COURT FILE NO.: CR-21- 5/3465/346 DATE: 20230503 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Adil Zeno

BEFORE: Justice N. J. Spies

COUNSEL: Paul Zambonini and Michael Townsend, for the Crown John Fitzmaurice and Neil Fitzmaurice, for the Defence

HEARD: March 3, 2023

RULING ON DEFENCE Charter APPLICATION TO STAY

Introduction

[1] On January 27, 2023, following a trial before me without a jury, I convicted Adil Zeno of being an accessory after the fact to the murder of Jonathan Gayle, contrary to s. 240 of the Criminal Code, see R. v. Zeno, 2023 ONSC 699. His sentencing hearing was scheduled for March 3, 2023.

[2] On February 17, 2023, I received an email from Mr. Fitzmaurice, counsel for Mr. Zeno, that was copied to Mr. Zambonini, counsel for the Crown. In that email Mr. Fitzmaurice advised me that he intended to bring an application for a post-verdict stay of proceedings pursuant to ss. 7 and 24(1) of the Charter based on abuse of process by the Crown. He stated that this necessitated an adjournment of the sentencing hearing to allow time to secure funding for the application from Legal Aid and to prepare the application itself.

[3] I was advised in the same email that the position of Mr. Zambonini was that there should be no adjournment of the sentencing hearing in that a stay application had no possibility of success and that it should be dismissed on a summary basis. It was also Mr. Zambonini’s position that the Defence should be required to provide a factual and legal basis on which the stay should be granted, and that counsel was not entitled to proceed immediately to a voir dire on the issue, relying on R. v. Kutynec, 7 O.R. (3d) 277 (Ont. C.A.).

[4] Mr. Fitzmaurice did not agree with this position but did file a detailed factum in advance of the hearing setting out particulars of the alleged abuse of process by the Crown and the evidence he would seek to call on the application. He clearly had all the information he needed in order to put his best case forward for the remedy sought.

[5] In response to this email, I advised counsel that on March 3, 2023 I would consider the Crown’s position that the proposed Defence application was without merit and had no chance of success, and that if I agreed with the Crown position, that the sentencing hearing would proceed as scheduled. I also stated that if I was not satisfied that the Defence application had no merit, that we would determine how to proceed and that the sentencing hearing would not proceed as scheduled.

[6] On March 3, 2023, I had written submissions from Mr. Fitzmaurice and Mr. Zambonini, and I heard their oral submissions. After receiving those submissions, I dismissed the Defence application for a stay, and the sentencing hearing proceeded [1]. I advised counsel that I would provide written reasons for my decision. These are those reasons.

The Defence Application to Stay this Proceeding

[7] The Defence application to stay this proceeding was based primarily on the allegation that it was abusive of the Crown to attempt to prosecute Mr. Zeno as well as three others for the murder of Faysal Hees based on what is characterized as “transparently false confessions” by Mr. Zeno to murdering Mr. Hees (the “Hees confessions”). It is submitted that this alleged abuse by the Crown as well as other alleged abuse by the Crown, warrants a stay of Mr. Zeno’s conviction of accessory after the fact for murder, for assisting Messrs. Adem and Ahmed escape the neighbourhood, following the unrelated murder of Mr. Gayle.

[8] None of the alleged abuse took place in connection with the charge before this court, save for alleged abuse by the Crown in refusing to consent to Mr. Zeno’s request for bail and then a bail variation in this proceeding before me, which I will come to.

