COURT FILE NO.: CR-21-00000662-00MO & CR-21-00000745-00MO & CR-21-000006663-00MO & CR-21-00000664-00MO
DATE: 2021 07 30
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N: )
HER MAJESTY THE QUEEN )
Respondent )
- and - )
John Kingdon for the Crown Respondent
ROBERT BARLETTA, DEJAN MARKOVIC, HABIBA KAJAN and GIOVANNI VISCONTI
Applicants
) James Lockyer and Craig Zeeh
) for Robert Barletta
) C. A. Morrow for Dejan
) Markovic
) Jack Gemmell for Habiba Kajan
) Heather Spence for Giovanni
) Visconti
) HEARD: April 27 & 28, 2021 by
) videoconference
PUBLICATION IS BANNED PURSUANT TO S. 648(1) OF THE CRIMINAL CODE
ABUSE OF PROCESS RULING
D. E. HARRIS J.
[1] This is the second chapter in the examination of systemic delays in lengthy bail hearings in Brampton. The first chapter was R. v. Simonelli and Simonelli, 2021 ONSC 354, [2021] O.J. No. 190 (Ont. S.C.).
[2] In Simonelli, it was found that the delays in holding the two Applicants’ bail hearings violated Section 11(e) of the Charter of Rights and Freedoms. The delays were systemic and had been ongoing for several years. In Brampton, a deaf ear had been turned to breaches of individual liberty for those waiting for special bail hearings: i.e. bail hearings that the Crown asserted would take more than two hours. Despite the seriousness of the charges the Simonellis faced, it was the clearest of cases and a stay of proceedings was imposed.
[3] The four Applicants, like the Simonellis, were arrested in the December 12, 2019 takedown of Project Hobart, a lengthy police investigation into online gambling with alleged ties to organized crime. They too were subjected to inordinate delays in having their right to bail determined. Counsel for these Applicants, with the exception of Mr. Visconti, protested vehemently at the time of their first appearance that the proposed date for their bail hearings was unacceptable. The Crown concedes, as they did in Simonelli, that the Applicants’ rights not to be denied reasonable bail without just cause protected by Section 11(e) of the Charter were violated by the delay in waiting to have their bail hearings. The “nature and severity” of the breaches was similar. Like the Simonellis, these Applicants pray for a finding of abuse of process and a stay of the prosecution against each of them.
[4] The Applicants’ primary argument is that in the aftermath of Simonelli, insufficient remedial steps were taken to respond to the systemic problem in conducting timely bail hearings identified in that ruling. The secondary argument is that a stay of proceedings having been granted to the Simonellis, it would be unfair not to grant the same relief to these Applicants who stand in essentially the same position.
[5] Before analyzing the Applicants’ arguments, a brief review of the bail delays and the Section 11(e) violations suffered by each is in order.
I. THE BAIL DELAYS EXPERIENCED BY THE APPLICANTS
ROBERT BARLETTA
[6] Mr. Barletta is charged with possession of a firearm, bookmaking including bookmaking for a criminal organization, possession of money obtained by crime ($11,000) and tax evasion. After being arrested on December 12, 2019, in the court appearance on December 13, 2019, Mr. Barletta’s bail hearing was scheduled for what was said to be the earliest date available, January 6, 2020. Mr. Lockyer expressed his displeasure and opposition to the delay in no uncertain terms but to no avail. As a result of the delay, Mr. Barletta brought a habeas corpus application returnable December 20, 2019. On that date, Justice Durno urged the Crown to offer better dates. When December 24th through the 27th were offered, due to the short notice and the holiday season, counsel was no longer available. December 30, 2019 was set.
[7] On that date, just before court commenced, David King of the Crown’s office provided an 18-page synopsis to counsel and said other charges were forthcoming. As a result, the bail was adjourned to January 13, 2020. It was commenced that day and, not being completed, was continued on January 21, 2020. The judge reserved decision, and then ordered Barletta’s release on January 30, 2020. That was more than six weeks after his arrest.
