Ontario Superior Court of Justice

R. v. Brown, [2007] O.J. No. 2830 Ontario Judgments

Ontario Superior Court of Justice Toronto, Ontario I.V.B. Nordheimer J. June 21, 2007. [2007] O.J. No. 2830 Between Her Majesty the Queen, and Kirk Brown, Jason Burke, Howard Burke, Omar Burke, Kevin Davis, Andrew Persaud, Melvin Thomas, Kevin Whitfield and Rikardo Robinson

(38 paras.)

Case Summary

Constitutional law — Canadian Charter of Rights and Freedoms — Legal rights — Life, liberty and security of the person — Protection against arbitrary detention or imprisonment — Right to reasonable bail — Applications for habeas corpus in which the applicants each sought their immediate release from custody on the grounds that they had been denied bail hearings within a reasonable time — Applications granted in part — The applicants' rights under sections 7, 9 and 11(e) of the Charter were breached — However, immediate release was not a viable option — The Court ordered the Crown to ensure that the bail hearings were held at the earliest available date, and awarded costs against the Crown of $3,000 per each applicant.

Criminal law — Compelling appearance, detention and release — Right to reasonable bail — Applications for habeas corpus in which the applicants each sought their immediate release from custody on the grounds that they had been denied bail hearings within a reasonable time — Applications granted in part — The applicants' rights under sections 7, 9 and 11(e) of the Charter were breached — However, immediate release was not a viable option — The Court ordered the Crown to ensure that the bail hearings were held at the earliest available date, and awarded costs against the Crown of $3,000 per each applicant.

Applications for habeas corpus by Brown et al, in which they each sought their immediate release from custody -- The applications arose out of Project Kryptic, an investigations by the Toronto Police that resulted in approximately 100 individuals being arrested in the early hours of the morning of Wednesday, June 13 -- These individuals were brought to the Ontario Court of Justice the next day, at which time the proceedings were all adjourned to Monday, June 18 -- On that 18th, while some individuals were released, many others received dates for bail hearings that were weeks away -- Brown et al submitted these actions were a breach of their Charter rights, and that their continued detention was therefore unlawful.

HELD: Applications granted in part. The rights of Brown et al under sections 7, 9 and 11(e) of the Charter were breached -- However, immediate release was not an appropriate remedy -- The Court ordered the Crown to ensure that the bail hearings for Brown et al were held at the earliest available date, and to ensure that the bail hearings were given priority over all other proceedings currently extant in the Ontario Court of Justice, save and accept for other bail hearings -- Further, the Court ordered costs against the Crown of $3,000 to each applicant, pursuant to s. 24(1) of the Charter. Statutes, Regulations and Rules Cited

Canadian Charter of Rights and Freedoms, 1982, s. 7, s. 9, s. 11(e), s. 24(1)

Criminal Code, s. 503, s. 516

Counsel

M. MacDonald, Esq. and H. Poon, Esq. for the Crown.

E.H. Royle, Esq., B. Ross, Esq. and S. Robichaud, Esq. for the Accused Brown et al.

D. Rechtshaffen, Esq. for the Accused Robinson.

REASONS FOR JUDGMENT - HABEAS CORPUS APPLICATIONS

I.V.B. NORDHEIMER J.

1 I have before me eight applications by way of habeas corpus, in which each of the applicants seek their immediate release from custody. While I would have preferred to have had more time to consider the issues raised by these applications, the nature of the applications do not allow me that luxury.

2 These applications arise out of Project Kryptic, the most recent in a number of sweeping investigations that have been undertaken by the Toronto Police in the last few years.

3 This investigation resulted in approximately 100 individuals being arrested in the early hours of the morning of Wednesday, June 13th. These individuals were brought to the Ontario Court of Justice at 2201 Finch Avenue West the next day, at which time the proceedings were all adjourned to Monday, June 18.

4 On that day, while some individuals were released, many other received dates for bail hearings that were many days away. When I say many days away, I refer to the fact that all but one of the applicants before me, by way of example, had their bail hearings set for dates that were in the first two weeks of July, some two to three weeks later.

5 As a consequence, these applications were brought. They originally were returnable two days ago. The applications came before Justice Watt, who adjourned them to today to allow the Crown time to respond. Justice Watt did, however, express serious concerns regarding the delay in the dates for these bail hearings. As a consequence of those concerns, and at the suggestion of Justice Watt, the Crown engaged in further discussions with officials within the Ontario Court of Justice. As a result of those discussions, arrangements have now been made for these applicants to have earlier dates for their bail hearings, most of which are now scheduled for next week.

6 The applicants submit that the above events breach both ss. 503 and 516 of the Criminal Code and that their Page 3 of 6 R. v. Brown, [2007] O.J. No. 2830 continued detention is therefore unlawful. They first assert that the actions of the Crown breached s. 503 of the Criminal Code in that they were not brought to court within 24 hours of their arrest. It is clear to me that the requirements of s. 503 were not met in this case. That section requires the police to bring an accused person before the court no later than 24 hours after their arrest. In this case the accused should have been brought before the court on June 13. No defensible reason is given for why that did not occur. The sheer number of persons arrested does not provide a justification for failure to abide by the requirements of the Criminal Code.

