Court File and Parties

Court File No.: CR-24-1184 Date: 2025-09-25 Ontario Superior Court of Justice

Between: His Majesty the King – and – Salomon Bashir

Counsel:

• S. Kim and M. Dean, for the Crown
• L. Giordano and I. McCuaig, for Mr. Bashir

Heard: September 18, 19, 2025

Before: G.B. Gambacorta, J.

Mid-Trial Ruling – Application Pursuant to Section 7 and Section 24(1) of the Charter

These Reasons were given orally on September 22, 2025. Where these Reasons and the ones given orally differ, these written Reasons are to take precedent.

Overview

[1] This is an application for a stay of proceedings for late disclosure and abuse of process on a murder charge.

[2] The accused, Salomon Bashir, stands charged with the murder of Everton Frost on December 11, 2022, contrary to section 235(1) of the Criminal Code of Canada, R.S.C. 1985, c. C-46. He was arrested on July 5, 2023, and has been in custody since. On the morning of September 8, 2025, the first day of Mr. Bashir's jury trial, his counsel advised the court that an application for a stay of proceedings pursuant to section 7 and section 24(1) of the Canadian Charter of Rights and Freedoms would be forthcoming in light of a lack of disclosure related to cell phone tower evidence and corresponding witnesses placed on the Crown witness list on the eve of trial. It was agreed that the jury would be selected and then excused pending the outcome of the application.

[3] The following day, September 9, 2025, Mr. Bashir brought his first application related to the lack of cell tower and witness will say disclosure. After hearing Mr. Bashir's submissions, Crown counsel asked for the night to respond to the application in writing. The Crown advised the court that they would be relying on the decision of R. v. Hamilton, 2011 ONCA 399, to tender the cell tower evidence which they characterized as 'factual', not expert evidence. The relevant cell tower witness disclosure remained outstanding as did any cell tower map evidence.

[4] On September 10, 2025, the court learned that Mr. Bashir had filed a supplementary notice of application for a stay of proceedings based on new DNA disclosure provided by the Crown after court on September 9, 2025, via email. The late DNA disclosure was a convicted offender hit notification from the Centre of Forensic Sciences ("CFS") dated January 7, 2025, identifying the victim's brother's DNA on what the Crown alleges was a mask worn by the murder suspect. The disclosure also included police officer notes dated April 8-13, 2025, related to the police investigation of that DNA hit evidence.

[5] The Crown filed their notice of response related to the first application on the morning of September 10, 2025 but did not respond to Mr. Bashir's supplementary notice of application. Appreciating the significance of the late DNA disclosure, the Crown (orally) invited the court to enter a mistrial and to direct the parties to the Superior Court trial coordinator's office to reschedule the matter. Counsel for Mr. Bashir requested the opportunity to perfect his supplementary notice of application for a stay of proceedings, given the late breaking developments in disclosure and their hurried filing in the night, and asked for a timetable to be set by the Court for a Crown response and for the application to be heard.

[6] In light of what had transpired, I set a timetable for the filing of materials and for argument related to Mr. Bashir's supplementary notice of application. The jury was adjourned to 11:00 a.m. today, Monday, September 22, 2025, and will be discharged after my ruling. Having reviewed the materials filed on Mr. Bashir's original and supplementary notices of application and the Crown's notices of response and having received the submissions of both parties, these are my reasons for decision.

[7] The primary issue before me is whether the only just and appropriate remedy capable of redressing the prejudice to Mr. Bashir is a stay of proceedings.

Position of the Parties

[8] Mr. Bashir argues that a lack of relevant cell tower disclosure, which is still not entirely disclosed, and other mid-trial DNA hit notification disclosure has impaired his right to a fair trial, and to make full answer and defence, pursuant to section 7 of the Charter. Moreover, he points to a pattern of Crown conduct throughout his trial process which fails to align with the duties and obligations of the Crown, shows disregard for fundamental notions of fairness, and compromises the integrity of the justice system. Mr. Bashir argues that this conduct rises to the level of an abuse of process. As a result of the cumulative prejudicial effect on his right to a fair trial and the resulting prejudicial impact to his section 11(b) Charter right, Mr. Bashir contends that the only appropriate and just remedy capable of redressing the prejudice he has occasioned is a stay of proceedings.