HABIBA KAJAN
[8] Ms. Kajan is charged with possession of a firearm, possession of money obtained by crime (the same $11,000 Barletta is charged with) and bookmaking related charges including bookmaking for a criminal organization. Mr. Gemmell for Ms. Kajan also protested vigorously on December 13, 2019 when, over his strong objection, a date of January 3, 2020 was set for his client’s bail hearing. Mr. Gemmell would not consent to an adjournment beyond the three clear days provided in Section 516(1) of the Criminal Code. When the matter was returned on December 17, 2019, there remained no prospect of an earlier hearing. It was adjourned until December 20, 2019. Counsel, along with Mr. Barletta, had brought a habeas corpus application returnable the same day in Superior Court. As luck would have it, on the December 20, 2019 date, a court became available for the bail hearing. After the contested hearing, Ms. Kajan was released on a surety bail.
DEJAN MARKOVIC
[9] Mr. Markovic was arrested December 12, 2019 as well and charged with possession of two firearms found in the search of his residence and the bookmaking offences with which the other Applicants are charged. His bail hearing was designated a lengthy bail hearing and he was given a date for the hearing of January 15, 2020, more than a month after his arrest. Held in custody at Maplehurst Correctional Facility, it was erroneously determined that his life was at risk and he was segregated in protective custody from December 12 to December 20, 2019. On December 20, 2019, his counsel was able to secure the date of January 3, 2020 for his bail hearing, upon which date, he was released from custody on bail.
GIOVANNI VISCONTI
[10] Mr. Visconti was arrested December 12, 2019 and is charged with offences with respect to his alleged possession of a firearm and cocaine. He is not charged with the bookmaking offences. A special bail hearing was deemed necessary by the Crown and, on December 16, 2019, a date of December 31, 2019 was set. On that date, the hearing was held and the Justice of the Peace reserved until January 8, 2020. On that day, Mr. Visconti was ordered released on bail.
II. CONCLUSION WITH RESPECT TO THE APPLICANTS’ SECTION 11(E) CHARTER RIGHTS
[11] With the exception of Ms. Kajan who waited 8 days for her bail hearing, the Applicants’ delays were far longer than the 12 days the Simonellis had to wait. Mr. Barletta’s hearing began on January 13, 2020, concluded on January 21, 2020 and the ruling releasing him was delivered on January 30, 2020. He had to wait a full month before the hearing got off the ground and then more than two weeks before a ruling was delivered releasing him. Mr. Markovic’s hearing and release was 22 days after arrest. Mr. Visconti’s hearing was 19 days after arrest and then the ruling releasing him was over a week after that, a total of 27 days after arrest.
[12] Based on these delays, the violation of the Applicants’ rights was more serious than in the Simonellis’ case. The delays substantially exceed the average delay of 13 days in Brampton lengthy bail hearings established by Ms. Shikhman’s survey undertaken on behalf of Raffaele Simonelli and heavily relied upon in the ruling: Simonelli, para. 58. The inability of the system to do better for these Applicants’ underscores the gravity of the ongoing problem in late 2019, early 2020.
[13] There is no need to delve deeply into the principles underlying the crucial importance of prompt bail hearings to the fair administration of justice. That was done in Simonelli and it serves no useful purpose to go through it again step by step. Everything said there applies with equal force here. There are several matters that do require comment, however.
[14] Bail hearings are of fundamental importance to an accused’s right to substantive and procedural fairness. As quoted in Simonelli at para. 28, “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.” Keeping accused in custody waiting for a bail hearing is in direct conflict with the presumption of innocence. A prompt bail hearing following arrest is constitutionally required. Time is of the essence. Section 516(1) of the Criminal Code sets the three clear days standard. The Supreme Court and other courts have emphasized over many years the vital importance of holding bail hearings promptly: R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 (S.C.C.), at para. 109; R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509 (S.C.C.), at 67d; Toronto Star Newspapers Ltd. v. R., 2010 SCC 21, [2010] 1 S.C.R. 721 (S.C.C.), at para. 11; R. v. Zarinchang, 2010 ONCA 286, [2010] O.J. No. 1548 (Ont. C.A.), at paras. 38-39; R. v. Elbadri, [2011] O.J. No. 6123 (Ont. S.C.J.), at para. 9.
