ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E N:
HER MAJESTY THE QUEEN
Respondent
John Kingdon for the Crown Respondent
- and -
RAFFAELE SIMONELLI and MICHAEL SIMONELLI
Applicants
Sonya Shikhman for Applicant Raffaele Simonelli
Lindsay Daviau for Applicant Michael Simonelli
HEARD: November 23, 2020
REASONS FOR JUDGMENT
D.E HARRIS J.
1The issue to be decided in this application is the appropriate remedy for a Charter of Rights and Freedoms breach caused by a lengthy delay in holding the Applicants’ special bail hearing (i.e. a bail hearing requiring two hours or more). The delay between the Applicants’ arrests and their bail hearing was 12 days. On behalf of the Crown, Mr. Kingdon fairly concedes that as a result, Section 11(e) of the Charter was breached--the right not to be denied reasonable bail without just cause. He also agrees that the delay in holding the bail hearing was a systemic failure, not an isolated event, although in doing so, Mr. Kingdon did not agree the systemic problem was as long standing as the Applicants contend.
2As a remedy, the Applicants seek a stay of proceedings for abuse of process under Section 24(1) of the Charter. Mr. Kingdon, emphasizing the seriousness of the charges, resists a stay and argues that a stern “admonition” and\or a reduction of sentence, in the event the Applicants are later found guilty, should be the remedy imposed.1
3Consideration of this Charter application must take in a broader perspective than the delays suffered by these Applicants. It requires an assessment of the overall delays in holding special bail hearings in Brampton and the collective impact of delays on accused persons. Do the bail delays in the past and extending into the future fundamentally undermine confidence in the integrity and reputation of the administration of justice? In one of the leading cases on systemic delays in bail hearings, the Ontario Court of Appeal in R. v. Zarinchang, 2010 ONCA 286, [2010] O.J. No. 1548 (Ont. C.A.), at para. 59 placed the integrity of criminal justice at the centre of the analysis:
When the problem giving rise to the stay application is systemic in nature, the reason a stay is ordered is to address the prejudice to the justice system from allowing the prosecution to proceed at the same time as the systemic problem, to which the accused was subjected, continues. In effect, a stay of the charge against an accused … is the price the system pays to protect its integrity.
4The question here is: To what degree has the integrity of the system been compromised by the systemic bail delays in Brampton? In evaluating whether an abuse of process worthy of a stay has occurred, the cumulative damage to the reputation of the system must be balanced against the public interest in prosecuting these two Applicants, both charged with very serious criminal offences. The proposed remedy of a stay can only be imposed in the clearest of cases and if the need to uphold the integrity of the system outweighs the public importance in this prosecution.
i. THE NATURE OF THE CHARGES
5The Applicants were charged after an almost two-year investigation into betting and bookmaking offences some of which were allegedly committed by members of a criminal organization. The investigation, dubbed “Project Hobart”, focussed on 30 persons of interest and used various investigative techniques including wiretaps, the installation of video cameras, police surveillance and the tracking of vehicles. On the morning of the takedown, December 12, 2019, over 25 accused persons were arrested. More than 50 search warrants were executed.
6The Applicants, who are cousins, have criminal records, but the entries are dated and of little relevance. Both are charged with very serious offences including numerous bookmaking offences and illegal gambling offences, as well as bookmaking offences on behalf of a criminal organization, possession of proceeds of crime and keeping a common gaming house. The synopsis prepared for the bail hearing states that Raffaele Simonelli is a prospect for the Hells Angels Niagara Falls Chapter.
7Furthermore, it is alleged that on July 31, 2019, Raffaele Simonelli was in the gaming house located at Unit #9, 680 Silver Creek Blvd., Mississauga. Investigators had obtained judicial authorization to place cameras inside the unit. From the video surveillance, Raffaele Simonelli was seen removing a handgun from the ceiling. Michael Simonelli took the gun, placed it in a box and then put it in his car. He drove to Square One Mall in Mississauga. While he was in the mall, police officers smashed the rear window of the car and removed the gun. It was loaded. Both Simonellis are charged with firearm offences arising out of this incident. In addition, on the takedown date of December 12, 2019, a firearm was found in a concealed compartment behind the glovebox in Raffaele Simonelli’s vehicle. Two tasers were found in his home. He is charged with these offences as well.
ii. THE BAIL PROCEEDINGS AGAINST THE APPLICANTS
8After arrest early in the morning on the takedown day of December 12, 2019, Raffaele Simonelli retained counsel who was present that afternoon in Brampton bail court along with two potential sureties. The matter was not addressed until late in the afternoon and was adjourned to the following day for the bail hearing.
9On December 13, 2019, the two Applicants were grouped with three other accused arrested in the same Project Hobart takedown. The matter was addressed just after the lunch hour. The Crown in bail court announced that they would be asking for a “special bail hearing.” Counsel Jack Gemmell appeared for one of the other accused. When the presiding Justice of the Peace announced a lengthy bail hearing had been set for Mr. Gemmell’s client on January 3, 2020, Mr. Gemmell objected to any adjournment over 3 days. In his estimation, the bail would not take the full day requested by the Crown but rather one hour or an hour and a half. Mr. Gemmell stated that he had suggested dates anytime in December but the best he had been offered was the January 3, 2020 date. The Crown said he was available any day for the bail hearing.
10When asked by the Justice of the Peace whether there had been discussion with the Regional Senior Justice of the Peace to open up another courtroom, the Crown indicated that there had been discussions between the trial coordinator and the Regional Senior Justice of the Peace in order to get staff and courtrooms for the bail hearings. The Crown stated that he and a colleague would have to create a synopsis because they had been given a synopsis of 95 pages and another of 5 pages. Just reading the synopsis at the bail hearing would take some time. Distilling it down would be helpful.
11Mr. Gemmell replied that in light of this being a long-term investigation, there had been plenty of time to prepare for the bail hearing. It was unacceptable that his client, with no record, should remain in custody for almost a month before having a bail hearing. The Crown at no point expressed disagreement with this complaint. Mr. Gemmell would not consent, pursuant to Section 516 of the Code, to an adjournment past three clear days. The Crown refused to agree to an earlier date because the availability of a Justice of the Peace and a courtroom had already been fully canvassed. In the end, December 17, 2019 was preserved as an interim date but January 3, 2020 was set for the bail hearing to ensure it was not lost. Ultimately, although the circumstances are unclear, the bail hearing for Mr. Gemmell’s client was heard much earlier, on December 20, 2019.
12Raffaele Simonelli was the next accused called. Ms. Shikhman indicated that she was retained for him and had been ready to proceed with the bail hearing since the day before. The Crown, emphasizing the complexity and seriousness of the matter, including the very lengthy synopsis, again asked that the matter be set for a lengthy bail hearing on January 3, 2020. Pressed by Ms. Shikhman, the Crown said he was prepared to proceed but, given that it was already 1:20 p.m., he would not even have time to read the synopsis into the record before the end of the day. He again said that an adjournment would allow distillation of the lengthy synopsis.
13Ms. Shikhman stated that because the adjournment sought by the Crown was not for investigative purposes, she would not consent to the matter going over even for the three days permitted by Section 516 of the Criminal Code. She indicated that she had been there since 9:30 a.m. with sureties present and she was ready to proceed. If it did not go ahead, the Applicant was ready to give up his counsel of choice in order to proceed as soon as possible. The Justice of the Peace decided that January 3, 2020 should be set for the bail hearing, saying,
So Ms. Shikhman, given the seriousness of the charges, and the submissions from the Crown, clearly we would not be able to start this today, we do not have a courtroom available, this courtroom has many matters that still have to be dealt with today. And we – in addition we had the delay of people arriving – all of the defendants arriving after eleven o’clock in this building from Maplehurst today. I don’t expect it would be any different on Monday, and there is a lengthy bail hearing set - it sounds to me like the Crown will take most of the day to present evidence, is what it sounds like…
(Emphasis Added)
14Counsel James Lockyer and Aaron Prevost, each acting for two other co-accused, lent their voices to the defence protest against the long delay before a bail hearing could be held. Mr. Lockyer stated that three weeks or more was “totally unsatisfactory.” To the Crown’s argument that the case was complicated, Mr. Lockyer said that the Crowns should be able to summarize it quickly; it was not a difficult job. He was considering bringing a habeas corpus application in the Superior Court. Like other counsel, Mr. Lockyer said that his client had a family. As a consequence of the delay, he was going to be incarcerated over the holidays. Ultimately, January 6, 2020 was set for his client’s bail hearing.
15For his part, Mr. Prevost emphasized that because of the length of the investigation, there was no excuse not to be ready for the bail hearing. Again, the Crown did not register any disagreement. The bail hearing for his client was set for January 15, 2020. Lastly, counsel Robert Chartier was counsel present for Michael Simonelli. He emphasized that in Toronto when there is a large takedown, two special bail courts are set up. The Justice of the Peace said in response,
And Mr. Chartier, clearly, I would not be able to do the bail hearing today. We have a long list, we have the issue that people did not arrive from Maplehurst until, I believe, after 11:30 today. And even with other courts assisting, I’ll also say that this courthouse is busier than the courthouses in downtown Toronto, dealing with very serious offences here as well. And I can’t speak to the issue of resources other than they do not exist.
(Emphasis Added)
16Mr. Chartier client’s bail hearing date was set for January 2, 2020.
17Dissatisfied with the lengthy wait for their bail hearing, the two Simonellis filed a habeas corpus application returnable in the Brampton Superior Court on December 24, 2019. That morning, the Crown and defence counsel appeared before Madam Justice A.R. Mackay of the Ontario Court of Justice. The Crown explained that he had been served with the habeas corpus application the day before and had spoken to the trial coordinator. He learned that Justice Mackay was free. Defence counsel had checked in with the Superior Court judge who was to hear the habeas application and discovered that he had a number of emergency motions and did not have time for the application. Counsel agreed to hold the bail hearing in front of Justice Mackay.
18The bail hearing took the better part of a day. Approximately 50 pages of the 200 page transcript were consumed with the Crown reading in a new synopsis. The synopsis was given to Justice Mackay at the beginning of the hearing to allow her to follow along. It was about 35 pages long.