[9] The Crown recognizes and concedes that the untimely mid-trial disclosure of the DNA hit notification violated Mr. Bashir's section 7 Charter rights, but they insist that the violation was inadvertent and can be remedied by an adjournment of the proceedings. As a jury has been selected and placed in charge, the only practical remedy to achieve an adjournment at this stage would be to declare a mistrial. However, the Crown maintains that Mr. Bashir has not established an abuse of process which warrants a stay of proceedings – an extreme remedy, reserved only for the clearest of cases.

[10] I accept the procedural history of this case as filed by Mr. Bashir, and as supplemented by the parties' email correspondence as an accurate depiction of the events. This trial was set 26 months post arrest and clearly falls within the 30 month presumptive ceiling in R v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. This timeline is conceded by the parties to be accurate and it is agreed that Mr. Bashir acted expeditiously by taking the first available dates in the Superior Court for judicial pre-trial ("JPT"), pre-trial motions and a four-week jury trial. Therefore, I do not propose to conduct a date-by-date analysis of the record. Suffice it to say, my review of the dates of each step taken by the defence to move the matter forward expeditiously demonstrates that Mr. Bashir acted with dispatch. It is agreed that Crown action – untimely disclosure – is responsible for Mr. Bashir's inability to proceed to trial before me on Sept 8, 2025, and any resultant delay would be attributable to the state.

[11] Nevertheless, I find that Mr. Bashir's section 11(b) Charter right to a trial within a reasonable time factors into the assessment of the just and appropriate remedy. Mr. Bashir has been in custody awaiting trial since his arrest on July 5, 2023 – over 26.5 months to date.

Cell Tower Evidence

[12] The Crown disclosed 15 different business records obtained during this murder investigation. They included eight production orders for various cellphones, transmission data recorder results, business records, tower dump results from four service providers and for test calls initiated by police, and SOLGEN GPS ankle monitor data.

[13] To date, I am advised that the Crown has not served any notice of intent to introduce any of these records into evidence as a business record pursuant to section 30(7) of the Canada Evidence Act, R.S.C., 1985, c. C-5. Furthermore, many of these records did not form part of the JPT form created by counsel for the January 16, 2025 JPT used to identify potential legal issues, the nature of the evidentiary applications being brought by the Crown and defence, and to inform proper time estimates for pre-trial applications and trial.

[14] Yet, there was an awareness by the Crown at the time of the January 2025 JPT that a cellphone analyst would be required and potentially opposed. At paragraph 21 of the JPT form the Crown indicated an intention to introduce text messages or electronic communications through a cellphone analyst with the defence indicating opposition to the same. While four experts were noted as being called by the Crown, a cell phone expert was not among them. Parenthetically, the Crown also indicated on the form they were not seeking to admit other disreputable conduct or extrinsic misconduct evidence of the accused.

[15] Moreover, the cell phone tower evidence in this case is complex and potentially equivocal without explanation. The police made test calls in the hopes of replicating the tower connectivity data of the phone associated to the murder suspect. However, the test call data does not replicate that of the suspect phone. In fact, in some instances it connects at a tower almost five kilometers from that of the suspect phone. I agree with the defence that the evidence is confusing without explanation and will likely require opinion evidence. I disagree with Crown counsel that it could be introduced with an explanation of the general rule and its exceptions, without opinion, and open to the defence to attempt to reduce its probative value through cross-examination.

[16] I reject the Crown's submission for two reasons. Firstly, evidence which can be confusing for a jury and lacks probative value should not be led by the Crown because it is then useless to the Crown's case and a waste of court resources. Secondly, it runs the risk of misapplication by the jury which will inure to the prejudice of the accused permitting the prejudicial effect to outweigh any probative value. The problematic nature of this cell phone tower evidence is not new or something that required contemplation.

