Court File and Parties

Court File No.: CR-22-1256 Date: 2022-04-22 Ontario Superior Court of Justice

Between: Her Majesty the Queen, Respondent – and – Victor Branco, Accused/Applicant

Counsel: K. Whillans, for the Crown/Respondent M. Worsoff, for the Accused/Applicant

Heard: April 22, 2022

Reasons for Judgment

Cornell J. (orally)

[1] This is an application for a stay of proceedings by the applicant on the basis that his s. 7 and 11(b) rights have been breached because the applicant’s bail hearing took place some 23 days after his arrest.

[2] The underlying facts of the charges have been summarized by the Crown in paras. 7 to 10 of its factum as follows:

7. On January 25, 2022 the Applicant and a co-accused, Devin Wilson, were stopped and arrested by police in Sudbury. The accused’s vehicle was searched incident to their arrest and the police seized 234.6g of suspected Fentanyl, $1,390 in Canadian currency, and a 9mm Glock 43 semi-automatic pistol.
8. At the time of his arrest the applicant was on an undertaking dated June 24, 2021 with conditions from the UCCM Police in M’Chigeeng First Nation for 3 counts of possession for the purpose of trafficking cocaine, methamphetamine & fentanyl, and possession of property obtained by crime.
9. At the time of his arrest on January 25, 2022 the Applicant had outstanding warrants from July, October and November of 2021 at M’Chigeeng First Nation as well as outstanding grounds for charges from December of 2021 and January of 2022.
10. On January 26, 2022 a Controlled Drugs and Substances Act search warrant was executed at the applicant’s residence at 2-338 King Street, Sudbury and police seized 555.2g of cocaine. The accused was charged with possession of cocaine for the purpose of trafficking as a result. In total, the Applicant has eleven outstanding charges, including those of January 25 and 26, of 2022.

[3] The applicant first appeared in bail court in Sudbury on January 26, 2022, on which date the matter was adjourned, as there was an indication that a special bail hearing would have to be held.

[4] Given availability issues under the OCJ Protocol re: Bail Hearing and Discretion for Scheduling Special Bail Hearings, the matter was ultimately set down for a bail hearing on February 17, 2022. Mr. Branco was denied bail at that hearing.

[5] The delay in bail and adjournments contrary to the Criminal Code of Canada in s. 516 that permits adjournments longer than 3 days only with consent of the accused are said to ground this application.

[6] The accused asserts that the delay in his bail hearing was due to a systemic problem in Sudbury. Is there a system problem in Sudbury? The only evidence of that is an e-mail exchange between counsel for the applicant and the Sudbury trial coordinator:

Any length of time special bail hearings normally take to be heard?

Worsoff, M.

Generally, it takes between 1 to 2 weeks to schedule the SPBH from the time I receive the report from the RSJ’s office. This is dependent on the availability of defence counsel and the Crown, as well as the availability of a courthouse to host the SPBH.

Sarah

[7] I have no evidence before me to actually explain the reason why special bail hearings actually take 1 to 2 weeks in Sudbury, but according to the email response, the availability of defence counsel is the first reason listed. The email is in and of itself insufficient to establish institutional delay. That being the case, why is this court engaged with this issue at this stage?

[8] In my respectful view, the weight of authority is that this court at this stage should decline to hear Charter applications such as these except in extraordinary circumstances.

[9] Such circumstances can arise where the trial court is out of reach and doing nothing and as a result it would compound breaches of Charter rights, or in the case where the trial court is causing the breach. Neither of those situations exist in this case at this stage.

[10] It is best to let the process play out in the ordinary course so that a trial court can determine the facts of any alleged Charter breach on a full record and consider the seriousness of the charges so that interlocutory proceedings and appeals can be avoided.