19Justice Mackay reserved her decision. On December 27, 2019, she released written reasons releasing both Applicants on high surety bails. Justice Mackay held that the plans for both, including house arrest and responsible sureties, were sufficient to meet secondary and tertiary ground concerns. A review application was brought by the Crown on January 21, 2020 and dismissed by Justice LeMay of the Superior Court the same day.
I. THE INTEGRITY OF THE PROCESS WAS DAMAGED BY THE SYSTEMIC DELAY WHICH OCCURRED IN THIS CASE
20The decision in this case hinges on the balancing of interests under the abuse of process jurisprudence. As put by Justice Moldaver in R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309 (S.C.C.) at para. 41 said,
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.
(Emphasis Added)
21In structuring the approach to the main issue in this case, it should be clarified at the outset that if the delay in holding this bail hearing was a one-off problem, an application for a stay could not be credibly argued. There would be two related obstacles: 1. The Applicants served a 12-day period of pre-trial custody which constituted a Charter violation and to which they ought not to have been subjected. Although the resulting prejudice was significant and violated the Charter, balanced against the very serious charges they are facing, there would be no real controversy. The strong societal interests in favour of a trial on the merits would prevail over the individual interests and the liberty of the Applicants; and 2. In addition, the abuse of process jurisprudence is primarily concerned with Charter violations and conduct that is likely to be perpetuated into the future. An isolated event would lack this critical aspect.
22This helps to properly orient this application. If of sufficient gravity, systemic problems impugning the efficiency and ultimately the integrity of the bail process may justify a stay of proceedings. With this in mind, the first subject that must be explored is the importance of early bail hearings to an accused and to the community. The analysis will then continue to examine whether there is a systemic bail problem in Brampton. It is only following these inquiries that the abuse of process case law can be applied to the factual foundation of this case.
A. THE IMPORTANCE OF EARLY BAIL HEARINGS
23The importance of pre-trial release is indisputable. The father of modern Canadian bail law, Professor Martin Friedland, agreed with a statement made by defence counsel that “the bail hearing is often the single-most important step for an accused person in the criminal process.” M. Friedland, “Criminal Justice in Canada Revisited” (2004) 48 C.LQ. 419 (online) at p. 6.
24It could be said that we are in the midst of the second age of reform when it comes to bail. The first was ushered in by the Bail Reform Act, S.C. 1970-71-72, c. 37 which Professor Friedland helped to draft. The second era is based on five important decisions of the Supreme Court of Canada beginning in 2015: R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 (S.C.C); R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509 (S.C.C.); R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250 (S.C.C.); R. v. Myers, 2019 SCC 18, 375 C.C.C. (3d) 293 (S.C.C.) and most recently R. v. Zora, 2020 SCC 14. (2020), 388 C.C.C. (3d) 1 (S.C.C.). When looked at collectively, these judgments push the law further towards responsible release of accused persons on bail and, in the process, emphasize the main principles underlying the preference for release as “the cardinal rule” in Canada: St. Cloud at paragraph 70.
25Section 11(e) of the Charter guarantees the right not to be denied bail without “just cause” and the right to bail on reasonable terms and conditions: R. c. Pearson, [1992] 3 S.C.R. 665 (S.C.C.), at para. 45; R. c. Morales, [1992] 3 S.C.R. 711 (S.C.C.), at paras. 57-58; Antic at paras. 36-37. The relationship between the right to bail and the presumption of innocence is fundamental to an understanding of Section 11(e). The presumption of innocence operates at the bail stage, although not in the same full-fledged evidentiary sense as at trial: Pearson at paras. 41, 43. Bail functions as a corollary to the presumption of innocence: Antic at para. 68. As Justice Iacobucci has said, when bail is denied, “the presumption of innocence is necessarily infringed”: R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309 (S.C.C.), in dissent at paragraph 48, but no disagreement from the majority on the point.
26Release on the lowest form of bail is the default position upon arrest as a consequence of the presumption of innocence: Morales at para. 51; Antic at paras. 4, 34. An accused, when detained before trial, loses his liberty before he or she has been found guilty. For this reason, a decision to detain prior to trial is not a step to be taken without great care and caution. In practical terms, pre-trial detention is a concession to values which may, depending on the particular circumstances, be of superordinate importance over the presumption of innocence. These opposing values are found in the primary, secondary and tertiary grounds of bail in Section 515(10) of the Code. However, the presumption of innocence remains a constant, constitutionally entrenched counterweight and, at any given time, may outweigh the three grounds of detention and dictate release from custody: R v Jaser, 2020 ONCA 606 at paras. 52-53; R. v. Saracino, [1989] O.J. No. 28 (Ont. H.C.) at para. 14
27Justice Iacobucci wrote in his dissent in Hall (approved of by the majority of the Court in Toronto Star Newspapers Ltd. v. R., 2010 SCC 21, [2010] 1 S.C.R. 721 (S.C.C.) at para. 51),
47 At the heart of a free and democratic society is the liberty of its subjects. Liberty lost is never regained and can never be fully compensated for; therefore, where the potential exists for 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.
28Liberty is a well-spring of individual protections under our law and is explicitly entrenched in Section 7 of the Charter: Pearson at paras. 32, 35. Section 11(e) is an expression of the right to liberty and the presumption of innocence at the pre-trial stage of bail: Antic at para. 1. Besides the deprivation of physical liberty, pre-trial detention has long been recognized to have other significant detrimental effects on an accused person.
29The Supreme Court has accepted that half the inmates in provincial jails are on remand and are subject to dire conditions including overcrowding and have no access to recreation, basic programming or proper health care. The mental, social and physical life of both the accused and their family are adversely affected by detention. Employment and income are impacted as are housing, health and access to medication, relationships, personal possessions and ability to fulfill parental obligations. The loss of a sense of well being from detention can affect the trial itself and may well exert pressure on an accused to plead guilty in order to be released as soon as possible. It has been acknowledged for many years that it is more difficult to mount a defence if in custody. Those incarcerated before trial have a higher incidence of being found guilty than do those at liberty: Antic at 66, Myers paras. 22, 27, Zora at paras. 64, 104, Toronto Star Newspapers at para. 11, Friedland, Detention before Trial, at p. 172.
30Every facet of an accused’s life is profoundly effected by pre-trial detention. It is inconvertible that the entitlement to bail release when appropriate is fundamental to criminal justice. The principles applicable to bail developed by the courts over the years are, however, of little consequence unless bail is decided promptly following arrest. Expeditious hearing of bails is a first order of priority. In the hierarchy of judicial hearings, a bail hearing must be the first in line, ahead even of trials. The pertinent jurisprudence and the directives in the Criminal Code are unequivocal on the subject.
31As was said in Antic at para. 67d,
… ‘release is favoured at the earliest reasonable opportunity and, having regard to the [statutory criteria for detention], on the least onerous grounds’ … This principle must be adhered to strictly.
32Both the early commencement and efficient conduct of the bail hearing are geared towards expeditious determination of the bail question. The Supreme Court in Toronto Star Newspapers focussed on the Ouimet Report, the Canadian Committee on Corrections “Toward Unity: Criminal Justice and Corrections (1969)—the report which not long afterwards was enacted into law in the Bail Reform Act: Toronto Star Newspapers at para. 10-13. At paragraph 11, the Supreme Court said,
…the initial period after an arrest is determinative. Pre-trial incarceration could lead to loss of employment and make it impossible for accused persons to fulfill their family obligations, thereby weakening their family and social ties.
33The Bail Reform Act in adopting the Ouimet Report recommendations brought in two key provisions to the Criminal Code to guarantee early bail hearings. First, with respect to the commencement of a bail hearing, Section 503(1)(a) of the Criminal Code requires a police officer to take an arrestee before a justice “without unreasonable delay” and in any case, within 24 hours. Read literally, this does not say that a bail hearing must take place within 24 hours of arrest. In practice, however, the 24-hour limitation functions as a presumptive deadline for the holding of bail hearings. As the Court of Appeal has held, “compliance [with the section] is not simply a matter of form”: R. v. Poirier, 2016 ONCA 582 (Ont.C.A.) at paras. 57-58, also see R. v. Carter, 2016 ONSC 2832 (Ont.S.C) at para. 33. The operative words in Section 503 are “without unreasonable delay.” The reference to 24 hours simply establishes the outer limit: R. v. W. (E.), 2002 NFCA 49, 168 C.C.C. (3d) 38 (Nfld. C.A.) at para. 14.
34The other statutory element to be read with Section 503 is Section 516 of the Code, raised by several counsel in the December 13, 2019 proceeding. This provision prevents an adjournment of a bail hearing for more than three clear days, except with the consent of the accused. The Court of Appeal has said that the Crown does not have an absolute right to an adjournment of bail, even for less that three days, unless there is a good faith basis informed by the requirement for just cause: R. v. Donnelly 2016 ONCA 988 (Ont.C.A.) at para 80. In practice, the 3 clear days rule is not always adhered to. It was not in this case or most of the other cases surveyed by the defence and to be discussed in detail below. And when it is not, the accused remains in custody and defence counsel have few if any effective options at their disposal to remedy the violation of Section 516.
35The short period permitted between arrest and a bail hearing was emphasized by the Supreme Court not only in Toronto Star Newspapers Ltd, at paragraph 27 but more recently in Zora at paragraph 78. Commenting on the emphasis on the urgency of holding bail hearings, Justice Wagner, as he then was, said in St. Cloud,
109 This conscious choice to expedite the release hearing is grounded in the importance our society attaches to the presumption of innocence and the right of individuals to liberty even when charged with a serious criminal offence.
36The decision of the Ontario Court of Appeal in Zarinchang is of particular importance in this application both on the question of timely bail hearings and the remedy of a stay for abuse of process as a consequence for systemic delays in the bail hearing process. There was a lengthy delay before a bail hearing was held in that case, later found by the trial judge to be systemic in origin. For the time being it is sufficient to refer to the Court of Appeal’s comment with respect to bail hearing delays:
38 In a speech to the Criminal Lawyers’ Association on November 28, 2009, our colleague, Justice Marc Rosenberg, referred to Professor Friedland’s 1965 report on the bail system in Toronto. Professor Friedland said that “the law should abhor any unnecessary deprivation of liberty and positive steps should be taken to ensure that detention before trial is kept to a minimum.”
39 Unreasonably prolonged custody awaiting a bail hearing gives rise to a breach of s. 11(e) of the Charter: see, for example, R. v. Villota, 163 C.C.C. (3d) 507 (Ont. S.C.J.).