7 This violation was nonetheless the lesser of the two. While I do not mean to excuse that result, I will say that given the nature of this investigation, and the number of people involved, were that the only violation to which the circumstances of this case gave rise, I would not have the same degree of concern.

8 The applicants also assert, however, that their rights under s. 516 of the Criminal Code have been violated. Section 516 stipulates that a person may not be remanded in custody for a period of more than three clear days, except with the consent of the accused. Each of these applicants have been held more than three days while they await their dates for their bail hearings. There was some dispute over whether any of these accused might have consented to these remands. Each of the applicant's counsel say that there were no such consents given in their presence. If any consents were provided at other times, it is fairly clear to me from what counsel an both sides have said, that any such consent was not an informed consent. Rather, it likely reflected an acceptance of the inevitable, given by the accused to avoid being transported to court on an earlier date only to simply then be put over to another date.

9 I begin my analysis of these applications by pointing out that the clear spirit and intent of these two sections of the Criminal Code is to ensure that a person who is arrested has the ability, at the earliest possible opportunity, to have a judicial officer review their detention and determine if the continuation of that detention is warranted. There can be no debate that any person who is arrested is entitled to prompt and early determination as to the legitimacy and necessity of their detention. This is normally accomplished through a formal bail hearing.

10 Section 11(e) of the charter establishes a person's constitutional right to bail and the right not to be deprived of bail except for just cause. A person who is arrested is also entitled under s. 10(c) of the Charter to have their detention determined by way of habeas corpus and to be released if their detention is not lawful.

11 It does not appear that courts have been called upon frequently to deal with these sections of the Criminal Code, but, when they have, courts have consistency pointed out that these provisions are among the most important provisions in the Criminal Code. For example, in R. v. Simpson (1994) 88 C.C.C. (3d) 377 (Nfld. C.A.) Chief Justice Goodridge said, page 386:

"Section 503 may be one of the most important procedural provisions of the Criminal Code. The liberty of the subject is dominant. A person not convicted of an offence should never be held in custody except in accordance with constitutionally valid provisions of the Criminal Code or other legislation."

12 In my view, what has occurred to date in this case is improper and it is unacceptable. Regardless of the nature of the charges and the circumstances surrounding them, each of these applicants was entitled to have their rights respected and to be accorded the safeguards provided by our law. Among other things, this means that each of these accused have the right to have the appropriateness of their detention determined at the earliest possible moment. A person who is held in custody, when he or she should not be, even if for only the briefest of times, has had one of their most fundamental rights, that is the right to liberty, infringed. In this regard, the words of Mr. Iacobucci in R. v. Hall [2002] 3 S.C.R. 309 at paragraph 41 bear repeating:

"At the heart of a free and democratic society is the liberty of its subjects. Liberty lost is never regained and can never be fully compensated for; therefore, where the potential exists for the loss of freedom for even a day, we, as a free and democratic society, must place the highest emphasis on ensuring that our system of justice minimizes the chances of an unwarranted denial of liberty."

13 The Crown responds to these concerns by saying that these provisions of the Criminal Code are not designed to cover large scale investigations of this type. If that is the case, then the provisions of the Criminal Code ought to be amended, as they were just a few years ago when the criminal organization offences were added. Until that happens, however, the requirements of those sections must be respected.

14 Indeed, there is a strong argument that it is of particular importance in these types of investigation that such requirements be met. While I do not suggest that fundamental rights ever differ in their importance, I will say that given the number of people who are impacted by these large scale projects, and I include in that number not only the accused but also their families and friends, and given the widespread media coverage that always seem to accompany these events, it is especially important that the judicial system be seen as dealing fairly and impartially with those matters that come before it.

15 I would note in this regard the comments made in R. v. Koszulap (1975) 20 C.C.C. (2d) 193 (Ont. C.A.) where Mr. Justice Martin said:

"It must not be forgotten, however, that the administration of criminal justice in this country is predicated upon the due observance of fundamental safeguards. It is the duty of the Courts, at all levels, to be vigilant in making sure that these safeguards are not overlooked or ignored."

16 The fact is that this investigation was many months in the making. A great many police officers from a number of different police services were able to be pulled together to effect all of these arrests. There is simply no excuse for the court system not to be ready to properly process these people and in a manner that ensures that their fundamental rights are respected. All that is required is a reasonable amount of attention and planning, along with a degree of advance notice.

17 On this latter point, the Crown contends there are serious security concerns that arise from the widespread dissemination of information about the proposed arrests that would have to be made to ensure that a sufficient number of courtrooms could be available to properly deal with all of the accused persons, including the holding of bail hearings immediately upon their arrest.