[17] On September 8, 2025, the first day of trial, defence advised the court that they had learned on Friday, September 5, 2025 that the Crown intended to call three telecom witnesses to explain the cellphone evidence. Although, there had been no disclosure of the Crown's anticipated witness evidence or cell phone tower maps to inform the anticipated evidence and explain the data. The Crown took the position that they were relying on the 2011 ONCA decision in R. v. Hamilton and the general rule related to cell phone tower connectivity, and its exceptions. However, the Crown had not even requested any will says from the witnesses until after the issue arose on the first day of trial. Furthermore, they did not request the necessary cell tower map evidence from the associated service providers until September 10, 2025, the third day of trial. This request was ultimately denied by the service providers on that date.

[18] On September 15, 2025, Freedom Mobile provided their cell tower data which was then disclosed to the defence. On September 19, 2025, at the completion of argument on this application for a stay, the Rogers cell tower data remained outstanding. After adjourning the matter to today for reasons, the Crown proffered and requested that the court sign a draft order to compel Rogers to produce it.

The DNA Hit Notification

[19] During their investigation, the police recovered several items along a set of train tracks which were believed to have been cast off by the suspect in making his escape on the night of the murder, including a surgical face mask, a jacket, bullet and a gun.

[20] After court on September 9, 2025, the defence received DNA disclosure from the Crown of a convicted offender hit notification from the CFS dated January 7, 2025, identifying Donovan Frost's DNA on the recovered face mask. Donovan Frost is the brother of the deceased in this case and the person to whom the getaway car used by the murder suspect was registered.

[21] On December 3, 2024, the deceased's brother was convicted of a primary designated offence for DNA purposes. As a result, he was ordered to provide a DNA sample to the databank. On January 2, 2025, the CFS sent a copy of a convicted offender hit notification with an attached RCMP notification dated December 31, 2024, to the Hamilton Police Service in relation to the surgical face mask submission in this investigation. On January 7, 2025, the document was uploaded to the police NICHE system at 11:20 a.m. and delivered to Sgt. Ebert's NICHE task box at 11:30am that same day.

[22] According to Sgt. Ebert's records, he and the Officer-in-Charge Tsuchida would have become aware of the DNA notification at some point between January 7, 2025 and April 2, 2025 and made efforts to follow up on the information. On April 8, 2025, Sgt. Ebert sent an email to the two Crown attorneys assigned to this case and Officer Tsuchida, with Sgt. Sara Beck copied, revealing the content of the DNA hit notification and advising that police have been making efforts to get a consent DNA sample from Donovan Frost.

[23] There is no evidence before me of any Crown or police action to disclose the actual DNA hit notification to defence counsel. More specifically, the record is devoid of any explanation of how such critical information could remain undisclosed. The only explanation being proffered by the Crown during argument is that the inaction was due to inadvertence and that Crown's don't do that.

[24] While it may be that there are others tasked within the Crown's office to vet and facilitate disclosure to the defence, disclosure is clearly an important function of the Crown's role. On the record before, there isn't any evidence of a response by the Crown to Sgt. Ebert's email, asking him to forward a copy of the notification and any notes to the Crown's office for disclosure, or any correspondence with defence counsel of the notification.

[25] Since April 8, 2025, Crown and defence counsel were in court together for confirmation of the pre-trial motions, the actual pretrial motions, and have had a meeting and communicated by email for various reasons as set out in the procedural history log.

[26] It wasn't until the second day of trial, after Mr. Bashir's first notice of application for a stay of proceedings was argued in relation to the cell tower evidence, that Crown counsel discovered that the DNA notification had not been disclosed to the defence. The record indicates that Crown counsel's realization came, on September 9, after receiving Officer Tsuchida's notes from April 8-13, 2025, related to the investigation of the January 2, 2025, DNA hit notification. After reviewing disclosure, Crown counsel had a meeting with Sgt. Ebert and confirmed that the DNA hit notification had never been disclosed. They emailed the notification to the defence at 3:21 p.m. and, at 5:11 p.m., emailed the related April investigation notes of Officer Tsuchida.

[27] The affidavit of Kendra Puckering indicates that Crown Counsel believed that the notification had been disclosed. However, the affidavit neither offers supporting reason or evidence for that belief, nor foundation for counsel to have formed that belief, if they did not receive the notification or take steps to inquire about or action it.