37The Villota case referred to in Zarinchang is an important early case on bail delays. It arose out of our jurisdiction in Brampton. As early as 2002, Justice Casey Hill was critical of bail adjournments going beyond the statutory limits,
66 Where a person, arrested and detained for a bail hearing, is taken before the court within twenty-four hours of arrest (Code s. 503(1)), and the prosecution and the accused are prepared for a show cause hearing, a hearing should forthwith be held whenever possible. In a jurisdiction such as this, serving a population of nearly one million persons, bail courts run seven days a week. An arrested person should not face the prospect of having to, in effect, make an appointment for his or her bail hearing. Unjustified detention includes unreasonably prolonged custody awaiting a bail hearing...
67 The routine adjournment of bail hearings other than at the request of the prosecutor or the accused (Code s. 516(1)), as "not reached" cases, is an entirely unacceptable threat to constitutional rights, a denial of access to justice, and an unnecessary cost to the court system: The Law of Bail in Canada, supra at 199; Report of the Criminal Justice Review Committee, supra at 13-14. We must remain vigilant not to lapse back into the pre-Charter regime described in 1965 in the Report of the Royal Commission Into Civil Rights (the McRuer Report), Vol. 2, page 743:
There appears to be a widespread indifference to the injustice done to accused persons by reason of unnecessary incarceration pending arraignment.
(Emphasis Added)
38This was one of the first warnings of the inadequate attention being paid to holding bail hearings with reasonable dispatch. Justice McMahon, one of the most experienced Ontario judges in criminal law, said 10 years later in R. v. Elbadri, [2011] O.J. No. 6123 (Ont. S.C.),
8 It is obvious under our criminal law, a person charged with offences, even exceptionally serious offences, is entitled to have their bail hearing in a timely fashion even if the case is complex, difficult or will take time for a bail hearing to be conducted. I recognize at the outset that there are tremendous pressures on the Ontario Court of Justice. It suffers from a heavy case load and limited judicial and court resources. Saying that, the lack of resources cannot trump the accused's right to have a timely bail hearing. (See R. v. Zarinchang 2010 ONCA 286, [2010] O.J. No. 1548 Ontario Court of Appeal. See also R. v. Brown 2009 ONCA 633, [2009] O.J. No. 3592, again, Ontario Court of Appeal)
9 … I find that it is unacceptable that an accused must wait 12 days to have a bail hearing when they are presumed innocent. It breaches the accused's Charter of Rights and I find would bring the administration of justice into disrepute. The resources must be found to ensure timely bail hearings.
39Finally, Justice Trotter has written in his book, “[w]ith 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”: “The Law of Bail in Canada” (3rd ed, 2017) (online) at Section 5.3(a).
40In summary, the authorities establish that the necessity of holding a bail hearing immediately following arrest and detention is a matter of constitutional magnitude. An accused’s liberty and the presumption of innocence are at stake. When a bail hearing is delayed because of lack of resources or inefficient use of resources, the accused is denied bail without “just cause” contrary to Section 11(e). These are fundamental values at the very centre of criminal justice.
B. THERE HAVE BEEN SYSTEMIC DELAYS IN HOLDING PROMPT BAIL HEARINGS IN ONTARIO
41In Set Up to Fail: Bail and the Revolving Door of Pre-trial Detention, Canadian Civil Liberties Association and Education Trust, by A. Deshman and N. Myers (2014) (online), a report heavily relied upon by the Supreme Court in Zora (see paras. 57, 62, 76, 78, and 79) the authors in commenting on the unacceptable growth of the remand population say at p. 8,
…[it] is not so much a function of more people being denied bail; rather, it is the result of more people being held for a bail hearing and the bail decision taking longer to be made. This means that not only are more people being detained after being charged, but they are spending a longer period of time in remand custody.
42Later in the report, the authors examine bails in Ontario at p. 32,
The continuing situation in Ontario merits particular attention, as a number of cases have recognized and condemned the systemic delays in the bail system.
43The authors then proceed to examine several bail delay cases: Vilotta, Zarinchang, and R. v. Jevons, 2008 ONCJ 559 (Ont. C.J.). The authors also interviewed justice system participants and made in-court observations. They noted a substantial percentage of bail cases not reached because the court ran out of time. While noting several initiatives that were being looked at, the authors conclude that “Given the long-standing, systemic nature of the issues, more emphasis on concrete action is necessary.” (p. 34) The report recommends (p. 34),
Recommendation 3.5: The Ontario government must take immediate and concrete steps to end ongoing unconstitutional adjournments in bail court. As a starting point, policies should ensure that the courts have the resources to remain open until individuals who are ready to have their bail hearing have been addressed.
44There is no indication this has been implemented. With respect to the Brampton case of Vilotta, the report refers to the affidavit detailing systemic delays filed in that case by the Peel Criminal Lawyers’ Association. The affidavit found that congestion and protracted hearings lead regularly to bail hearings not being reached. The Set up to Fail report agreed with Justice Hill that this was an unacceptable threat to constitutional rights (p. 32).
45Reports prepared on behalf of the federal government reach the same conclusion with respect to chronic delays in having bails heard. “Delaying Justice is Denying Justice: An Urgent Need to Address Lengthy Court Delays in Canada (June 2017) (online) by the Standing Committee on Legal and Constitutional Affairs, also relied upon by the Supreme Court in Zora (at para. 48), recommended that delays in bail hearings must be addressed (at pp. 132-139). In Research in Brief: Assessments and Analyses of Canada’s Bail System, Department of Justice, Research and Statistics Division, (2018) (relied on in Zora, at para. 76) it is stated at p. 1 that “Bail Problems are a National Issue”, calling for national leadership and a co-ordinated approach across the country. The report states at p. 2, “… bail observations in Canada have illustrated how bail usually takes more than one appearance, contributing to delay and efficiency concerns in Canada’s criminal courts.”
46Looking at some of the case law not yet discussed, R. v. Brown [2007] O.J. No. 2830 (Ont. S.C.) warned about the destructive effects of unreasonable delay in holding bail hearings. In that case, after a sweeping investigation by the Toronto police, 100 people were arrested in the early morning hours of June 13, 2007. The Applicants’ were given bail hearing dates in the first two weeks of July, almost a full month away. They brought applications for habeas corpus to challenge the delays. After finding a violation of the 24-hour rule in Section 503 of the Code, Justice Nordheimer, as he then was, said,
9 … the clear spirit and intent of these two sections of the Criminal Code [Section 503 and 516] is to ensure that a person who is arrested has the ability, at the earliest possible opportunity, to have a judicial officer review their detention and determine if the continuation of that detention is warranted. There can be no debate that any person who is arrested is entitled to prompt and early determination as to the legitimacy and necessity of their detention.
11 … [C]ourts have consistency pointed out that these provisions are among the most important provisions in the Criminal Code. For example, in R. v. Simpson, 88 C.C.C. (3d) 377 (Nfld. C.A.) Chief Justice Goodridge said, page 386:
"Section 503 may be one of the most important procedural provisions of the Criminal Code. The liberty of the subject is dominant. A person not convicted of an offence should never be held in custody except in accordance with constitutionally valid provisions of the Criminal Code or other legislation."
12 In my view, what has occurred to date in this case is improper and it is unacceptable. Regardless of the nature of the charges and the circumstances surrounding them, each of these applicants was entitled to have their rights respected and to be accorded the safeguards provided by our law.
(Emphasis Added)
47In a part of the reasons particularly germane to the case at hand, Justice Nordheimer criticized the system for not being prepared well in advance to conduct bail hearings for the large number of individuals being arrested in that case (see paras. 16-21). In the end, Justice Nordheimer found a violation of the Charter and ordered that the bail hearings be expedited. The Crown was required to bear the costs of the habeas corpus applications.
48A Crown appeal against the costs award was dismissed by the Court of Appeal: R. v. Brown, 2009 ONCA 633, [2009] O.J. No. 3592 (Ont. C.A.). Justice Sharpe supported each and every finding made by Justice Nordheimer, including the conclusion that the situation was “improper and unacceptable” and that the cause was the failure of the Crown to make arrangements for the massive intake of detained persons. Justice Nordheimer’s costs award was affirmed on the basis “of a systemic failure on the part of the prosecution to respect both the statutory and Charter rights of the respondents” (see paras. 21-23).
49In R. v. Whyte [2008] O.J. No. 4537 (Ont. S.C.), a Brampton case, Justice Durno dismissed a habeas corpus application for costs based on a bail delay of 29 days. The clerk in court had obtained the date from the trial coordinator. The circumstances of the setting of the bail 29 days into the future were unusual. The inexperienced per diem Crown, the defence lawyer and the Justice of the Peace were all unfamiliar with the 3 clear day requirement in Section 516 of the Code. Although an earlier date could almost certainly have been obtained by a request of the trial coordinator, Justice Durno was of the view that this ought not to be required in order for a prompt bail hearing to be held. He was highly critical of the participants for setting the date 29 days in advance, saying of the Crown that “fundamental principles and rights cannot be ignored.” Nonetheless, it was a relevant consideration on the costs issue that no request for an earlier date was made. Ultimately, a date for the bail was moved forward to 13 days after arrest. In Whyte, no attempt was made to show that the delay was systemic in nature. The costs application was dismissed.
50Whyte, although 13 years old, is an example of a case in which, at least initially, acceptable dates for a special bail hearing were not made available in our jurisdiction. It should go without saying that a delay of 29 days is completely unsatisfactory.
51In Jevons, Justice De Filippis sitting in Central East Region stayed charges of criminal harassment and unlawfully in a dwelling house arising out of a domestic related situation. There was a delay of 7 days between the arrest and the bail hearing. No court had been available for the bail hearing. Justice De Filippis concluded,
[29] As indicated, the Defendant has persuaded me that the delay in his case is not an aberration but linked to systemic issues with respect to the bail courts in Durham Region. There are several factors that contribute to the problem; facilities, the practices of the Crown and some Justices of the Peace with respect to sureties, the historical reluctance of Judges to assist with contested bail hearings, the inability or unwillingness of Defence lawyers to always be available at the bail courts. However, the basic problem is the, for too long, the resources for the bail courts have been insufficient.
