Court File and Parties

Court File No.: CR-22-30000101-0000 Date: 2023-11-23 Superior Court of Justice - Ontario

Re: R. v. Thornell SHAH

Before: Schreck J.

Counsel: D. MacAdam, for the Crown G. Gross-Stein, for Mr. Shah

Heard: November 23, 2023

Endorsement

[1] Thornell Shah pleaded guilty to a number of charges on September 5, 2023 and his matter was adjourned to November 20, 2023 for sentencing. Mr. Shah was on bail at the time of his plea, but was subsequently arrested on new charges. As a result, he was confined at the Ottawa-Carleton Detention Centre (“OCDC”) on November 20. I am advised by counsel that upon learning this, they arranged to have Mr. Shah appear in court by videoconference.

[2] At counsel’s request, the hearing on November 20 was scheduled to begin at 11:30 a.m. At 11:08 a.m. on that date, the Registrar received an e-mail from an individual employed at the OCDC identified as “Gary” which stated:

We can provide the accused this afternoon at 1300hrs/ 1330hrs/1400hrs/1430hrs. Let us know which time works best.

At my request, the Registrar contacted the OCDC and advised them that court was scheduled to begin at 11:30 a.m. and that I was ordering that Mr. Shah appear by videoconference at that time. The Registrar was advised that the institution refused to comply with this order. The Registrar asked for someone from the institution to appear by video at 11:30 a.m. to explain why the Court’s order was not being complied with. That request was refused.

[3] As a result of the OCDC’s refusal to produce Mr. Shah by videoconference at the appointed time, I adjourned the matter to November 23, 2023 and I ordered that Mr. Shah be brought to court in person. A judge’s order was sent to the OCDC on November 20. On November 22, I was advised by the Criminal Trial Office that the OCDC had requested that Mr. Shah appear by videoconference instead. I declined this request and reiterated that Mr. Shah was to appear in person. I am advised that this was communicated to the OCDC.

[4] Mr. Shah was not brought to court on November 23 and it appears that he is still at the OCDC. I have received no explanation for why my order that Mr. Shah appear by videoconference at 11:30 a.m. on November 20 was not complied with, or why my order that he appear in person on November 23 was not complied with.

[5] In R. v. Peel Regional Police Service (2000), 149 C.C.C. (3d) 356 (Ont. S.C.J.), at para. 102, Justice Hill of this Court stated:

Criminal court proceedings commence, or recommence, when scheduled by the independent judiciary. Whether the scheduled times are the product of court order, direction, request, or convention, the executive branch, with responsibility “to escort and convey persons in custody”, are obliged to deliver the prisoner when required by the court. This commands the executive branch to produce an in-custody accused at the time set by the court or without unreasonable delay when the court calls for the production of the prisoner. Respect for the role and authority of the judiciary is one of the foundations of the rule of law. Refusal to produce in-custody accused within the identified expectations of the court amounts to disrespect for, and a challenge to, the independent authority of the court. [Emphasis added, citations omitted].

[6] The court is owed an explanation in this matter. I order that the Superintendent or a Deputy Superintendent from the OCDC appear before the Court on Tuesday, November 28, 2023 at 9:30 a.m. to provide such explanation. The appearance may be made by videoconference.

[7] I direct that a copy of this endorsement be forwarded to the Office of the Superintendent at the OCDC.

Schreck J. Date: November 23, 2023