Crown Conduct and Attitude Towards the Prosecution Generally

JPT and Pre-Trial Motions/Applications

[28] On January 13, 2025, three days before the JPT, defence counsel emailed Crown counsel advising them that they had not received the Crown's Form 17, which the defence needed to complete. To comply with the Central South filing deadline for pretrial forms, it should have been completed and filed with the court no later than four days before the scheduled JPT. The Crown had not served it on defence in time for the parties to meet the filing deadline. While the JPT was held, this could have resulted in the JPT not proceeding and an attribution of delay to the Crown. Either way, it serves to illustrate the lack of diligence and attention shown to this prosecution, the process and the responsibilities of the Crown's role.

[29] On July 2, 2025, I presided over the pre-trial motions/applications in this case. I received a section 8 application from Mr. Bashir, related to an ITO and the search of cellphones seeking the exclusion of evidence, and another notice of application to exclude prejudicial extrinsic misconduct evidence of the accused contained in cellphone communications. The Crown had not filed an application to introduce other discreditable conduct or extrinsic misconduct evidence of the accused.

[30] This is what precipitated what has been referred to by the defence as the "Admonition by the Court" at the pretrial motions. After ruling on the first application, I expressed a concern about the lack of a Crown notice of application to introduce the otherwise inadmissible evidence in the first place. This was also a category of evidence that the Crown had indicated on the JPT form was not being pursued. After the parties advised me that they could resolve the second application through mutual co-operation, I took the opportunity to remind the parties that they have an obligation to discuss any legal issues around the admissibility of evidence before trial to avoid trial disruption and delay, especially where a jury is impacted.

Witness List Arguments

[31] There were lengthy submissions by Crown and defence regarding late changes to the former's witness lists. I do not feel the need to address the bulk of these arguments received. Both sides agree that it does not form part of any Crown obligation of disclosure beyond collegiality and organization and is subject to modification as the Crown deems necessary to prove its case.

[32] However, it seems important to clarify that, without stated admissions by the defence, the Crown maintains the strict burden of proof and must be prepared to proceed to prove the necessary elements of each charge. I do not see on the record before me evidence that the defence is responsible for resiling from admissions which triggered or contributed to the delay arising from the untimely Crown disclosure. The record in fact shows that the Crown only inquired about admissions necessary to organize their witness list and case immediately before the commencement of the trial.

Crown's Position on Cell Tower Data

[33] Then, there is the unreasonable position taken by Crown counsel on the admissibility of the cell tower data and Crown reliance on the ONCA decision in R. v. Hamilton. The Crown's position was untenable because in Hamilton the Ontario Court of Appeal upheld a trial ruling based on a different factual record (evidence) than was even in the Crown's possession at the commencement of this trial, and parts of which still remain outstanding and form part of the section 7 Charter violation in this case, as I will explain. I find the position the Crown took at the commencement of this trial to have been ill-considered and a means of trying to patch the case as it went along because it was missing the evidence it needed to prove the records. There is support for this finding in the September 15, 2025 email from the Crown to defence counsel which only then acknowledges the Crown obligation to produce the cell tower evidence. Needless to say, the Crown acted far too late to be prepared to start and prove their case with the circumstantial and complex evidence that relates to the cell phone records. The order they asked me to sign, as I was exiting court on Friday Sept. 19, 2025, to compel Rogers to produce the requisite evidence should have been a forethought not an afterthought.

Conclusions on Crown Conduct and Attitude

[34] What has transpired in this case – the discovery of missing evidence required to prove their case, untimely late disclosure and the discovery of undisclosed relevant DNA information long in the possession of the police and within the knowledge of the Crown – has largely been the result of indifference and late preparation for trial by the Crown. This has become clear to me through the submissions of counsel, supported by the procedural history record, and the timing and nature of email exchanges between counsel. To be clear, I am not satisfied that there is any evidence of malicious or nefarious conduct on the part of the police or Crown counsel. However, I find that there has been a negligence and apathy displayed by the Crown towards their role and responsibility in this murder prosecution.