(Emphasis Added)
52In staying the charges for abuse of process, Justice De Filippis said,
40 … What occurred … is an affront to the administration of justice and shocks the conscience of the community. This is one of those rare cases in the residual category described in Arcand. Notwithstanding several appearances over a period of eight days, the Defendant remained in custody because the Court was too overburdened to do anything other than repeatedly remand him. Significantly, this was not an isolated problem. The lack of institutional resources had been a problem for at least one year. There is no doubt that other accused persons were also adversely affected. I am confident that Canadians would be offended by this state of affairs. To allow this prosecution to proceed would undermine public confidence in the judiciary. In these circumstances, the only appropriate remedy is to stay the proceedings.
(Emphasis Added)
53Moving on to Zarinchang, the bail delay in that case was 24 days from the time of arrest to the bail hearing. The trial judge stayed the proceedings but the Court of Appeal sent the matter back for a retrial because the trial judge had failed to balance the seriousness of the charges against the nature and impact of the Charter violation. In their findings, the Court of Appeal agreed that Section 516 of the Code and Section 11(e) of the Charter had been breached by the bail delay: see para. 39. The court concurred with the following description of the systemic nature of the problem made by the trial judge at para. 24,
When the breach of the applicant’s rights here are considered, it can only be described as serious and flagrant, those responsible have effectively ignored the impending reality and disaster that was afoot. Individuals have been allowed to languish in custody awaiting show cause hearings. The serious nature of this matter could only be remedied by the most significant remedy available, that being a stay of the charges.
54In R. v. S.(B.) 2014 ONCA 527, (2004) 121 O.R. (3d) 145 (Ont. C.A.), the delay in the commencement of the young person’s bail hearing was 12 days. The trial judge found a Charter breach, but in light of the seriousness of the firearms charge against the accused, held that the public interest tipped the balance towards continuing the prosecution against him. Justice Rosenberg, dismissing the appeal for the court, held that the delay before the bail hearing began was unacceptable and a Charter breach. There was a routine practice or protocol to adjourn bail hearings in every case that would last longer than two hours. This was offensive to fair play and decency: see para. 20.
55Justice Rosenberg concluded, however, that it was open for the trial judge to give significant weight in the balancing process to the seriousness of the charges (see para. 17). The Crown at trial had argued that the delay was a one-time problem and the trial judge had found that the delay was not systemic in nature. The delay appeared to be an isolated event. The defence appeal was dismissed.
56Lastly, the Manitoba Court of Queens Bench recently released a judgment severely critical of bail delays in the northern part of that province: R. v. Balfour, 2019 MBQB 167 (Man.Q.B.). The two matters before the court had already been disposed of and a stay was therefore not available. One delay was three weeks, the other was 7 weeks. Costs were ordered. Justice Martin found that there was a long-standing and glaring systemic problem. The breaches were predictable and were arguably institutionalized by court policy.
C. THERE IS A SYSTEMIC PROBLEM IN HOLDING PROMPT BAIL HEARINGS IN BRAMPTON
57The case law and reports reviewed above establish that there have been systemic problems with having bails heard promptly in Ontario. More specific to this case, as conceded by Mr. Kingdon, there is a systemic problem in getting special bails heard in Brampton. The only issue is the extent and seriousness of the problem. In my view, the jurisprudence, the survey the Applicants have conducted with respect to calendar year 2019 in Brampton and a Crown memo from October 5, 2020 establish a serious and long-standing problem in scheduling prompt special bail hearings.
i. THE SURVEY OF SPECIAL BAIL HEARINGS IN 2019
58Ms. Shikhman retained a court transcriptionist by the name of Dalton Wells to examine bail hearings in 2019. Transcripts were ordered of 60 bail hearing days randomly selected, approximately 5 days per month. Listening to the tapes, Mr. Wells was asked to determine the cases in which special bail hearings were discussed and, once identified, to prepare a transcript of the set date proceeding. All in all, 26 special bail hearing set dates were transcribed. The delays in hearing special bails ranged from 5 days at the low end to 35 days at the high end. The average delay was approximately 13 days. Not a single special bail hearing was conducted within the 3-day clear notice required by Section 516 of the Code. In addition, a number of the transcripts, like the one in this case, attest to a good deal of congestion in the bail court: see e.g. the Belanger and Anestin cases referenced in the Applicants’ record.
59Professor Friedland in his 2004 article at page 6 noted that Justice Casey Hill had obtained 2003 statistics which showed that the average delay in Ontario between arrest and a bail hearing was 12 days, essentially equivalent to the average length of the delay in this case.
60Mr. Kingdon had no significant methodological concerns, with one exception to be analyzed later, concerning Mr. Wells’ work and its use to demonstrate a systemic problem in bail hearings being heard. He conceded that there was a systemic problem but as previously mentioned resisted any suggestion that it has been shown to have commenced before 2019.
61Mr. Kingdon agreed that the 12-day delay in the case at hand was a Charter violation based purely on the waiting time. It was his position that there was no possible argument to the contrary. He did not specify what he believed was the permissible delay before a Charter breach could be said to have occurred although it was implicit that the delay here was well over the line.
62Therefore, based on this concession, it stands to reason that most of the 26 cases transcribed by Mr. Wells were constituted Charter violations. The average delay of 13 days itself is over the line and constitutes a Charter violation.
63The special bail hearing process works this way. When a bail hearing is expected to be more than two hours, Crown and defence counsel fill out a form entitled: “Request for Lengthy Bail Hearings: Matters of two hours or more that cannot be accommodated within regularly scheduled bail courts.” The form requires Crown and defence counsel to list their available dates for hearing, a procedure reminiscent of Section 11(b) unreasonable trial delay protocols. From the record in this case, it is the Crown who decides when a bail hearing is going to take more than two hours and should be scheduled for a special hearing. For example, on December 13, 2019, when Mr. Gemmell said the bail hearing for his client would be short, the Crown’s contrary position was accepted by the Justice of the Peace without further argument.
64A practice direction dated January 15, 2020 was enacted to require use of the same form as used in Brampton across the province. There are also detailed steps that must be taken, including obtaining direction from the justice of the peace, attendance before the trial co-ordinator to fill out the form and then return to court to set the date.
65It may be helpful to set out a few illustrations of the 2019 scheduling delays tracked by the Applicants. Beginning chronologically at the oldest case, a case called McInnis, defence counsel appeared Thursday January 17, 2019 and said that although they were available Tuesday January 22, 2019, the first date offered was January 30, 2020. The justice of the peace did not question this delay and set this date for the hearing. The Applicants say that this delay is 13 days. I agree. No court was available to hear the matter between the first appearance and January 30, 2019.
66In Robichaud, involving firearms charges, the appearance was on February 5, 2019. The form indicates it was a 4-hour hearing with two sureties. A previously scheduled date of February 14, 2019 had to be vacated. The defence said they were available February 19 but then not again until the 26th of February. The form says the court offered February 21 and 22nd. February 26th was set. The Applicants say that the delay then was between February 5, 2019 and February 21, 2019: 16 days. That appears correct.
67The Vecauther matter, again dealing with firearms charges, was up March 5, 2019 and a two-day hearing was set for March 18, 2019. Counsel were not available before this date. The same trial co-ordinator as the Robichand matter did not note that there were earlier dates available as she did on the Robichand form. The delay is therefore 13 days.
68The robbery case of Hylton expected to be 2-3 hours was up March 18, 2019 and a bail hearing was set for March 27, 2019, 9 days away. Although both Crown and defence were available March 25, 2019, the court could not accommodate them. The delay to Hylton was only 2 days but the court could not accommodate the hearing for 9 days.
69Mr. Kingdon disagrees with one aspect of the defence approach. It can be illustrated by the Hylton case. Mr. Kingdon says that the operative delay in that case is between when defence counsel was ready and when the court was available. In Hylton therefore, the “net delay” was only two days. Mr. Kingdon concedes that even under his approach with lower numbers for some cases, there are still “egregious” instances of delay going into the double-digits in the tracking of the 2019 bails. The other cases with shorter delays are still far from ideal.
70I do not agree with this “net-delay” argument. The key point for this application is that the 9-day delay in Hylton was as a result of delays attributable to the system in providing bail hearings. The defence lack of readiness is secondary. The defence in no way caused the 9-day delay; the delay was because the court was unavailable: see by analogy R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 (S.C.C.) at para. 64. The defence are not required “to hold themselves in a state of perpetual availability.”: Zarinchang at para. 43 quoting from R. v. Godin, 2009 SCC 26, 245 C.C.C. (3d) 271 (S.C.C.) at para. 23. It could be argued if this was Hylton’s application, that the prejudice to him was only two days. But for the purposes here, what is salient is the inability of the system to provide a bail hearing for a period of 9 days.
71I do not intend to go through the other 2019 cases. All were summarized in the Applicant’s factum, with the transcripts of all attached. Having read them, the evidence of unacceptable delays in setting special bail hearing dates permeates the vast majority. The chart prepared by the defence listing the different cases is attached as Appendix A. The list also includes Justice Durno’s Whyte case from 2008.
72There are two references in the Applicants’ survey to special bails set in 2020. The Crown did not challenge these accounts. In one, Alex Alton, a lawyer at the firm of Brauti Thorning attests in his affidavit to a case of his in which the client was arrested on August 22, 2020 and the closest special bail date available from the trial co-ordinator was September 9 or 10, 2020, a delay of more than two weeks. Another case from the same time period is similar. An assistant to defence counsel Leo Adler states that a request was made for the first available special bail on August 24, 2020. The dates provided were September 8 or September 10, 2020. These were the only two 2020 cases put forward and of course they took place during the pandemic. But the delays are similar to those delays evident in calendar year 2019. And, importantly, the Crown October 5, 2020 memo to be discussed below supports the persistence of the bail delay problem up to the present time.
73There is one other aspect that should be commented on. There were several cases reviewed by the Applicants which were heard more promptly than originally expected. The case at hand is one example. Eventually, in this case, the Crown who was present on the December 13, 2019 set date did obtain a closer date but only when a habeas corpus application was minutes from being argued. With respect to Mr. Gemmell’s client, she had her bail hearing on December 20, 2019, not January 3, 2020 as originally scheduled. There are other examples in which closer dates were obtained. A constant struggle to provide closer dates is a common theme.