18 I do not accept that that is so. First, I do not accept that there would need to be an enormous number of properly staffed courtrooms in order to ensure that all persons who wanted to have a bail hearing could have one within the three day requirement of s. 516.

19 Second, it cannot be beyond the wit of the persons who are involved in supervising these investigations to develop ways of minimizing who has to know what about the reasons for setting up courts to deal with the consequences.

20 I have no doubt that the Ontario Court of Justice could be made ready to properly process these individuals if they were given adequate notice that such an influx of accused persons was imminent.

21 Third, if there are security issues within the court system, then those issues should be addressed directly. Such concerns cannot be used as an excuse for treading on the constitutional rights of accused persons.

22 Ultimately, the crown suggests that this problem reflects the ongoing conflict or tension between the allocation of resources and the rights of the accused. In response I would note that the Supreme Court of Canada has made it clear for many years, dating back at least to R. v. Askov (1990) 59 C.C.C. (3d) 449, that a lack of institutional resources being directed to the justice system cannot be relied upon as a reason not to respect constitutional rights.

23 It cannot come as any news to government officials that the criminal justice system is a process that begins with Page 5 of 6 R. v. Brown, [2007] O.J. No. 2830 the police investigating criminal activity and ends with the courts adjudicating on offences arising from such investigations. If resources are applied to the front end of that process, they must equally be applied to the back end of that process, otherwise the system will not function properly.

24 One of the consequences of that non-functioning can, of course, be the granting of stays of prosecutions and the release of accused persons without adjudication, that in turn can render the investigatory process somewhat meaningless.

25 I am satisfied there has been a failure to respect the rights of these applicants through the failure of the Crown to ensure that they were able to have a bail hearing at the first opportunity that the accused were prepared to conduct such a hearing. Those rights include the right to liberty under s. 7 of the Charter, the right against arbitrary detention under s. 9 of the Charter, and the right to bail under s. 11(e) of the Charter.

26 The issue, then, is what remedy should be imposed for that failure.

27 The applicants seek their immediate release. I do not consider that remedy to be either a responsible or reasonable one in the circumstances. I am fully aware of the rights of the accused, as I have just mentioned. However, I am equally aware that all other citizens of this community have similar rights. They are entitled to a justice system that ensures, among other things, their protection and safety. indeed, the protection and safety of the public is an expressed consideration in determining any release.

28 Notwithstanding the serious concerns that I have expressed regarding the procedure that has taken place to date respecting these accused, I am not prepared to simply release them into the public. I do not rule out the possibility, however, that such a remedy might become necessary if this situation should repeat itself in the future.

29 I have concluded instead that the appropriate relief to grant is twofold. One is to grant an order requiring the Crown to ensure that the bail hearings for these applicants are held at the earliest available date, and, in any event, no later than the dates upon which they are currently slated to be held. The Crown is to ensure that these bail hearings are to be given priority over all other proceedings currently extant in the Ontario Court of Justice, save and accept for other bail hearings. If this direction means that trials have to be interrupted or postponed, or the other business of that court delayed, then that is the necessary consequence of the situation that this investigation has provoked. In so saying, I do not mean to suggest that those other proceedings are not important. Rather, this direction serves to reiterate the priority that courts have always placed on first determining whether the continued detention of a person and the consequential infringement of their liberty is warranted. Other proceedings must necessarily take second place to the priority that we traditionally accord to such determinations.

30 The other remedy that I consider appropriate is to make an award of costs against the Crown. These applications ought not to have been necessary. This is not the first such mass arrest of individuals and I suspect it will not be the last. The Crown has had ample opportunity to develop a procedure to deal with the consequences of such investigations, and, more specifically, to ensure that the necessary courtrooms and judicial officers are available when needed.

31 Such a procedure was not properly in place for this project. Whatever the reason for that failure, it cannot be blamed on a new or novel situation. The seriousness of that failure for these accused cannot be understated. It is also apparent that but for these applications, the bail hearings for these accused would have been even further delayed than they already are.

32 An award of costs has long been recognized as an effective means by which a court may express its denunciation respecting the conduct of a party to a proceeding. It is also a remedy that has "a long history as a traditional common law remedy". (See R. v. 974649 Ontario Inc. (2001) 159 C.C.C. (3d) 321, (S.C.C.) per Chief Justice McLachlin at paragraph 80). 33 In my view, it is a remedy that is authorized by s. 24(1) of the Charter in that it is an appropriate remedy for the denial of these accuseds' rights under ss. 7, 9 and 11(e) of the Charter. I would award the sum of $3,000 in costs to each applicant.

34 Finally, I intend to adjourn each of these applications to a further date to ensure that the orders I have made are complied with.

35 MR. ROYLE: Just to clarify one point, Your Honour.

36 THE COURT: Yes.

37 MR. ROYLE: In your judgment you made reference to eight applicants, there are actually nine. One is not physically present today, that man is Melvin Thomas, but his application is properly before you.

38 THE COURT: Apparently, Mr. Royle, I have a little difficulty with counting, but you're correct, nine. Thank you.

End of Document