[35] It is trite to say that murder is amongst, if not considered the most serious offence in the Criminal Code of Canada. If diligence, attention and appropriate resources are not afforded to such prosecutions, then the system we uphold will have failed.

[36] This finding is further supported by the lack of any meaningful Crown response to the applicant's claim of prejudice to his section 11(b) Charter right arising from an abuse of process by the Crown. This is another example which serves to highlight the indifferent and lackadaisical attitude. This claim is included to support and to inform the abuse the applicant argues has occurred at the hands of the Crown. Instead of responding to this claim, the Crown suggest that this is a concern which should be addressed down the road. I find that this choice to not respond is reflective of the same apathy and abdication of responsibility with which Crown counsel have approached their prosecutorial function generally and the imperative timeliness all justice participants must show in-custody matters.

Impact on the Defence Counsel and Defence

[37] Both Ms. Giordano and Mr. McCuaig maintain busy criminal law practices. Ms. Giordano informs me that she has three to four other murder trials scheduled after what was contemplated to be the end of this trial, taking her into July of 2026. The record supports that she has been diligent in bringing Mr. Bashir's case to trial in a timely way. Without embarking on a review of whether there is a possibility to reschedule these other cases to permit a re-trial within the next 3.5 months, appellate jurisprudence tells us that defence counsel are not expected to clear their calendars in these circumstances but to take reasonable steps to bring the matter back on in a timely fashion, balancing their obligation of preparedness to their client and their responsibility to avoid further delay.

Law & Analysis

Section 7, Late Disclosure and Mr. Bashir's Right to Make Full Answer and Defence

[38] Section 7 of the Charter requires that laws or state actions that interfere with life, liberty and security of the person conform to the principles of fundamental justice that underlie our notions of justice and fair process.

[39] The Crown has conceded that the untimely mid-trial DNA disclosure has resulted in a violation of Mr. Bashir's section 7 Charter rights and interfered with his ability to have a fair trial. However, I find the explanation given to the Court of inadvertence to be an unsatisfactory one to explain such late disclosure of important evidence which was in the possession of the state for nine months before trial. I find this to constitute a serious violation of Mr. Bashir's right to make full answer and defence.

[40] I find that the untimely cell tower disclosure and corresponding witness will say evidence, which is being relied on by the Crown to establish Mr. Bashir's identity as the murder suspect at trial, has interfered with his ability to have a fair trial. This untimely disclosure can largely be attributed to late preparation and constitutes a serious violation of Mr. Bashir's right to make full answer and defence.

Section 7 and An Abuse of Process Caused by Crown Conduct

[41] In our system, notions of fundamental fairness predicated on the presumption of innocence prevail to guard against an abuse of process and to uphold the integrity of the justice system. I find that the cumulative effect of the actions and attitude of the Crown and police set out in the aforementioned reasons demonstrates a disorganized and negligent approach to carrying out their duties and responsibilities of investigation, disclosure and preparation to ensure Mr. Bashir and the public have a fair trial. This pattern of repeated indifference contravenes those notions of fundamental fairness and undermines the integrity of the judicial process rising to the level of an abuse of process.

Abuse of Process and Stay of Proceedings

[42] In R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at paras. 30-47, the Supreme Court clarified the proper analysis to be undertaken when a stay of proceedings is sought for prior state conduct that is said to impinge on the integrity of the justice system. In the interest of time, and because the jury is waiting, I will not read those paragraphs into the record, but I adopt them and will proceed to apply the test set out at para. 32 of Babos to the facts of this case.

[43] There are two categories where a stay of proceedings may be warranted: (1) state conduct compromises the fairness of an accused's trial (the "main" category); or (2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the "residual" category): R. v. O'Connor, [1995] 4 S.C.R. 411, at para. 73.

[44] As explained in Babos at para. 32, the test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:

(1) There must be prejudice to the accused'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": R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 54.

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

(3) 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": Regan, at para. 57.

[45] In this case, the defence has advanced an argument related to both categories but relies mainly on the residual category to support/justify a stay of proceedings. I am satisfied that the impugned conduct in this case implicates both categories but will proceed with the analysis under the residual category test.

