





CITATION:
R. v. Ward, 2011
          ONCA 267



DATE: 20110406



DOCKET: C50704



COURT OF APPEAL FOR ONTARIO



Simmons, Blair and Watt JJ.A.



BETWEEN



Her Majesty the Queen



Appellant



and



Brian Ward



Respondent



Alexander Alvaro, for the appellant



Kristin Bailey, for the respondent



Heard and released orally: March 30, 2011



On appeal against the stay of proceedings imposed by Justice
          Stephen D. Brown of the Ontario Court of Justice on June 2, 2009.



ENDORSEMENT



[1]

The respondent was facing six charges on five informations
    relating to events that occurred between July 16, 2008 and January 17, 2009.
    The charges ranged in seriousness from theft under to break, enter and theft in
    relation to a dwelling house, obstruct a peace officer and uttering a death
    threat.

[2]

Following a contested bail hearing on March 27, 2009, the
    respondent was released on a recognizance with a surety. On April 22, 2009, the
    respondent attended court with his surety to have the bail revoked for what was
    anticipated to be a 10-day period during which the surety was going out of the
    country, thus unable to supervise the respondent. On April 23, 2009, the matter
    was remanded to May 4, 2009 for a bail hearing.

[3]

Unfortunately, the May 4, 2009 return date coincided with an
    illegal strike at the Maplehurst Detention Centre where the respondent was
    detained. The respondent was not transported to court until after 1 p.m. on
    both May 4 and 5, 2009 with the result that his bail hearing did not
proceed
until May 7, 2009. The respondents surety was not
    present and the bail hearing proceeded on a contested basis. The justice of the
    peace declined to make an order for the respondents release on his own
    recognizance and instead made an order permitting his release on a recognizance
    with a surety on terms identical to the March 27, 2009 order.

[4]

As of June 2, 2009, the respondent had not yet been released.
    Accordingly, he moved for a stay of all charges, arguing that the four-day
    delay in conducting his May 4, 2009 bail hearing was a contravention of s. 503
    of the
Criminal Code
and ss. 7,
    9 and 11(e) of the
Charter
.

[5]

The trial judge concluded that the state had breached its
    obligation to bring the respondent before the court in a timely manner and that
    in the intervening period the respondent had also been deprived of his right to
    retain and properly communicate with counsel. Although the trial judge found
    that the breaches of the respondents rights would not affect the fairness of
    the trial, he concluded that they did impact the respondents ability to make
    full answer and defence at his bail hearing. He further found that the conduct
    of the correctional officers at the Maplehurst Detention Centre, which was
    found by the Ontario Labour Relations Tribunal to amount to an illegal strike,
    was an affront to the administration of justice such as to shock the conscience
    of the community. Based on these findings, the trial judge concluded that the
    only appropriate remedy was a stay.

[6]

The Crown argues that this case does not fall into the
    category of one of the clearest of cases warranting a stay. We agree.

[7]

The legal principles governing applications for a stay are
    well established. They were summarized by this court in the recent decision of
R. v. Zarinchang
(2010),
99 O.R. (3d) 721 (C.A.),
at para. 57.

[8]

As was recognized by the trial judge, this case falls into
    the residual category of cases in which a stay may be granted, as there was no
    impact on the fairness of the trial.

[9]

The standard of review and legal principles governing the
    residual category are set out in
Canada
    (Minister of Citizenship and Immigration) v. Tobiass
,

[1997] 3 S.C.R. 391, at paras. 87-92.

[10]

In this case, the presenting problem was an illegal strike.
    An illegal strike, standing alone, is not state misconduct. There is no
    evidence that state misconduct caused or even contributed to the strike.
    Moreover, the state moved promptly to remedy the problem by having the strike
    declared illegal.

[11]

Although we agree that it was unfortunate that the
    respondents bail hearing was delayed, the delay was relatively brief. Further,
    there was no evidence that the respondent was actually prejudiced in any real
    way by the delay as his surety did not attend to facilitate his release at any
    time between May 4, 2009 and the return date of the stay application. Moreover,
    there was no admissible evidence before the application judge to explain that
    omission. On a practical level, in our view, there is simply no evidence of
    state conduct that resulted in an abuse of process
vis-à-vis
the respondent. In the end, we are satisfied that the
    state did not conduct this matter in a way that renders the proceeding unfair
    or in a manner that is otherwise damaging to the integrity of the judicial
    system: see
Tobiass
at para. 90.

[12]

The appeal is therefore allowed and the stay is set aside.


[13]


The respondent is ordered to surrender within 7 days, failing
    which a warrant for his arrest shall issue.


Signed:           Janet
    Simmons J.A.

R.
    A. Blair J.A.

David
    Watt J.A.