[15] There was no evidence in Simonelli with respect to whether the police advised the authorities that the accused arrested in Project Hobart would be brought to court on December 12, 2019. There was evidence in this hearing on the subject, however. Mr. Gemmell was able to obtain the redacted police briefing notes from Project Hobart. The notes reveal that a prosecutor was brought on as a consultant well before the takedown. In early November, consideration of “release v. bail [hearings]” was initially discussed. The criminal organization charges were discussed in so far as they were relevant to the issue of bail. There was further consideration of bail on November 18, 2019. On November 26, 2019, the notes indicate that accused who are found in possession of firearms will be held for bail. There is nothing in the notes to indicate that the court was notified that there would be a large influx of accused persons after the takedown who would require bail hearings.
[16] The Crown filed an affidavit from the Ontario Court of Justice Trial Co-ordinator, Michelle Crawford. Ms. Crawford was cross-examined by defence counsel to fill out the record. None of the lawyers attempted to impugn her evidence. In fact, all agreed that she was a helpful witness. I agree.
[17] Ms. Crawford testified that she was told to have a court available for the remand of persons arrested and to be held for bail in Project Hobart. This was conveyed a day or two before the December 12, 2019 takedown date. At no time was she told to have a bail court available to do release hearings for the accused. Ms. Crawford was not expected to free up judicial officers or court space for special bail hearings. It was not her job. The evidence is that for the December 13, 2019 hearing to set bail hearing dates, the Regional Senior Justice of the Peace communicated with Ms. Crawford to find judges and courtrooms to hold the Project Hobart accuseds’ bail hearings: Simonelli at para. 10.
[18] In conclusion on this issue, upon the takedown of the project, a carefully planned event, the most important people were the people who were being held for bail hearings. But it is clear from the evidence that no one adverted to this fact and made accommodations to ensure that there would be swift adjudication of the continuing deprivation of their liberty. This lack of concern and preparation is unsettling. It is of a piece with the large body of other evidence demonstrating chronic systemic delays in Brampton. The failure to consider the accused in custody epitomizes the indifference towards the fundamental liberty interests of the accused.
[19] In my view, this evidence illustrates the concern expressed in Simonelli that because the state has the upper hand when an accused is arrested and held for bail, there is no urgency felt by the authorities to adjudicate on his or her liberty. Whether a Crown onus or a reverse defence onus, the status quo is that the accused has been arrested and must wait in custody for a bail hearing. This dynamic puts enormous power in the hands of the authorities, a power subject only to retrospective judicial review.
[20] The inability to provide judicial officers, courtrooms or staff is no excuse for the failure to conduct a bail hearing within the three clear days timeframe of Section 516(1). Bail hearings are an absolute priority within the system of criminal justice. In this case, the conclusion is inescapable that the Section 11(e) rights of the Applicants were violated.
III. HAS THE SYSTEMIC DELAY IN CONDUCTING BAIL HEARINGS BEEN RECTIFIED?
[21] This application was fought principally on the question of whether the problem identified in Simonelli has been rectified. The Crown used Ms. Crawford’s affidavit and court statistics to argue that it has been. This material was filed late, on the Thursday before the hearing on the following Tuesday. Mr. Kingdon was frank about the issues that led to this state of affairs, some involving COVID-19. Defence counsel argued that the material should not be allowed into evidence. I disagreed at the hearing and gave short reasons to support the ruling.
[22] To elaborate briefly, if the Crown materials had not been admitted, it would have been virtually inevitable that, like Simonelli, the charges against these Applicants would have to be stayed for abuse of process. In their defence of this application, the Crown would have been deprived of the only arrow in their quiver.
[23] As stressed in Simonelli, there is a very powerful public interest in the prosecution of the charges against these Applicants. These are very serious charges with organized crime elements: Simonelli, paras. 130-133. To deprive the Crown from using the Crawford material and statistics, with the direct consequence of stays of proceedings being ordered against four accused, would have been disproportionate to the tardiness in filing. On the other hand, granting an adjournment would serve as a cure-all for any prejudice which could befall the Applicants as a consequence of the late filing. After being given time to consider their options, the Applicant declined to opt for the adjournment offered them. The hearing proceeded. In my view, there was no unfairness to the Applicants. It is true that even absent direct prejudice, there may be circumstances in which the Crown ought to suffer significant consequences for late filing or other breaches of the Rules. But this is not one of them, in my view.