[11] The Supreme Court of Canada in R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 SCR 575, at para. 79 said:

Indeed, a superior court is compelled to decline jurisdiction to issue Charter relief, unless "it is more suited than the trial court to [page614 ] assess and grant the remedy that is just and appropriate": R. v. Rahey, 1987 SCC 52, [1987] 1 S.C.R. 588, at p. 603;

This broad remedial jurisdiction is necessary to prevent frequent resort to superior courts to fill gaps in statutory jurisdiction, and to ensure that the remedy that ultimately flows is in fact both appropriate and just.

[12] The Court of Appeal in R. v. Johnson, 1991 ONCA 7174, [1991] O.J. No. 481, at para. 7 said:

These cases dictate that issues, including those with a constitutional dimension, which arise in the context of a criminal prosecution should routinely be raised and resolved within the confines of the established criminal process which provides for a preliminary inquiry (in some cases), a trial, and a full appeal on the record after that trial.

[13] In Regina v. Mincovitch, 1992 ONSC 7585, 10 O.R. (3d) 469:

This is not a case like Smith, supra, where the Supreme Court of Canada deferred to the discretion exercised by Darichuk J. to hear and determine the Charter issue where there was no dispute about the reasons for delay, there was a clear continuing Charter breach, and the refusal to hear the motion would have led in the circumstances to much further delay. In this case the reasons for delay are sharply disputed, the existence of a Charter breach is far from clear on this record, and the delay in proceeding has been caused by this very motion itself, in the sense that the preliminary inquiry would have been completed last month were it not for this motion.

Nor is this a case like Rahey, supra, where the trial court was an inappropriate forum because the Charter violation was caused by the court itself.

The Supreme Court of Canada and the Court of Appeal have consistently preferred the trial court to resolve Charter applications because trial courts are best suited to resolve conflicting viva voce evidence and because of the great risk of delay and fragmentation of the trial process inherent in the likelihood of interlocutory appeals.

[14] The Court of Appeal in R. v. Zarinchang, 2010 ONCA 286, 99 O.R. (3d) 721 (C.A.), at paras. 60-61 said:

However, the "residual category" is not an open-ended means for courts to address ongoing systemic problems. In some sense, an accused who is granted a stay under the residual category realizes a windfall. Thus, it is important to consider if the price of the stay of a charge against a particular accused is worth the gain. Does the advantage of staying the charges against this accused outweigh the interest in having the case decided on the merits? In answering that question, a court will almost inevitably have to engage in the type of balancing exercise that is referred to in the third criterion. It seems to us that a court will be required to look at the particulars of the case, the circumstances of the accused, the nature of the charges he or she faces, the interest of the victim and the broader interest of the community in having the particular charges disposed of on the merits.

Thus, in our view, a strong case can be made that courts should engage in the balancing exercise set out in the third criterion in most cases coming within the residual category.

[15] If the matter proceeded to the point that the balancing exercise need be undertaken, that is a process that is best left to the trial judge who can undertake that exercise in a fulsome manner on a full record.

[16] Apart from the lack of complete record, there is a further problem at this stage. A stay is a remedy of last resort. That is the only remedy available should it be found at this stage that a Charter violation has occurred. The trial judge would have other remedies available such as a reduction in sentence should Mr. Branco be found guilty.

[17] In this particular case, the trial court may also need to consider whether reasonable bail was denied “without just cause” given the exigencies created by the COVID pandemic.

[18] Mr. Branco is facing a host of very serious charges. Society has an interest in seeing that those charges are considered on the merits. Mr. Branco has an interest in seeing that his Charter rights are not violated. These important and competing considerations are best left to the trial judge to sort out.

[19] Mr. Branco has been denied bail. If there was a breach of his right to reasonable bail, the effect on his personal right to liberty has been notional at best. There is a dispute about the facts. Given his detention and this dispute and on the evidence before me, I conclude that there are no urgent or exceptional circumstances that would warrant this court dealing with the matter at this stage.

[20] For these reasons, the application is adjourned to be considered by the trial judge.

The Honourable Mr. Justice R. Dan Cornell Released (orally): April 22, 2022