74Although this demonstrates that the system and administrators were making real efforts to shorten the bail delays, it also raises a concern that the system may not have been doing its utmost at the outset to make every effort to provide the best dates. The evidence is only anecdotal and no definitive conclusions can be made. But if true, this is disconcerting. Bails take precedence over other judicial proceedings. A Crown at a bail set date where the hearing is set many days if not weeks ahead is witness to a Charter breach. One would expect efforts to be made to move heaven and earth to provide the best date from the outset and avoid a Charter violation.
75Lastly, on May 11, 2020, after COVID appeared, another practice direction was issued by the Ontario Court of Justice. There is a detailed protocol with respect to “special bail hearings”, bail hearings expected to be more than two hours. It is said that they are expected to proceed based primarily on a written record. A bail hearing conference is called for to plan for the conduct of the hearing. It is stipulated that the Crown and defence should file written materials ahead of time including to be filed by Crown: the information, synopsis, criminal record, relevant witness statements, and an outline of the Crown concerns with respect the three grounds for detention. The defence is to file a detailed release plan, and surety declarations.
76There was no evidence put before the court to indicate that these measures, aimed at reducing the duration of bail hearings, have yet had any effect. Nor did Mr. Kingdon rely to any significant degree on improvements this practice direction or the January 2020 practice direction could bring about which would weigh to any measurable degree against a stay. However, it is reasonably clear that the general concept of this practice direction is encouraging. If it is followed, it will inevitably have some impact in condensing special bail hearings. But it is at best only part of the solution.
ii. THE CROWN MEMO OF OCTOBER 5, 2020
77The Crown’s factum states, in reference to this memo (at para. 12): “The Crown Attorney’s Office for the Region of Peel is conscious of ongoing challenges concerning the timely scheduling of lengthy bail hearings in the Brampton courthouse.” Similarly, in oral submissions, Mr. Kingdon acknowledged that the delay the Applicants experienced in having their bail hearings heard in a timely manner was not an anomaly within the 2019 time frame.
78If there could be any doubt that there is a major systemic problem in scheduling lengthy bail hearings, it was dispelled by this memo of October 5, 2020. It is entitled “The Setting of Lengthy Bail Hearings, Administrative Issue.” It was written by the Crown Attorney for Peel, Darilynn Allison, and is addressed to the Local Administration Judge His Honour P. Monahan and the local Administrative Justice of the Peace, Her Worship S. Burton. The date of the memo, October 5, 2020, was after leave was granted to bring the present application. It was, however, before full argument was made on November 23, 2020. This case was not mentioned in the memo.
79In summary, the memo suggests an amendment to the Request for Lengthy/Special Bail Hearing form to address delays in hearing bails and also recommends that the justices of the peace address on the record in court, consent to adjourn bail hearings beyond the three days permitted by Section 516, However, the key takeaway from the memo for this application is the acknowledgement of significant and persistent systemic problems in scheduling special bail hearings in Brampton.
80The memo begins with these words,
I am concerned with the scheduling of lengthy bail hearings at the Peel courthouse.
The specific concern of the Peel Crown Attorneys’ office is the delay in scheduling these hearings beyond the 3 day remand allowed in the Criminal Code of Canada without the explicit consent of the defence.
(Emphasis Added)
81After quoting Justice Hill’s caution from Vilotta that an accused person should not have to set an appointment for a bail hearing, Ms. Allison continues,
However, because of the volume and resourcing issues, this is precisely what is taking place on a near-daily basis in the bail courts. Hearing dates are being set that would require an adjournment which would be per se unlawful without the consent of the accused, which is neither sought nor given.
This issue has been the subject of past litigation both here in Brampton and elsewhere before Judges of the Superior Court and the Ontario Court of Appeal. Those courts have condemned the current practice where it has led to delays in holding a prompt bail hearing. Remedies, including costs against the Crown, have been ordered and upheld on appeal, yet the practice of requiring lengthy adjournments to schedule bail hearings persists.
(Emphasis Added)
82After discussing the case law, including Vilotta, Brown, Whyte, Zarinchang and S.(B.), Ms. Allison concludes:
Where the Crown is granted a 3 day adjournment as per R. v. Williams, 2019 ONSC 350, the cases cited above establish that an accused is entitled to a bail hearing as soon as he or she is ready to have one. A further delay of several days due to the trial coordinator’s office being unable to offer an earlier date may be a violation of the accused’s rights under the Criminal Code and s. 11(e) of the Charter. A lack of resources cannot be cited as an explanation for a delay; as Nordheimer J. wrote in Brown, “a lack of institutional resources being directed to the justice system cannot be relied upon as a reason not to respect constitutional rights.”
(Emphasis Added)
83The memo suggests that the special bail hearing form be amended to indicate that “The court relies on counsel for the accused to raise any issues arising from the scheduling of lengthy bail hearings.” The proposal then specifically suggests that the accused should raise the matter with the trial co-ordinator, the presiding justice of the peace and contact Local Administrative Justice of the Peace Burton. Similarly, although noting that Ms. Allison would not presume to suggest wording to be used in court by justices of the peace, it is noted that an adjournment beyond three days requires the accused’s consent under Section 516. If the accused is not consenting, “it may be prudent that before the accused return that counsel and the crown be directed [by the Justice of the Peace] to approach the trial coordinator’s office in an effort to obtain earlier dates.” There was no indication at this hearing of any actual changes in practice brought about by the memo in the month and a half between when it was written and the argument in this case.
84The efforts by the Crown Attorney, albeit in the wake of the filing of this application, to candidly acknowledge the systemic nature of the bail delay problem is admirable. In addition, her effort to suggest measures to tackle the current dysfunction is to be applauded. It bears mentioning, however, that given the position in the case law that the state is wholly responsible in making available prompt and timely bail hearings, the efficacy of these measures is questionable. For example, the Court of Appeal in Zarinchang, quoting from para. 66 of Vilotta reproduced above, stated the correct legal conclusion (at para. 44),
The Crown’s position also fails to recognize the right of an accused to a prompt bail hearing and the responsibility of the Crown to see that it happens.
85In fact, in a passage quoted by Ms. Allison in the memo reproduced above, Justice Nordheimer in Brown said that insufficient institutional resources could not justify a denial of rights (para. 22). Furthermore, the placing of the onus on the accused to obtain closer dates was specifically rejected by Justice Durno in Whyte at para. 32.
86An analogy can be made to the unreasonable delay of trial case out of Peel, R. v. Askov et al., [1990] S.C.J. No. 106, 2 SCR 1199 (S.C.C.) at paras. 103-107. If there is no realistic choice to choose an earlier date, acquiescence to the inevitable cannot relieve the system of its fundamental responsibility to provide resources to ensure that bail hearings are held. One would hope that the system, presided over by justices of the peace or trial coordinators, will as a matter of course provide the earliest possible dates for a special bail hearing. The best date should not go to the lawyer who complains the loudest and with the most persistence.
87In summary, the memo is not unlike the circumstance in Zarinchang where the establishment of a committee in Central East to study the issue of bail delays was key evidence leading to the Court’s conclusion that there was a very significant, long standing systemic problem in that region (see paras. 46, 71).
88The following then is a summary of the facts culled from the Crown October 5, 2020 memo current to that date: i. There is a problem with the scheduling of special bails at the Peel courthouse in Brampton; ii. Delays occur in scheduling bail hearings beyond the three days permitted by Section 516 of the Criminal Code; iii. Special bail hearings are being scheduled beyond the three-day maximum period without consent from the accused being requested or being given. This may constitute a Charter violation; and iv. The practice persists of lengthy adjournments and delays to schedule special bail hearings.
89Mr. Kingdon’s position was that the memo and the Applicant’s survey of 2019 were incapable of showing the problem existed before the 2019 calendar year. I cannot agree. It can be inferred from the fact that it was felt the memo was necessary and the tone and content of it that the problems described were not of recent origin. The Court of Appeal at para. 71 of Zarinchang said, “…, the systemic problem of delay was recognized in York Region for some time — at least a year and no doubt for some time before the regional Crown Attorney found it necessary to appoint a committee to study the matter” (Emphasis Added). There is no indication that the problem in Brampton referred to in the memo had recently cropped up or that it was caused by special circumstances.
90Furthermore, the nature of the problem itself is such that it is unlikely to have come out of nowhere with no advance warning. Faced with the evidence garnered by the Applicants and the warning provided in their own memo, the Crown could have adduced evidence to demonstrate the problem was a momentary one, if this was true. But there was nothing in evidence or argument which tended to support such a conclusion. For these reasons, I reject the Crown submission that the problem in holding timely bail hearing only surrounds the 2019 time period.
91In Zarinchang, the Court of Appeal found there was “more than sufficient evidence” to show systemic delay, including the date actually set and statements by the Justice of the Peace about the congested bail hearing system. There was in addition the striking of the committee to study the problem and the trial judge’s finding that compared with other jurisdictions like Toronto, York Region had fewer bail courts: paras. 45-46. In the case at hand, the evidence is at least as strong. The Applicants’ 2019 survey, the Crown memo and the circumstances revealed by the December 13, 2019 appearance to set a date, in the absence of any contrary evidence, establishes beyond any question a long-term systemic delay issue. Although I believe that the delay problem has been going on for much longer than a year, it should be mentioned that a problem of this nature continuing for a year is serious in and of itself.
92Finally, the observations derived from the Crown memo are to some degree confirmed by a letter dated January 9, 2020 (just after the December 24, 2019 bail hearing in this case) from the Criminal Lawyers Association to the Associate Chief Justice of the Ontario Court of Justice and Co-Ordinator of Justices of the Peace. This letter was part of the Applicants’ record. In it, three members of the executive of that body express concern with respect to special bail hearings taking place in Brampton, London Thunder Bay and other jurisdictions in Ontario. The authors were concerned that the January 15, 2020 practice direction about to come into force would create a “standardized, Province-wide protocol [which] will effectively institutionalize the practice of adjourning presumptively innocent people in custody well beyond both statutory and constitutional time limits.” The letter goes on,
In our experience, these [special] bail hearings are not given the immediate attention they are due, as the accused’s right to bail is seemingly placed last in a long list of administrative considerations, including the availability of court rooms, court staff, Justices, red-flag Crown Attorneys, and police officers. It is not uncommon to be “offered” dates that are weeks - sometimes even a month or more - after the first date that the accused is brought before the court.
