This was a relevant issue for him to take into account in the exercise of his discretion in determining whether to hear the trial on its merits before dealing with the constitutional issue. He committed no error of jurisdiction in this regard.

[15] Secondly, I do not agree that the trial judge failed in his mandatory duty to protect the integrity of the administration of justice. On the contrary, the trial judge was alert to the overall requirements of the administration of justice, the importance of conserving court time and judicial resources, and the impact of the COVID-19 pandemic on the ability of the courts to meet their mandates. He also referred to the importance of timely trials, as emphasized by the Supreme Court of Canada in cases such as R. v. Jordan.[^6] The timely resolution of criminal charges before the courts is an issue that goes directly to the integrity of the justice system and respect the rights of all participants in that process, as well as the public at large. These are interests that the trial judge was required to, and did, protect. The trial judge understood the defence submission that proceeding with the trial could be seen as condonation of the violation of A.B.C.’s Charter rights, and he recognized how that could be related to the integrity of the justice system. However, it was not the only issue of importance to the general administration of justice, and not the only one he considered. He exercised a discretion in determining what weight to give to the various problems confronting the justice system. He did not exercise his discretion in the manner the defence had urged upon him, but he did not ignore his duty to protect the court system. There is no basis to intervene on this ground.

[16] Finally, on the issue of the right to be heard, I have considerable sympathy with the accused’s position that the decision of the trial judge to hear the trial on its merits first effectively takes away the primary remedy sought by the accused. However, if the accused is acquitted, they will have been vindicated with respect to the charges, and will still be able to assert the violation of their Charter rights and the unconstitutionality of the legislation. Alternatively, even if they might otherwise have been convicted on the charges, their Charter rights and abuse of process arguments will then be heard. The stay of proceedings remedy would still be available, and possibly other remedies as well (e.g. sentence reduction).

[17] However, I do not agree that the trial judge’s decision to proceed first with the trial on the merits amounts to a summary dismissal of the abuse of process application. The effect of the ruling is to remove one possible remedy from the remedies that would be available if the defence is successful in establishing a breach of the accused’s Charter rights. Admittedly, that is the remedy that the defence most wants to obtain, so that A.B.C. would not have to go through a trial at all. However, the trial judge gave consideration to that issue. He noted that the basis advanced for hearing the constitutional issue first was to protect the integrity of the administration of justice by avoiding what could be seen as condonation of conduct that would outrage the public.

[18] I emphasize that this portion of the trial judge’s reasons falls under the title “Timing of the Constitutional Attack on Legislation.” There is a significant difference between a Charter application based on attacking the constitutional validity of legislation, and an application based on things like police brutality or misconduct involving deliberate destruction or manufacturing of evidence. With one exception, the case law relied upon by the defence in which courts have declined to even start a trial in the face of these kinds of allegations and required that the abuse application be heard first all involved situations falling into the latter category. The one exceptional case, which did not involve police or prosecutorial misconduct, was a decision of Harris J. in R. v. Simonelli[^7] in which the accused was held in custody for 12 days before having a bail hearing due to systemic failings within the justice system. However, that case directly involved the judicial system failing in its constitutional obligations to an accused, which is distinguishable from the situation in this case.

[19] The impugned legislation is not the foundation of the charges against this accused. It relates to the release of information in relation to charges pending before the courts. It is wholly unrelated to the charges themselves. There is a presumption of constitutional validity that attaches to all legislation, which remains in place unless and until that legislation is found to be unconstitutional. Individuals who act with the authority of legislation are protected by that presumption of constitutional validity, unless they have invoked that legislation for an improper purpose, or do not fall within its requirements.

[20] In these circumstances, the trial judge concluded that proceeding with the trial would not risk the court being associated with police misconduct. The trial judge also found that the merits of the constitutional challenge are difficult to assess. In other words, if the legislation is invalid, it is not plain and obvious that this is the case. Again, this is a relevant factor to take into account.

[21] The applicant argues that the trial judge was not entitled to come to this conclusion without hearing the whole of the evidence relevant to whether the legislation is constitutionally valid. This amounts to asserting that the whole of the application must be heard before the trial judge can determine whether it is necessary to hear the whole of the application at this stage. That cannot be correct. Such a conclusion would unduly fetter the discretion of trial judges to determine the order in which matters are to be heard so as to ensure the efficient operation of the courts. The principle of audi alteram partem is not offended in this situation. The defence was fully heard on the issue of timing. There was no loss of jurisdiction by the trial judge and no basis for this Court to intervene.

Conclusion

[22] In the result, this application is dismissed.

[23] One issue that arose in the course of argument was the lack of clarity as to whether the ruling in question related to the entire abuse of process application or just the aspect of it that related to the constitutional validity of the legislation. I raised with counsel whether there was any suggestion that the media release was legitimately issued in good faith under the legislation, or whether there was some suggestion of police misfeasance in releasing information for an improper purpose. My understanding from both counsel is that the issue of timing of the abuse of process application related only to the constitutional validity of the legislation itself, and not to issues of police misconduct.

Molloy J.

Date: April 20, 2021

[^1]: An Order was made in the Ontario Court of Justice anonymizing the name of the accused by using the initials A.B.C. There is also a publication ban prohibiting the publication of any information that would identify the accused. On consent, I have continued both of those orders in this proceeding. Given the nature of this proceeding, revealing the identity of the accused at this stage would effectively undermine the basis for the constitutional challenge and stay of proceedings at the heart of this application. In these particular circumstances, I did not require the parties to provide notice to the media before imposing the publication ban.

[^2]: This is the subject of a lost evidence application at trial, which is not part of this application before me.

[^3]: The specific provisions challenged are: s. 41 (1.1) - (1.4) of the Police Services Act, R.S.O. 1990, c. P.15; 1997, c. 17, s. 9: 2006, c. 34, Sched. C, s. 27 as well as parallel subsections under s. 80 of the Community Safety and Policing Act, 2019, S.O. 2019, s. 1, Sch.1); the associated Regulation, O. Reg. 265/98; and s. 32 (c) of the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56.

[^4]: R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804; R. v. Sazant, 2004 SCC 77; Skogman v. R., 1984 CanLII 22 (SCC), [1984] 2 S.C.R. 93, 13 C.C.C. (3d) 161.

[^5]: R. v. Martin, 1994 CanLII 225 (ON CA), [1994] O.J. No. 1161, 72 O.A.C. 316 (C.A.).

[^6]: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631.

[^7]: R. v. Simonelli, 2021 ONSC 354.