[24] Moving to the main issues, to summarize the evidence from Ms. Crawford, the Simonelli ruling was released on the afternoon of January 15, 2021 and was disseminated immediately in the early evening of that day by K. McLeod J. The next day, January 16, 2021, a Saturday, Ms. Crawford received an email direction from Regional Senior Justice P. Currie to ensure that a daily standing (remote, non-courtroom) option be available to accommodate special bail hearings that require 2 hours or longer. Staff, Crowns and judicial officers would also be provided.
[25] Ms. Crawford testified that staff at the Trial Co-ordinator's Office have always been directed that in custody matters are to be given priority. However, Ms. Crawford testified that this was not always followed and was not followed on December 13, 2019. Ms. Crawford testified, however, that the priority of custody matters was reiterated to staff following the release of Simonelli during a staff meeting on January 21st, 2021. Furthermore, it was not previously a uniform practice to put a bail on for the first available date. At this meeting, it was directed that this is a requirement. Now the day the defence requested is what they generally get.
[26] Since the pandemic began in March 2020, because bails are often done remotely, several extra courts have been available to accommodate lengthy bail hearings which would not be normally available for in-custody matters like bail hearings. There are two family courts which do not have a prisoner's dock, 2 H-block courtrooms at 7765 Hurontario, and, as of September 2020, a boardroom in the new addition to the Brampton courthouse, Room 108. Also, four new courtrooms became available in the new addition as of April 2020. In addition, the staff compliment in the Trial Co-ordinator’s Office has been increased from five to seven. There has been compliance with Justice Currie’s January 16, 2021 directive.
[27] The evidence adduced confirms the conclusions in Simonelli that there had been insufficient attention to getting bail hearings said by the Crown to require more than two hours completed. But now, there is an improved system and clearer direction for such hearings. If there is a shortage of courtrooms, staff or judicial officers, Ms. Crawford will remove a judge from a trial court to do the bail hearing. Bail hearings take priority over trials. While this may always have been the case in theory, it is now more clearly understood and acted upon.
[28] The most important evidence led by the Crown on this application is Ms. Crawford explanation in her affidavit that no lengthy bail hearings since January 18, 2021, were set outside the 3 clear day requirement in Section 516(1) of the Criminal Code unless counsel agreed to a longer adjournment. In the affidavit, all “Request for Special Bail Hearing Court” forms for lengthy bail hearings have been included for the time period between January 15, 2021 up to Friday, March 5, 2021. There are 31 in all. Generally, the first date the defence was available for the bail hearing was set. In the limited instances this did not occur, the date was no more than three days after they were first available, with one exception in which it was 4 days after. The chart prepared by the Crown distilling the contents of the Request Forms is attached as Appendix A to this ruling.
[29] The Crown also points to the Ontario Court of Justice “Direction for Scheduling Special Bail Hearing Courts” effective May 11, 2020. At pp. 4-6, a video or audio bail conference expedited procedure is established to narrow issues and judicial oversight is provided to ensure that the two- hours for a special bail hearing is in fact required. There is a preference stated for written materials. No direct evidence was led to elucidate how the new procedure is working in practice or whether it has been implemented in Brampton.
[30] The defence launched a vigorous attack on the changes to the special bail hearing system relied upon by the Crown. I do not intend to summarize all of these arguments. Mr. Gemmell argued that the pre-conference for special bail hearings may slow down the process of setting a date and are largely ineffective. Mr. Gemmell also argued that the extra courtroom and other measures are only a temporary fix. It was clear from statistics filed that COVID-19 has greatly reduced the intake for bail hearings, leading counsel to argue that once there is a return to normal, what has been done will not be enough. There will be considerable backlog which will be a major draw on available resources. No new justices of the peace or judges have been appointed. There is no evidence of systemic improvements. No plan has been put in place to increase resources or improve their efficiency. What is needed are policy changes and those have not happened. The measures have been of a stop gap nature and are not sufficient. A blind eye is still being turned towards the problems that led to the systemic bail failures. Much more needs to be done.