93The problem, the letter states, is related to “long-standing and glaring systemic issues.” Several partial solutions are proposed such as having a Justice of the Peace determine whether the Crown’s request for a special bail hearing—one requiring more than 2 hours—is reasonable, limiting the time the Crown ought to have to read in the allegations at the hearing, and ensuring that with respect to planned takedown arrests, bail packages should be prepared in advance. It is argued that without changes being made, defendants may seek constitutional remedies, further taxing scarce resources, which may have significant merit.
II. THE BAIL HEARING IN THIS CASE
94Before applying the abuse of process law, there are several comments which ought to be made about the bail hearing in this case. First, this is a carbon copy of the situation in Brown in which a major takedown was scheduled but, at least on this record, there appears to have been no arrangements made by to alert the courts to an impending major influx of detained accused people. There were approximately 27 individuals arrested and, on December 12, 2019, 5 accused including the Applicants made their first appearance in bail court with reference to this branch of the prosecution. The police, despite having ample time to prepare the paperwork necessary for the Crown and defence to conduct a bail hearing, had put together a 95-page synopsis.
95I agree with the complaints made by the lawyers at the time. A 95-page synopsis is not only cumbersome—it is of little real assistance in the conduct of a bail hearing. A synopsis should have been prepared of manageable length which could be absorbed without protracted study. This would greatly facilitate and compress the hearing itself. Justice Durno suggested this step in R. v. Downey, [2018] O.J. No. 6133 (Ont. S.C.J.) at para. 24 and it is also included in the new bail practice direction of May 11, 2020. Even better, an executive summary including the nature of the charges, the evidence supporting the charges and the accused’s criminal record, if any, with an eye to highlighting the strength or weakness of the case and the three grounds for detention, would further expedite bails.
96The police have an onerous statutory and common law obligation with respect to bail that, judging from the sheer length of the synopsis, was not complied with in this case: Section 493.1 of the Criminal Code; R. v. Al-Adhami, 2020 ONSC 6421 (Ont.S.C.) at paras. 46, 53-57. Furthermore, it would be good practice when lengthy bail hearings are anticipated for the police to alert the court so that judges could be assigned ahead of time: see Brown (Ont.S.C.) at paras. 19-21. The court and the Crown may have been informed in this instance; there was no evidence led on this subject. Furthermore, where the allegations are complicated, the justice or judge ought to be given the synopsis at least the night before for the purpose of abbreviating the hearing in court.
97When this bail hearing was eventually held on December 24, 2019, the synopsis was still far too long. It was approximately 35 pages. A major skill lawyers must hone is the ability to distill lengthy and detailed facts into a condensed overview geared towards the issues to be decided. The Crown had 12 days to trim the synopsis down before the hearing was held. Bail hearings are an expedited procedure but with enormous consequences for the accused and the public. There must be a laser focus on the evidence that is pertinent to the three grounds for bail detention. Everything else is extraneous.
98The prolixity of the synopsis is not only evident from its sheer length. When reference is had to Justice Mackay’s reasons, it is clear that the synopsis was ineffective for the purpose it was designed to achieve. Justice Mackay summarized the facts in 6 paragraphs, about one page in all. That is typical for bail reasons. The contrast between the length of the synopsis and the efficiency of Justice Mackay’s recitation of the allegations is telling. Without being overly rushed, and without eliminating important information from the presiding justice or judge, all parties must endeavour to compress their evidence and arguments to ensure the bail system runs efficiently and expeditiously. If bail is not expeditious, the system is in danger of collapsing under its own weight: Toronto Star Newspapers at paras. 23, 26-27; R v. Michel, 2020 ONSC 1505, 162 W.C.B. (2d) 317 (Ont. S.C.) at para. 35; R. v. Tunney, 2018 ONSC 961, 44 C.R. (7th) 221 (Ont.S.C.) at paras. 41-42. This is particularly true in Brampton where, as Askov originally concluded, institutional delays beset the court system. To a significant extent, based on my judicial experience and observations, substantial problems remain: see e.g. former Regional Senior Justice P. Daley’s remarks about the chronic delays in Brampton from 2018: “Cases are still being sent to outlying jurisdictions because of lack of court space”: The Globe and Mail, February 19, 2018:
1
99In this case, the bail hearing with a proper synopsis and the streamlining of the evidence of the sureties, the hearing ought to have been completed in approximately half the time it actually took. This leads to a question whether this bail hearing ought to have been set for a special bail in the first place. As Jordan suggests in the context of trials, institutional delay can be reduced by ensuring that court hearings are expeditious: Jordan, at para. 131. Perhaps it is the importance of bail to both accused and the Crown that in some instances leads to the hearings being unduly protracted. That, however, has detrimental consequences all the way down the line, substantially contributing to backlog.
III. HAVE THE APPLICANTS SUCEEDED IN DEMONSTRATING AN ABUSE OF PROCESS FOR WHICH A STAY OUGHT TO BE IMPOSED?
100Abuse of process cases fall into two categories: First, misconduct can impair a fair trial and; Second, there exists a "residual" category in which the fairness of the trial is not impugned. The main issue becomes the integrity of the process: R. c. Babos, at paras. 30-47; R. c. Bellusci, 2012 SCC 44, [2012] 2 S.C.R. 509 (S.C.C.); R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297 (S.C.C.); and Canada (Minister of Citizenship & Immigration) v. Tobiass, [1997] 3 S.C.R. 391 (S.C.C.). The present case is in the residual category as the Charter violation committed will have no impact at trial.
101The three requirements of the abuse of process test as articulated in Babos at paragraph 32 are: 1. Prejudice that will be manifested, perpetuated or aggravated through the conduct of the trial or its outcome. The state conduct must be offensive to societal notions of fair play and decency and harmful to the integrity of the judicial system; 2. No adequate alternative remedy is available for the prejudice; and 3. Where it is the residual category in issue, there must be a balancing of the interests in favour of a stay against the societal interests in a decision on the merits. A stay can only be imposed if it is the “clearest of cases.”
102The exploration of bail hearing delays above leads to several conclusions: 1. The authorities have stressed for many years the fundamental importance of bail and, within that, the necessity for an early determination of the bail question; 2. There have been systemic problems in Ontario over a number of years in holding prompt bail hearings after arrest. These problems have been raised forcefully and repeatedly in the case law as well as in extra-judicial reports; 3. The evidence demonstrates that there have been ongoing systemic bail delay problems in Brampton. The problem in not a new one. The survey conducted by counsel and the Crown memo of October 5, 2020 leave no doubt of this. Delays are pervasive and occur with alarming frequency with respect to special bails The delay problem was clearly in evidence at the December 13, 2019 hearing in this case. The Justice of the Peace referred to insufficient resources and the overburdened list. A date was set three weeks into the future; 4. The delays, based on the Crown memo and the anecdotal evidence of the two 2020, cases remains a current problem. As the Crown Attorney wrote, the problem “persists” and; 5. Whether the problem is scarcity of resources, inefficient use of available resources or both in combination, the evidence adduced shows that nothing significant has been done to address the situation besides Ms. Allison’s memo and the practice directions. These efforts have failed to wrestle with the root of the problem or lead to meaningful change.
103What is the purpose of a stay of proceedings for abuse of process? It is to denounce and disassociate the court from conduct which shocks the community's conscience and/or offends its sense of fair play and decency: Babos para. 41. Expressed in negative terms, it is to ensure that the judiciary does not condone unacceptable, intolerable state conduct.
104The focus is on the future, not on the past. The Supreme Court said in Tobiass at para. 91,
For a stay of proceedings to be appropriate in a case falling into the residual category, it must appear that the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society's sense of justice. Ordinarily, the latter condition will not be met unless the former is as well - society will not take umbrage at the carrying forward of a prosecution unless it is likely that some form of misconduct will continue.
(Emphasis Added)
105The elaboration in Tobiass at para. 96 is of assistance,
A stay is not a form of punishment. It is not a kind of retribution against the state and it is not a general deterrent. If it is appropriate to use punitive language at all, then probably the best way to describe a stay is as a specific deterrent — a remedy aimed at preventing the perpetuation or aggravation of a particular abuse.
(Emphasis Added)
106The Court in R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297 at para. 54 sounded the same theme,
… a stay of proceedings is a prospective rather than a retroactive remedy. A stay of proceedings does not merely redress a past wrong. It aims to prevent the perpetuation of a wrong that, if left alone, will continue to trouble the parties and the community as a whole, in the future.
107In Babos at para. 39, Justice Moldaver held that the ultimate issue was, “[W]hether proceeding in light of the impugned conduct would do further harm to the integrity of the justice system.” Justice Moldaver continued on at para. 39 to clarify,
…the goal is not to provide redress to an accused for a wrong that has been done to him or her in the past. Instead, the focus is on whether an alternate remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward.
(Emphasis in Original)
108There are some similarities between stays for abuse of process and the exclusion of evidence remedy under Section 24(2) of the Charter. Exclusion is not for the purpose of deterring the police, although that may be a “happy consequence.” Rather, the objective is to “preserve public confidence in the rule of law and its processes”: R. v. Grant 2009 SCC 32, [2009] 2 S.C.R. 353 (S.C.C.) at para. 73. A stay for an abuse of process is more than an evidentiary remedy; it goes to the right of the executive to prosecute. It includes the concept of encouraging and preserving public confidence but also has a more proactive purpose with the express intention of altering government action (or inaction) in the future: see S.B. at paras. 34-38; R. v. Wilson 2020 ONSC 6928 (Ont. S.C.) at paras. 36-38. While appreciating the prospective and ameliorating aim of a stay for abuse of process, the overarching purpose of a stay is to protect the integrity of the system. The authorities makes it clear that courts are not permitted to stay proceedings just to “get things done.” As guardians of the Charter, upholding and safeguarding Charter values into the future is the central facet of the abuse of process remedy.
109There was some suggestion in Raffaele Simonelli’s factum that there is no need for the balancing test from step 3 of Babos. I disagree. Balancing is always required with a residual category case. The Court of Appeal sent back Zarinchang precisely because the trial judge had not gone through the balancing required and had not considered the societal interest in prosecuting the case on its merits: see paras. 59-63. In Babos, Justice Moldaver specifically approved of Zarinchang in this respect at para. 43. Reference should also be made to the last line of para. 41 in Babos: “But in residual category cases, balance must always be considered.”