[9] There was absolutely no connection between the murder of Mr. Hees and Mr. Gayle. The only connection was that in statements made to the undercover officers who testified in the case before me, Mr. Zeno confessed to being the person who murdered Mr. Hees and to being an accessory after the fact to the murder of Mr. Gayle. There was considerable evidence before me during the trial of Mr. Zeno about the Hees Confessions and why they were false confessions, led by the Defence in an effort to persuade me that I should not rely on the confession Mr. Zeno made to being an accessory after the fact to the murder of Mr. Gayle (the “Gayle confession”). This evidence and my conclusions with respect to this evidence are set out in my judgment; R. v. Zeno, 2023 ONSC 699. With respect to the Hees confession, I found as follows, at para. 124 of my judgment:

The problem with this submission is that although I do find that the confessions made by Mr. Zeno to the murder of Mr. Hees have significant internal inconsistencies and external inconsistencies when compared to known facts, I cannot conclude that he was not involved in the murder and simply happened to be in the wrong place on the wrong day.

[10] All the evidence and submissions that I heard as to why I should not rely on the Gayle confession that were based on why the Hees confessions were false, were repeated in the Defence factum filed on this stay application.

The Law

[11] In the factum filed by Mr. Fitzmaurice on the stay application, I had a very detailed summary of the nature of the alleged abuse of process by the Crown, and the evidence relied upon in support of the stay application. Armed with this information, the trial judge can weed out the applications which have no basis in fact or law and can decide how and when those with potential merit should be resolved: see Kutynec at para. 35. I proceeded on the basis that armed with this information, I could determine whether or not the stay application had any possibility of success.

[12] I accepted, as Mr. Fitzmaurice submitted, that at this stage, Mr. Zeno did not bear the onus of establishing the truth of any fact alleged or that the facts would necessarily result in the remedy sought. Rather, “this assessment is based on the assumption that the allegations advanced in the proposed application could be proven”, relying on R. v. Haevischer [2], 2021 BCCA 34, [2021] BCJ No 331 at para. 373 [3].

[13] The other case applicable to this hearing is R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, where the court set out a number of applicable principles including the following, at paras. 30-33:

a) A stay of proceedings is the most drastic remedy a criminal court can order because it permanently halts the prosecution of a defendant, at para. 30.

b) Nonetheless, this Court has recognized that there are rare occasions - the "clearest of cases" - when a stay of proceedings for an abuse of process will be warranted. These cases generally fall into two categories: (1) where state conduct compromises the fairness of a defendant's trial (the "main" category); and (2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the "residual" category), at para. 31.

c) The test used to determine whether a stay of proceeding is warranted is the same for both categories and consists of three components:

i) There must be prejudice to the defendant's right to a fair trial or the integrity of the justice system that "will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome”;

ii) There must be no alternative remedy capable of redressing the prejudice; and

(iii) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interest that society has in having a final decision on the merits" at para. 32.[Emphasis added]

Analysis

[14] Like the case in Haevischer, the case at bar clearly does not fall into the main category set out in Babos. The issue then is the application of the residual category.

[15] As I advised Mr. Fitzmaurice during his oral submissions, in my view, paras. 35 to 38 of Babos make it clear that the impugned conduct must be related to the proceeding before the court, in this case, Mr. Zeno’s charge of accessory after the fact to the murder of Mr. Gayle. As such, a stay application based on alleged misconduct by the Crown in a totally different proceeding could not possibly result in a stay of the proceeding before this court.

[16] As a matter of law, Mr. Fitzmaurice was not able to provide a single case to support his position that I should consider alleged abusive conduct by the Crown in a totally different proceeding in support of a Charter remedy in the case at bar. In essence, by requesting a stay of this proceeding, Mr. Zeno was asking for what would amount to an acquittal of the very serious charge of accessory after the fact to murder even though none of the alleged abuse impacted the trial before me, and not withstanding my finding him guilty of this charge.

[17] Mr. Fitzmaurice also alleged that the Crown wrongly prosecuted three others; Ms. Ibrahim, Mr. Duale, and Mr. Siyad based on Mr. Zeno’s “patently false confessions,” including a confession implicating Mr. Duale and Mr. Siyad that was tainted by police misconduct. This allegation cannot be considered in support of Mr. Zeno’s stay application because Mr. Zeno has no standing to assert a claim for alleged abuse and breach of the Charter on behalf of others, especially where they were charged in a different proceeding that was totally unrelated to the proceeding before this court.