[31] Ms. Spence argues that the bail delays created a two-tiered system—one for accused who could afford a habeas corpus application and one for those who were on Legal Aid and could not. Crown cross-examination of sureties continues to be too long. What the Crown has done has not brought about fundamental, cultural change. It is a short term, not a long-term solution. The volume of bails is down by a significant amount, about 40%, and so it is quite a bit easier now, than at the time of the original bail hearing, to manage the timing of lengthy bail hearings.
[32] For her part, Ms. Morrow on behalf of Mr. Markovic, argued that the core problem of having each participant in the system of justice—the Crown, the trial co- ordinator, the judicial administrators—working in their own self-contained silos has not been addressed post-Simonelli. The Charter breach was ignored by those who were supposed to protect us from it. The system has not been held to account. There have been no assurances.
[33] Mr. Lockyer argued that there has been no attitudinal change towards holding bail hearings promptly. The indifference of the systemic problem remains. No new judges have been appointed to meet the problem. There has yet to be a realization that there must be new thinking on this issue. That is what will lead to real change. The Crowns’ office has not shown a new frame of mind either. There is no evidence that in cases where a large number of people are arrested, there is a system in place that a warning will go out to ensure that the bail hearings will be held expeditiously. Systemic issues of this nature need to be dealt with by bringing all the stakeholders together the way the Martin Committee did with respect to charge screening and disclosure (Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions (Queen’s Printer, 1993). There remain serious problems in allocating judges, staff and Crowns.
[34] Other similar arguments made by counsel for the Applicants’ emphasized the lack of a concerted policy or plan to prevent chronic delays from re-occurring. What has been done, in the Applicants’ submission, is a band-aid solution.
[35] The criticism levelled by the defence against the current procedure of scheduling and holding lengthy bail hearings cannot be dismissively brushed aside. The historical dysfunction prejudicing the accused’s liberty and fair trial interests demands serious work to ensure the problem does not return. The fact of the accused being in the custody of the state until final adjudication is a structural reality which breeds inertia and indifference. Apathy could cripple the system again and lead to intolerable bail delays. I agree that putting in place a dedicated bail hearing court and staffing for lengthy bail hearings has not yet been adequately tested because the pandemic has reduced the bail hearing volume and led to heavy reliance on remote hearings.
[36] The bail delay problem involves policy at its foundation. How important are expeditious bail hearings to the accused and to the integrity of the system? How best to guarantee efficiency? The jurisprudence and other authorities were canvassed in Simonelli. The Applicants attack the failure of the government to bring the imperfections in the system in line with the underlying philosophy and its importance.
[37] There is merit to a bottom up, stronger policy-based response. It would better protect against lapsing into the delay ridden special bail hearing inertia of the past. But the problem for the defence is that the tangibles are what really count, particularly when examining the evidence in the context of the stringency of the abuse of process rubric. There is simply no denying that the measures taken to date have drastically reduced the waiting times for lengthy bail hearings. The proof is in the pudding. The systemic delays which have plagued Brampton have now all but disappeared. The Applicants point to the relative ease with which the change was affected. It could be seen as a coda demonstrating that the true problem all along was one of indifference to the accused’s rights. But whatever the case, the problem has been addressed and rectified, at least on a temporary basis. The system has done what it needed to do in order to bring the delays within the requirement of Section 516(1) of the Code and Section 11(e) of the Charter.
[38] As pandemic conditions recede, it will likely be necessary to do more. A slide back into the previous complacency is not impossible. But to find this is likely to happen would not be a reasonable conclusion. It would be speculative. The statistics would have to be relegated to secondary importance. That would be unsound. It would favour policy over measurable outcomes. The system must be given leeway to make changes to address the demand for lengthy bail hearings. It reacted rapidly and relatively effectively to the Simonelli ruling. The issue now has been highlighted and it is reasonable to expect continuing attention be paid to it. It would be unreasonably pessimistic to predict failure.
[39] Not only do the statistics show that changes have ensured the delay has largely disappeared, there is a natural guard against falling into the old habits. Future unacceptable delays will now be seen in the context of the historical, systemic delays over several years. The extreme remedy of imposing stays of proceedings in the case of the Simonellis will hover like a black cloud over the bail system in Brampton. Slipping into the former complacency and allowing bail delays to re-occur will not likely be viewed with equanimity by the judiciary. At least to some degree, this forms a built-in protection against bail delays becoming a major problem again.