110To paraphrase on the critical issue of balancing, the question is whether the price of a stay on these very serious charges outweighs the gain to the administration of justice and the public: Zarinchang, para. 60; Babos, at para. 43. It is only where the "affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases" that a stay of proceedings will be warranted: R. v. Conway, [1989] 1 S.C.R. 1659 (S.C.C.) at p. 1667.
111Examining first the prejudice to the integrity of the system demonstrated by the record in this case, the recent decision of the Supreme Court in R. v. Reilly, 2020 SCC 27, 2020 CSC 27 (S.C.C.) is illuminating in its emphasis on the impact of systemic bail delays on the integrity of criminal justice. The police in Reilly breached Section 503(1)(a) of the Code by not taking Reilly for a bail hearing within the 24 hours required by that provision. Instead, the delay was 36 hours. He was then released on bail. The Crown conceded a breach of Section 7, 9 and 11(e) of the Charter. The trial judge concluded that Reilly was detained for longer than permitted because of systemic issues arising out of problems with a new administrative procedure which had not been addressed in a timely fashion. Violations of Section 503(1)(a) of the Code were frequent and had been for at least 17 months. The trial judge, balancing the seriousness of Reilly’s domestic assault charges against the ongoing systemic problem in holding timely bail hearings, found that it was one of the clearest of cases and stayed the prosecution: R v. Reilly, 2018 ABPC 85, [2018] A.W.L.D. 1977 (Alta. P.C.) at para. 54.
112The Alberta Court of Appeal reversed and ordered a new trial: R. v. Reilly, 2019 ABCA 212, [2019] 9 W.W.R. 60 (Alta. C.A.). Although it is open to interpretation, at bottom there was a philosophical disagreement with the trial judge about the efficacy of a stay of proceedings to rectify the systemic delays: see paras. 33, 47, 59. The Court concluded with a warning that if the government did not remedy the problem in very short order, the matter would be back before the courts, hinting that a stay at that point might well be appropriate: para. 59.
113The Supreme Court reversed the Court of Appeal and re-imposed the stay, saying in full,
In these circumstances, which include the trial judge’s finding at para. 63 of her reasons (2018 ABPC 85, 411 C.R.R. (2d) 10) that the breach of s. 503 of the Criminal Code, R.S.C. 1985, c. C-46, was an instance of a systemic and ongoing problem that was not being satisfactorily addressed, we are all of the view that there was no basis for the Court of Appeal to interfere with the trial judge’s exercise of discretion: see R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 41.
(Emphasis Added)
114Although the charges are much more serious in this case, the decision in Reilly reaffirms the command in Babos at para. 41 that conduct which reflects a systemic and ongoing problem is a major factor in whether a stay ought to be imposed. Also see. Tobiass at para. 91; Zarinchang, paras. 62-63; R. v. Kaitting, [2016] O.J. No. 930 (Ont. S.C.) at paras. 34-35.
115The stay application in this case, as suggested at the outset, turns on the seriousness and pervasiveness of the systemic problem Brampton of getting special bails promptly heard, balanced against the seriousness of the charges. In Reilly, the Supreme Court was of the view that the systemic ongoing problem was critical in justifying the trial judge’s decision to stay the charges. Also see R. v. Thim, 2015 BCSC 1677, [2015] B.C.W.L.D. 7086 (B.C.S.C.) at para. 83. That is a main focus on this application as well.
116The evidence on this application, like in Reilly, demonstrates a serious systemic ongoing problem that is not being effectively addressed. The cases of Vilotta and S.(B.) out of our jurisdiction are some indication of the problem going back several years. The Supreme Court in 2010 referred to “the backlog plaguing the bail courts” in Ontario: Toronto Star Newspapers Ltd. v. R., at para. 55. Systemic bail delay problems have existed in other regions in the province as well as evidenced by Zarinchang and Jevons (Central East), and Brown and S.(B.) (Toronto). In 2014, the authors of Set up to Fail concluded from the case law and from their own interview and court observations, that there were significant problems with bail delay in Ontario. The federal government reports cited above confirm these concerns.
117The Court of Appeal and the Ontario trial courts have issued unmistakable warnings over many years that bail delays are an extremely serious infringement of accused’s persons statutory and constitutional rights. Because of the seminal values at stake, they jeopardize the very integrity of the criminal process. These authorities furnish the necessary context in which to examine the bail delays in Brampton.
118The evidence specific to Brampton begins with this case itself. Three weeks over the holidays to wait for a bail hearing is egregious. This was the best date that could be provided, even with the involvement of the Regional Senior Justice of the Peace. It was only fortuitous that the bail hearing was held 12 days after arrest, shocking enough in itself. The Justice of the Peace on December 13, 2019 said that, “And I can’t speak to the issue of resources other than they do not exist.” Despite a chorus of loud complaints from defence counsel on that date, the best the system could originally accommodate was a bail hearing three weeks away.
119It is often difficult to evidence systemic delay beyond the case immediately at hand. In my view, the Applicants have successfully done so. The survey of special bail hearings in 2019 indicates that the Criminal Code is routinely violated and the Section 11(e) right not to be denied bail without just cause repeatedly infringed. The violations are frequent, they are substantial and they are serious. In confirmation, the Crown’s office acknowledged in their memo that there is a serious, persistent and ongoing problem. In my opinion, the problem is not of recent origin nor, based on this record, can it be positively attributed to any specific cause. Clearly, however, defence counsel cannot be saddled with responsibility for it. All that can be said with assurance is that the government is the origin of the problem and the government must be the solution to the problem.
120The 12 day delay in this case is of the same length as criticized in several of the main cases including Jevons (7 days), which led to a stay, later cited with tacit approval by the Supreme Court in Toronto Star Newspapers at para. 55, and S.(B.) (12 days). In the latter, Justice Rosenberg agreed that fair play and decency had not been maintained. It is true that quite a few other cases discussed above had substantially longer delays. But it has never been questioned in the jurisprudence nor at this hearing that 12 days is well outside a reasonable delay period. Viewed in the context of the 12 day delay being shown to be a typical one for special bails, this constitutes a major institutional failure.
121The delay experienced by the Applicants is merely one manifestation of a deep, far ranging problem. Those who await an opportunity to be heard and released on bail in contravention of the most sacred principles in the criminal law, the presumption of innocence and the right to liberty. These are core Charter protected rights. The Chief Justice’s words in Myers aptly describe the underlying cause (at para. 38),
Delays in routine bail and detention matters are a manifestation of the culture of complacency denounced by this Court in Jordan, and must be addressed.
122The problem being a relatively long term one, it is safe to say that complacency has set in. The criticism in Jordan of trial delay applies equally to delays in hearing bails:
40 … a culture of complacency towards delay has emerged in the criminal justice system …Unnecessary procedures and adjournments, inefficient practices, and inadequate institutional resources are accepted as the norm and give rise to ever-increasing delay. This culture of delay "causes great harm to public confidence in the justice system" (LeSage and Code, at p. 16). It "rewards the wrong behaviour, frustrates the well-intentioned, makes frequent users of the system cynical and disillusioned, and frustrates the rehabilitative goals of the system" (Cowper, at p. 48).
(Emphasis Added, Citations Omitted]
123Unreasonable delay in bail hearings bears some similarity to unreasonable delay in trials but there are significant differences as well. Bail delays are much less conspicuous than trial delays. The prejudice caused by bail delays, although exceedingly harmful, is easy to overlook. Once the bail hearing has been held, the delay in holding the hearing may often be forgotten. If there is a detention order, it might be thought that an earlier hearing would not have reduced the accused’s prejudice. If released, counsel, relieved that their client has regained their liberty, will often turn their immediate attention to the charges and to trial.
124But, although not as high profile, it is likely that the causes of bail delays are not all that different from trial delays. In both, resources--their availability and utilization--and the complacency of participants are the main issues: Jordan at para. 117.
125The delays revealed in this application display a significant degree of indifference and complacency towards an accused’s liberty interests. The alarm bell has been sounding for decades now. But at least in Brampton, no progress seems to have been made. A blind eye has often been turned to the delays. Maybe it is hoped the problem will go away on its own.
126The delays take place with respect to special bail hearings in particular. These bail hearings, like the one at hand, generally involve serious and complicated allegations. Perhaps it is thought that accused in these type of cases ought reasonably to expect that they must wait to have their liberty adjudicated upon. That is misconceived. While clearly a more involved and complex hearing may take somewhat longer to be scheduled and heard than a typical bail hearing, this is no excuse for the delays of the length exposed by counsel in this case.
127In addition, bail hearings with multiple accused, like this one, may be given somewhat more latitude than bails for accused who do not have co-accused. But the Applicants’ survey dealt primarily with single accused and the delays were similar in length to the delay experienced here. The Crown did not attempt to justify or mitigate the delay in this case by arguing that it was attributable at least in part to there being multiple accused.
128Public confidence is integral to our system of justice and, specifically to the bail system: Valente v. The Queen, [1985] 2 S.C.R. 673 (S.C.C.) at p. 689; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32 (S.C.C.) at paras. 68, 73; R. v. Hall, at para. 27; R. v. St. Cloud at para. 33. The importance of maintaining the confidence of the public is explicit in the tertiary ground of bail in Section 515(10)(c) of the Code: see Myers at paras. 50, 53, 61. Chronic bail delays diminish the public’s faith in the administration of justice.
129Concluding on the central question of whether the violation of Section 11(e) of the Charter will likely continue into the future, the issue stressed in Tobiass, Reagan and Babos, there is every reason to believe the problem will continue. This case is similar to Reilly in this respect. There is a serious unaddressed systemic problem with no end in sight. It can be inferred that the problem beginning significantly before 2019 as established by the Applicants’ survey, is no different today. Nothing of substance has been done to intervene and change the direction. The inference that the problem is current and continuing is powerfully reinforced by the Crown memo of just a few months ago from a key participant in the criminal justice system.