[46] Commencing with the first stage of the test, I find that based on my findings, the state has engaged in conduct that is offensive to societal notions of fair play and decency. Proceeding with a trial in the face of this conduct would be harmful to the integrity of the justice system. The conduct demonstrates a complete abdication of the Crown responsibility towards the public, the accused and the Court. I find that the state approached this prosecution with apathy and a continued negligence or pattern of indifference towards the role and responsibilities of the Crown and police to ensure a fair trial. Especially where an offender is incarcerated pending trial, I find this record so troublesome that having a trial will leave the impression that the justice system condones or tolerates this type of conduct.

[47] Furthermore, in order to advance this application, the defence has disclosed its entire work product over to the court and the Crown largely to explain the evidence itself and the resultant impact to Mr. Bashir's defence by the untenable position taken by the Crown on the cell tower evidence. I find that proceeding in these circumstances arising from the impugned conduct would do further harm to the integrity of the justice system by offending society's sense of fair play and decency.

[48] In the result, the first stage of the test is met.

[49] At the second stage of the residual category test, I must consider whether any other remedy short of a stay is capable of redressing the prejudice occasioned by the misconduct/impugned conduct.

[50] An adjournment or mistrial in this case, as advanced by the Crown is a remedy generally invoked to redress prejudice impacting an accused's fair trial right alone, such as in the main category test, where the focus is on restoring the right to a fair trial. I find that an adjournment, or mistrial, would not redress the prejudice to the integrity of the justice system. In fact, I find that granting the Crown a mistrial in these circumstances, which would allow them to source the evidence required to prove and strengthen their case after inadequate preparation, would constitute a further abuse of process and cause irreparable prejudice to the accused and the integrity of the justice system.

[51] I am mindful that the focus here must be on whether an alternate remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward. I do not think there is.

[52] In the result, the second stage of the test is met.

[53] Parenthetically, and as I have indicated, the impugned conduct here implicates both categories of this test. The Crown has conceded that the defence will need to consider this new mid-trial DNA disclosure and its impact on an alternate suspect application. The defence asserts that not only would they need to explore that application but also the admissibility of such forensic evidence in addition to the cell tower disclosure evidence, before setting a new judicial pre-trial, pre-trial motion dates and dates for a 4-week judge and jury trial. Defence counsel argues that the possibility of Mr. Bashir's trial being completed within the 30-month ceiling set in Jordan in these circumstances is a fallacy, before even taking into account defence counsels' commitments to other trials set after what was contemplated to be the end of this trial. I agree with the defence that on any reasonable review of what is required to place this matter back before the court for a 4-week jury trial, the 30 month Jordan ceiling would likely be breached. Nevertheless and in light of the nature of the impugned conduct which caused the delay, where defence has acted with dispatch, my findings of abuse of process, and the guidance from the SCC in Jordan, I would not have found on the main category test that adjourning the trial for a future delay application would have been an appropriate and just remedy.

[54] At the third stage of the residual category test, where I have found the impugned conduct has prejudiced the integrity of the justice system, I must decide which of two options better protects the integrity of the justice system: staying the proceedings (which frustrates the truth-seeking function of a criminal trial) or having a trial despite the impugned conduct. On balancing the nature and seriousness of the impugned conduct, which I have found to be serious and constituting a pattern of indifference to the responsibilities of the office throughout the entire prosecution of Mr. Bashir's case, the circumstances of the accused, the seriousness of the charge he is facing, and the interests of society in having the charges disposed of on the merits, I reach the conclusion that entering a stay of proceedings is the only remedy capable of denouncing the misconduct and preserving the integrity of the justice system.

[55] In the result, the third stage of the test is met.

Conclusion

[56] Accordingly, I find that the applicant has met his burden to establish a section 7 Charter violation for untimely disclosure and abuse of process, and he has demonstrated that this is one of those exceptional and rare situations justifying a stay of proceedings and his application pursuant to section 24(1) is granted. A stay of proceedings is entered.

G.B. Gambacorta, J.

Released: September 25, 2025