[40] In summary, an essential element of the Simonelli record has now changed. The systemic delays have been eliminated for the time being. It is important to remember that the stays imposed were not principally a response to the specific delays suffered by the Simonellis. Their bail delays, on their own, could never have justified stays. It was stated at paragraphs 3 and 135 of the ruling,
3 Consideration 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. …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.
135 Halting this prosecution in significant part not because of the prejudice the Applicant[s] have themselves suffered but rather because of systemic delays which cumulatively have prejudiced many others standing in the same position over a 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.
Also see paras. 21-22, 57
[41] The systemic nature of the problem was central; that is why a stay was required.
The inertia and indifference behind the systemic failure has now been broken. This is crucial in the context of a proposed stay for abuse of process, a forward-looking remedy. As was said in R. c. Piccirilli, 2014 SCC 16, [2014] 1 S.C.R. 309 (S.C.C.) [Babos], at para. 39,
. . . 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)
[42] The Supreme Court said in Canada (Minister of Citizenship & Immigration) v. Tobiass, 1997 CanLII 322 (SCC), [1997] 3 S.C.R. 391 (S.C.C.), 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)
[43] Also see R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297 (S.C.C.), at para. 54.
[44] The facts in Babos concerned improper conduct by the Crown attorney prosecuting the case. Tobiass dealt with the appearance of impropriety arising from a meeting between the Chief Justice of the Federal Court and the Assistant Deputy Attorney General. The subject matter of the abuse of process application in Regan was judge- shopping by the Crown amongst other things. In those cases, the misconduct at issue could have been repeated in the future but was not systemic in any true sense. But in Simonelli, unlike those instances and most other abuse of process examples, there was an ongoing systemic course of inaction. It stretched back into the past at least several years and there was no sign it was likely to abate.
[45] The indifference was deeply entrenched in the administration of criminal justice.
Warnings in the province and in Brampton going back almost twenty years had not been heeded. Based on the record produced, special bail hearing delays in our jurisdiction violating the Charter were not the exception; they were the norm. That was very disconcerting. In this aspect, Simonelli was on the same footing as the Supreme Court decision in R. v. Reilly, 2020 SCC 27, 2020 CSC 27 (S.C.C.), another systemic bail delay case, one heavily relied upon in the Simonelli decision: see paras. 111-116. There was every indication that the problem would continue without decisive condemnation and the imposition of real consequences.
[46] Placing the current record into the framework of the three-part test for abuse of process (Babos, para. 32), there has been a fundamental change with respect to the first test. The prejudice to the integrity of the system from the past systemic delays has been greatly diminished by the post-Simonelli measures ensuring bail hearings are held expeditiously. The second test, whether there is an alternative remedy to redress the prejudice, is correspondingly altered. The prejudice being lower, the appropriate remedy commensurate with the prejudice is diminished as well.
[47] With reference to the third test, the balancing of the need to protect the integrity of the system versus the public interest in a trial decision on the merits, a stay for these four Applicants would hobble this prosecution, detracting more from the public interest in prosecution of alleged criminal acts than the two stays ordered for the Simonellis. Pertinent to this issue, paragraph 134 of the Simonelli judgment reads,
The 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.
[48] If the prosecution were to be terminated against not only two individuals, but six, that would be a factor impacting on whether a stay of proceedings is appropriate. The more individuals who benefit from a stay, the greater the detriment to the public interest.
[49] Nonetheless, the higher public interest in prosecution because there are four Applicants, not only two, is of distinctly secondary weight in the abuse of process analysis. The main factor is that the need to protect the integrity of the process has largely receded since the changes in scheduling lengthy bail hearings.
[50] In conclusion, although the steps taken to fix the bail delay problem are open to criticism and, of course, more can always be done, the numbers do not lie. The bail delay problem has been addressed and placated for the time being.
IV. DOES PARITY WITH THE SIMONELLIS REQUIRE A STAY OF PROCEEDINGS?
[51] Counsel for the Applicants argued that there was no difference between this application and the Simonellis’ application. The stay imposed in that case should be imposed here as well.
[52] The delays were the same as in Simonelli, the circumstances were the same and the Applicants were all similarly situated as the Simonellis; it would be incongruous if a stay was not the remedy for these Applicants too.