[18] The only alleged abuse by the Crown that occurred in the proceeding before me was the fact that the Crown did not consent to Mr. Zeno’s release after he was discharged on the charge of the murder of Mr. Hees in August 2021, and the Crown opposed a bail variation in March 2022. It is alleged that at both times, Mr. Zeno was in a “time served” position on the charge of accessory after the fact to the murder of Mr. Gayle even if convicted. Mr. Fitzmaurice did not provide any case where any remedy was given on this basis, and in my view, if such a remedy were possible it would be with respect to sentence. In any event, in this case Mr. Zeno was released on bail after he had a bail hearing and his bail variation was also granted, so it is entirely unclear how this constitutes an abuse of process or that he has suffered any harm.

[19] In a related argument made by the Defence of alleged abuse by the Crown, it is argued that the Crown’s decision to bring:

an obviously meritless prosecution for murder against Mr. Zeno and arbitrarily opposing Mr. Zeno’s reasonable request for bail, cumulatively resulted in Mr. Zeno serving far more time in prison than he should have, as is set out in detail in the Applicant’s submissions on sentence. Therefore, the only issue that realistically remains is whether the Crown will succeed in further punishing Mr. Zeno beyond what he deserves by having a conviction registered. A conviction will make it more difficult for Mr. Zeno to find employment, travel, or do any of the multitude of other activities where a criminal record may interfere. Conversely, as the registering of a conviction is the only punishment still available, preventing the registering of a conviction through a stay of proceedings is the only available remedy.

[20] In my view, at its highest, I can only consider the conduct of the Crown in the case before me in sentencing Mr. Zeno. Any time Mr. Zeno spent in custody when he was charged with the murder of Mr. Hees is not time in custody that I could give him credit for. As I have already set out, the Crown’s position on bail had no impact on the time Mr. Zeno spent in custody. Furthermore, no claim was made at Mr. Zeno’s sentencing hearing for a Downes credit. Before me, counsel agreed that Mr. Zeno had a Summers credit for pre-sentence custody of 44 months. I imposed a sentence of one day in jail in addition to pre-trial custody of 30 months and seven days credited as 44 months, finding that Mr. Zeno had served his sentence without consideration of any mitigation for the conditions of his incarceration during Covid pursuant to Duncan. I see no basis on which the time Mr. Zeno served in custody on the charge of accessory after the fact to the murder of Mr. Gayle could justify a Charter remedy or impact on the sentence I should impose on Mr. Zeno.

[21] Furthermore, as I advised Mr. Fitzmaurice during oral submissions, he could not meet the second prong of the Babos test in that there is an alternate and better remedy available. In my view, the place for Mr. Zeno to have pursued a Charter remedy for any alleged misconduct on the part of the Crown in the proceeding against him for the murder of Mr. Hees, either as a defendant or as a witness, was in that proceeding where the alleged abuse of process occurred. If his claim of abuse has any merit, the appropriate remedy would be to seek a remedy in that proceeding, which could include a claim for damages from a court of competent jurisdiction.

Disposition

[22] For these reasons, having found there was no possibility of success of the stay application as a matter of law, I dismissed the application by Mr. Zeno for a stay of this proceeding and proceeded with his sentencing hearing.

SPIES J. Date: May 3, 2023

[1] I sentenced Mr. Zeno on March 3, 2023, and gave written reasons; see R. v. Zeno, 2023 ONSC 1636.

[2] Mr. Fitzmaurice referred to this case as R. v. Johnston.

[3] As I was preparing these written reasons, the Supreme Court of Canada released its decision affirming the decision from the British Columbia Court of Appeal, R. v. Haevischer, 2023 SCC 11. As I had already given my decision orally on March 3, 2023, I have not considered the impact of this decision, if any, on that decision in these reasons.