130These are the considerations going to the first limb of the Babos analysis, matters relevant to the integrity of the process being compromised by bail delay. These must be balanced against the societal interest in the prosecution of the Applicants, including the seriousness of the charges. The societal interest here is unquestionably very compelling. As is generally the case with respect to special bails, these are very serious charges. Firearms are a social evil. Firearms offences are on the increase in the GTA and in Brampton: R. v. Chizanga and Meredith, 2020 ONSC 4647, 165 W.C.B. (2d) 227 (Ont. S.C.) at paras. 5-39; R v. Korkis, 2020 ONSC 8017 at para. 19. The general sentencing range for firearms is a minimum of 3 to at least 5 years: R. v. Graham, 2018 ONSC 6817, [2018] O.J. No. 5993 (Ont. S.C.) at para. 38; R. v. Elvira, 2018 ONSC 7008, [2018] O.J. No. 6185 (Ont.S.C.) at para. 27; R. v. Mansingh, 2017 ONCA 68 (Ont. C.A.) at paras. 21-24. Rafaelle Simonelli is charged with two firearms counts and the taser counts as well. Michael Simonelli is charged with one firearms count. The case against both is strong and was not argued to be otherwise by the Applicants.
131The investigation in this case was of high public importance. It was a continuation of another illegal gaming operation investigation from 2012. However, the Applicants were not implicated in that matter. In total, the Applicants are charged with 10 gambling and gaming counts including keeping a common gaming house, having possession of money derived from illegal gambling, and participating and contributing to the activities of a criminal organization in order to facilitate its commission of gambling and gaming offences. In the present investigation, it was found that several websites were used to host illegal betting on sports games. Canadian bookies would take bets and then pay out or collect cash from the winners and losers. The upper echelons of the operation were composed of three Hells’ Angels Outlaw Gang members but only one of whom was charged in this prosecution.
132A gaming house was located by the police in Mississauga and cameras installed surreptitiously by the police. Video gaming machines were used at the address. The cameras captured goings on in the premises including the counting of money. The Applicants had multiple roles as agents, money collectors and bookmakers. A tablet was seen on video and seized at the takedown which contained valuable information about the bookmaking operation. General warrants were also used to access the bookmaking server itself. There were also wiretap intercepts which incriminate Raffaele Simonelli in particular in the gambling operation. Both Applicants regularly accessed the website account.
133The gaming offences are serious particularly as they are in the context of the greatly aggravating feature of a criminal organization. On the Applicants’ behalf, about all that can be said is that they do not have meaningful criminal records. They have families. However, in totality, there is a strong and compelling societal interest in prosecuting these two men.
134The Applicant Raffaele Simonelli in his factum states that if the entire investigation and prosecution, including charges against 20 other accused persons, were to collapse as a result of a stay, that would weigh against a stay being ordered. The factum, to parry this hypothetical, asserts that a stay against the Applicant (and presumably his cousin too) would not have that effect: para. 114. I agree that this is a valid consideration. No other accused in the prosecution have come forward to join the Applicants’ request for Charter relief. That only these two Applicants are requesting relief does not incline towards a stay. It only removes from consideration the potential negative effect of further derivative harm to the public interest attendant upon a stay being imposed.
135Halting this prosecution in significant part not because of the prejudice the Applicant have themselves suffered but rather because of systemic delays which cumulatively have prejudiced many others standing in the same position over s substantial time frame is an extremely bitter pill to swallow, to put it mildly. In the words of Zarinchang, the Applicants are reaping a windfall: para. 60, specifically approved of in Babos, para. 43.
136The Crown argues with some force that a stay ought not to be imposed because the failing is institutional in nature and “outside the control of the Crown Attorney’s Office.” That was the tack taken in the October 5, 2020 memo as well. The limited qualification to this, as mentioned, is that bail hearings can and should be conducted more expeditiously than occurred in this case. However, even presuming that the Crown’s factual premise is correct that they have no responsibility for delays, I do not agree that this reduces the seriousness of the situation. The problem of delays in holding bail hearings is not new; it has been going on for a number of years. The threat to individual rights has been recognized in the authorities. Lack of state initiative and action has led to the delays continuing. The Crown has the obligation to justify a lack of resources and could not do so in this case: Askov at paras. 29, 61, 69.
137In relation to the second part of the Babos test, whether a remedy alternative to a stay can be fashioned, costs were not seriously proposed by either Crown or defence. The evidence does not go so far as to show that the Crown was primarily at fault for the delay, rendering a costs order clearly inappropriate.
138The reduction of sentence is the most viable alternative remedy. It is contingent, however, on the accused persons being found guilty. The case against the Applicants is strong and there is every possibility that they will be sentenced eventually. However, a contingent remedy, in my view, is not commensurate with the impact and duration of the bail delay problem unearthed by the Applicants. It would be quite inadequate to disassociate the court from the problem. Moreover, it is urgent that the dysfunction be tackled now. Immediate attention is required. The trial may well not take place for a considerable period of time leaving the remedy, not only contingent, but in legal limbo. In this aspect as well, a sentence reduction would not be responsive to the nature and extent of the ongoing Charter violations prevalent in Brampton.
139An admonition is not in my view sufficient either. The cases and other authorities canvassed in this judgment essentially function as admonitions, admonitions expressed over a period now of 20 years. Their content is unequivocal. At least two Ontario cases have specifically mentioned the possibility of stays being imposed: Zarinchang (Ont. C.A.); Brown (Ont.S.C.) at para. 24; also see R. v. Balfour at para. 91. In fact, in Zarinchang, a case decided 10 years ago, it was said at para. 66,
It may be that a stay of the charges against this respondent is an appropriate price for society to pay in order to correct a serious systemic failure in the bail system in York Region.
140But the problem at least in Brampton, despite the multiple warnings coming from the courts and the government itself, persists. The integrity of the administration of justice is being undermined in the eyes of the participants, the accused and the public. There appears to be no answer on the horizon.
141A stay is a drastic, rarely imposed remedy. The “clearest of cases” and the balancing process are both to ensure that only exceptional cases are stayed. To deprive the state of the right to prosecute such serious criminal allegations must be a last resort. In the circumstances of this case, the price of a stay is undeniably steep. Against these considerations, however, a reasonable, informed member of the public would be offended and shocked by the long-standing problem of delays in having special bails heard in Brampton and the probability that these delays will continue. In view of the fundamental importance of Section 11(e), fair play and decency have not been maintained. Bail delays of the nature and extent demonstrated are a blot on the administration of justice. Pervasive, substantial delays in adjudicating on the accused’s liberty after arrest, a vital judicial function, lie very high on the scale of egregiousness. A system that cannot provide an accused with the basic entitlement of a bail hearing with reasonable promptitude is broken on the most fundamental level.
142It is most regrettable that it has come to this. Sadly, the long-standing nature of this problem and the profoundly detrimental effect on countless others not before the court, coupled with the virtually inevitable perpetuation of delays into the future, requires a stay. The gain to the administration of justice from a stay supercedes the high price that must be paid. In my view, the Applicants have met their burden, despite the manifest seriousness of these charges. In the circumstances, proceeding against them cannot be countenanced.
143For these reasons, the application is allowed. All charges on the charging documents before the court against both Applicants are stayed for abuse of process.
144I would like to express my appreciation to all counsel for their assistance in this application.
D.E HARRIS J.
Released: January 15, 2021
APPENDIX A
| # | Case | Length of Delay in Obtaining Hearing |
|---|---|---|
| 1 | R v Simonelli | 21 days (obtained earlier hearing after filing Habeas Corpus application) |
| 2 | R v McInnis | 13 days |
| 3 | R v Robichaud | 16 days |
| 4 | R v Velauther | 13 days |
| 5 | R v Phillips | 13 days |
| 6 | R v Ivey | 14 days |
| 7 | R v Douglas | 9 days |
| 8 | R v Arends-Fulton | 9 days |
| 9 | R v Smith | 11 days |
| 10 | R v Both | 13 days |
| 11 | R v Anestin | 5 days |
| 12 | R v Morgan | 16 days (reduced to 4 with second appearance by counsel) |
| 13 | R v Belanger | 25 (reduced to 6 with second appearance by counsel) |
| 14 | Rv Dugassa | 11 (obtained hearing on consent after multiple appearances by counsel) |
| 15 | R v Yearwood | 13 days |
| 16 | R v Jama | 7 days |
| 17 | R v Chery | 6 days |
| 18 | R v Whyte | 29 days (obtained earlier hearing after filing Habeas Corpus application) |
| 19 | Mr. Alton’s matter | 17 days/ (reduced through continuous efforts of counsel)7 days |
| 20 | Mr. Adler’s matter | 13 days |
| 21 | R v Hylton | 7 days |
| 22 | R v Walker | 11 days |
| 23 | R v Dove | 5 days |
| 24 | R v Patel | 8 days |
| 25 | R v Kulapragasm | 19 days |
| 26 | R v Dwayne Douglas | 15 days |
| 27 | R v Ricketts | 35 days |
| 28 | R v Odubu | 6 days |
| 29 | R v Ramirez | 12 days |
| 30 | R v Sohal | 28 days |
| Average | 13 days |
COURT FILE NO.: CRIMJ(P)0033/20
DATE: 2021 01 15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E N:
Her Majesty the Queen
Respondent
- and –
RAFFAELE SIMONELLI and
MICHAEL SIMONELLI
Applicant
REASONS FOR JUDGMENT
D.E HARRIS J.
Released: January 15, 2021
Footnotes
- Upon leave being sought to hear this matter at the relatively early stage in the proceedings, I agreed with the Applicants that this application for a stay of proceedings under Section 24(1) of the Charter should be heard: R. v. Menard, [2008] B.C.J. No. 2438 (B.C.C.A.) at para. 43; R v Mills [1986] 1. S.C.R. 863 (S.C.C.) at paras. 70- 77; Endean v. British Columbia, 2016 SCC 42, [2016] 2 S.C.R. 162 (S.C.C.) at para 60; R. v. Rahey, [1987] 1 S.C.R. 588 (S.C.C.) at paras. 16-17, 87. It made sense to dispose of this application now in order to preserve precious court resources. If the matter were to be stayed, that could and should be determined at the earliest feasible juncture. No trial court had been selected. The Crown agreed that there was inherent jurisdiction but argued that it should be declined. The major reason advanced was that if a reduction in sentence was ordered as an alternative remedy, the implementation of the order by a trial judge would be too difficult logistically. However, there is ample precedent for this approach. see e.g R. v. Foster, 2018 ONCA 53, [2018] O.J. No. 488 (C.A.) at para. 137. It was an insufficient reason to deny leave.