[53] This is a troublesome issue. There is considerable force to the Applicants’ position. It is true that the Charter violations suffered by these Applicants and the Simonellis are no different. The systemic delays they were caught up in were the same delays. Intuitively, it appears that they stand in the same position. The only thing that is different is the timing of who got to the courtroom first with their application. The Simonellis’ application was heard on November 23, 2020 and the decision was released on January 15, 2021. The hearing for these Applicants was on April 27, 2021, five months after the hearing for the Simonellis and three-and-a half months after the decision staying the proceedings.
[54] Behind this timing difference is the reality that the record for this present application has changed from the application for the Simonellis. The continuing cycle of systemic delays was broken by the action taken immediately after the release of the Simonelli judgment. That enabled the Crown in this application to come to court professing that the problem has now been resolved, or at least mainly resolved. There has been a shift in the complacency which was evident on the Simonelli record. The threat that the disinterest in accused persons’ Section 11(e) rights could extend indefinitely has been defused.
[55] From a utilitarian standpoint, the salutary effect of a stay of proceedings has already been produced. A stay for these Applicants would not achieve anything that has not already been achieved. In these circumstances, that deprives the stay remedy of the major part of its purpose.
[56] There is no suggestion that the Applicants were unaware of the Simonellis’ application. No counsel mentioned during this hearing that they did not know about it or that there was some impediment in joining it. They would have if that was the case. The Simonellis and the Applicants were all arrested in the same project, Project Hobart. They were often remanded in court on the same day. The Applicants could have joined the application and simply ridden on Rafaelle Simonelli’s coattails. But, for whatever reason, they did not.
[57] Timing is vital not only in life but in the law. The Applicants’ timing was off. If there is unfairness here, it is the general unfairness of life, not a legally cognizable unfairness. This second argument on this application ultimately founders on the same issue as the first. The record has changed because, by the time this application was argued, the systemic bail delay problem had been addressed. The Applicants and the Simonellis are not, in the end, similarly situated.
[58] In conclusion, the continued prosecution of the Applicants does not amount to an abuse of process. The violation of their Charter rights, in the context of the previous ongoing systemic delay in lengthy bail hearings in Brampton, is nonetheless serious for the reasons elaborated on here and in Simonelli. It merits a substantial sentence reduction should the Applicants be convicted of any of the offences against them: R. v. Nasogaluak, 2010 SCC 6 (S.C.C.). It will be for the trial judge to implement this order: see e.g. R. v. Foster, 2018 ONCA 53, [2018] O.J. No. 488 (Ont. C.A.), at paras. 136-138. But a stay to put them on an equal footing with the Simonellis would be misconceived.
[59] Ms. Morrow on behalf of Mr. Markovic also argued that his abusive treatment while wrongfully placed in protective custody for several days at Maplehurst while waiting for his bail hearing warrants a stay of proceedings. In my view, this issue is better left to the trial judge to embark on after the conclusion of the trial. A trial judge, having listened to the evidence with respect to the offences alleged against Mr. Markovic, will be in a much better position to balance the public interest in prosecution against the violation of the Applicant’s rights: see e.g. R. v. Tran 2010 ONCA 471, 103 O.R. (3d) 131 (Ont. C.A.)
[60] The application is dismissed.
D. E. HARRIS J.
Released: July 30, 2021
Appendix A
| Name | Date LBH Set | 1st Date Offered by Defence | LBH Date | Total Delay | Net Delay |
|---|---|---|---|---|---|
| Alda’amsa, Ahmed | 2021-02-02 | 2021-02-01 | 2021-02-04 | 2 | 3 |
| Bailey, Jamari | 2021-01-18 | 2021-02-01 | 2021-02-01 | 14 | 0 |
| Chahil, Gurmeet | 2021-03-04 | 2021-03-04 | 2021-03-05 | 1 | 1 |
| Davis, Malakhi (1) | 2021-02-03 | 2021-02-05 | 2021-02-05 | 2 | 0 |
| Fargo, Yousif (9) | 2021-02-17 | 2021-02-23 | 2021-02-23 | 6 | 0 |
| Henry, Eliazar (10) | 2021-02-02 | 2021-02-15 | 2021-02-16 | 14 | 0 |
| Henry, Myles | 2021-02-09 | 2021-02-09 | 2021-02-10 | 1 | 1 |
| James, Jahiem (2) | 2021-02-09 | 2021-02-09 | 2021-02-09 | 0 | 0 |
| Kisun, Rakeshwar | 2021-02-16 | Not indicated | 2021-02-18 | 2 | <=2 |
| Krishnakumar, Aharsh | 2021-01-21 | 2021-01-25 | 2021-01-25 | 4 | 0 |
| Larose, Dejaunte | 2021-01-25 | 2021-01-26 | 2021-01-26 | 1 | 0 |
| Larose, Sage | 2021-01-20 | 2021-01-22 | 2021-01-22 | 2 | 0 |
| Layne, Marcolammar | 2021-02-17 | 2021-02-25 | 2021-02-25 | 8 | 0 |
| Lerose, Shannel (3) | 2021-01-21 | 2021-01-22 | 2021-01-22 | 1 | 0 |
| Lewis, Jamal | 2021-01-25 | 2021-02-04 | 2021-02-04 | 10 | 0 |
| Mastromatteo, Corey (4) | 2021-01-19 | 2021-01-20 | 2021-01-21 | 2 | 1 |
| Mohamad, Salim (5) | 2021-02-05 | 2021-02-08 | 2021-02-09 | 4 | 0-1 |
| Nanie, Gabriel | 2021-02-19 | 2021-02-26 | 2021-02-26 | 7 | 0 |
| Owusu-Prempeh, Felix | 2021-03-04 | 2021-03-04 | 2021-03-05 | 1 | 1 |
| Poku, Michael | 2021-02-22 | 2021-02-25 | 2021-02-26 | 4 | 1 |
| Sarkis, Adrian | 2021-01-29 | 2021-01-28 | 2021-02-01 | 3 | 4 |
| Saunders, Winward (8) | 2021-01-28 | 2021-01-28 | 2021-02-02 | 5 | 5 |
| Sawler, Todd | 2021-02-02 | 2021-03-01 | 2021-03-01 | 28 | 0 |
| Sidhu, Ravinder | 2021-02-08 | 2021-02-09 | 2021-02-09 | 1 | 0 |
| Singh, Sukhdeep (6) | 2021-02-02 | 2021-02-02 | 2021-02-05 | 3 | 3 |
| Tatham, Rodane | 2021-02-22 | 2021-03-01 | 2021-03-01 | 8 | 0 |
| Thivyanathan, Keezhakhan | 2021-02-08 | Not indicated | 2021-02-10 | 2 | <=2 |
| Thompson, Deven | 2021-01-19 | 2021-01-22 | 2021-01-21 | 2 | -1 |
| Whitfield, Trimaine | 2021-02-02 | 2021-02-11 | 2021-02-11 | 9 | 0 |
| Wice, Steven | 2021-02-01 | Not indicated | 2021-02-03 | 2 | <=2 |
| Wilson, Neil (7) | 2021-01-25 | 2021-01-29 | 2021-01-29 | 4 | 0 |
(1) Second day set for February 12 as per defence counsel’s availability
(2) Hearing subsequently rescheduled to February 23
(3) Hearing subsequently rescheduled to January 25 at defence request
(4) Continuation date set on January 27 for February 3
(5) Although the defence was available February 8, a preference for February 9 was expressed
(6) Hearing subsequently rescheduled to March 2 on February 22
(7) Hearing subsequently rescheduled to February 3
(8) Defence appears to have consented to February 2 after being notified that January 29 was available. See e-mails in Respondent’s Book of Materials
(9) No SBH Request form was completed for this matter. See e-mails in Respondent’s Book of Materials
(10) Defence counsel’s first available date of February 15 was a statutory holiday
COURT FILE NO.: CR-21-00000662-00MO & CR-21-00000745-00MO & CR-21-000006663-00MO & CR-21-00000664-00MO
DATE: 2021 07 30
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
ROBERT BARLETTA, DEJAN MARKOVIC, HABIBA KAJAN and GIOVANNI VISCONTI
ABUSE OF PROCESS RULING
D. E. HARRIS J.
Released: July 30, 2021