R. v. Zarinchang

R. v. Zarinchang Collection Decisions of the Court of Appeal Date 2010-04-19 Neutral citation 2010 ONCA 286 Docket numbers C47984, C48071 Judges O’Connor, Dennis; Armstrong, Robert Patrick; Epstein, Gloria Jean Subject Criminal Decision Content CITATION: R. v. Zarinchang, 2010 ONCA 286 DATE: 20100419 DOCKET: C47984/C48071 COURT OF APPEAL FOR ONTARIO O’Connor A.C.J.O., Armstrong and Epstein JJ.A. BETWEEN Her Majesty the Queen Appellant and Davood Zarinchang Respondent Philip Perlmutter, for the appellant P. Andras Schreck, for the respondent Heard: October 2, 2009 On appeal from the orders of Justice Howard I. Chisvin of the Ontario Court of Justice dated October 19, 2007 and November 30, 2007 staying the criminal proceedings against Davood Zarinchang and awarding costs against the Crown. By the Court: INTRODUCTION [1] On October 19, 2007, Justice H. Chisvin of the Ontario Court of Justice (the “trial judge”) granted an order under the Canadian Charter of Rights and Freedoms staying the proceedings against Davood Zarinchang (the “respondent”) on the ground that the judicial system failed to provide the respondent with a bail hearing for some 24 days from the time of his arrest. The trial judge further ordered the Crown to pay the costs of the respondent. [2] The Crown appeals the stay order and seeks leave to appeal the costs order. The Crown also seeks to introduce fresh evidence on appeal. [3] The Crown submits that the trial judge erred in finding that the 24-day delay was occasioned by insufficient institutional resources. The Crown also submits that the trial judge failed to apply properly the governing principles for concluding that there was a Charter breach and in determining a stay of proceedings and a costs order were appropriate remedies. THE FACTUAL BACKGROUND [4] On March 31, 2007, the respondent was arrested and charged with a number of offences arising out of disputes with his girlfriend.[1] He was immediately taken into custody. [5] The respondent first appeared in bail court on April 1, 2007. His parents attended court and were available to act as sureties. He had not yet retained counsel and was assisted by legal aid duty counsel. Counsel representing the Crown took the position that because the parents were potential witnesses to the alleged offences, they would not be acceptable sureties. Duty counsel, without instructions from the respondent, requested that the matter be put over to April 3, 2007. [6] The respondent returned to bail court on April 3, 2007, represented by a law student who was instructed by her principal to attempt to negotiate a consent release. If she was unable to achieve that result, she was instructed to ask the respondent if he wished to proceed to a bail hearing with the assistance of duty counsel. The respondent’s mother and his employer were present in court and prepared to act as sureties. His father, although not present in court, was available to attend on short notice if required. The Crown advised the law student that he was not prepared to consent to the respondent’s release. [7] The respondent chose to proceed with a show-cause hearing with the assistance of duty counsel. However, duty counsel advised the law student that the matter would not be reached that day as other cases with higher priority were waiting to be heard. The law student requested an adjournment to April 12, 2007, the first date that would accom-modate the schedules of counsel and potential sureties for the respondent. [8] On April 12, 2007, the respondent was represented by counsel. Potential sureties were again present. They waited all day to be reached. Late in the day, counsel made the following statement to the justice of the peace: The other gentleman in the box is Mr. Zarinchang. He is up for bail hearing today. He is in custody since the 31st of March and had a number of people here. I am private counsel and I have been here all day as well. I certainly heed Your Honour’s comments that you made about an hour ago about not wanting to start a contested hearing at 4:00, it is 4:25. It is a reverse onus but despite that it is certainly my submission that this is a very strong matter for bail. I will be urging the Court to grant bail but the Crown is not in a position to consent to the release and it is 4:25. I don’t know what else I could say. Certainly it is my wish as it has been all day – the Zarinchangs and he has got about six people here for him – to have proceeded. [9] The justice of the peace adjourned the case to April 17, 2007, when the sureties were next available. He advised the Crown to “note it for some type of priority on that date.” However, the justice of the peace observed: I know that there is no guarantee that the matter will be heard depending on where he is and the list of priorities. I know that there are some other persons that have been in custody as long perhaps, maybe even longer than he has so the Crown – I am sure the Crown will do their best to call the list. [Emphasis added.] [10] On April 17, 2007, the respondent again appeared in court with counsel and potential sureties. The Crown, on the other hand, was not prepared to proceed: Well I can pretty well say it is not going to happen because I already have three youth releases and I have three adult releases and I have a contested with counsel and surety present. [11] It was agreed to wait and see if another court might become available to hear the matter. Later in the day, it was clear that the matter could not be heard that day: THE COURT: Mr. Morische, first of all how long has your client been in custody? MR. MORISCHE: He was arrested on the 30th of March [sic] and has been up — … — this is now the fourth appearance for bail where the surety is here but… . THE COURT: Four times that sureties have been available here? MR. MORISCHE: Yes. THE COURT: Is it the Crown’s position to proceed with the bail hearing today? MS. ELMASRY: No I am not willing to proceed at this time. It is not a matter that would be a short matter and at this time, given the time of day all I can say is if you adjourned it until tomorrow, traverse it to 106 Court. THE COURT: Right. The Crown is not in a position to proceed now. It is almost four thirty and again you have heard me say it before, that it really isn’t an acceptable state of affairs but we don’t have the time to deal with the matters that come before us and Ms. Elmasry has agreed to mark this for priority tomorrow. Are the sureties available tomorrow morning Mr. Morische? [Emphasis added.] [12] Counsel for the respondent conceded that he had no choice but to come back the following day – April 18, 2007. However, he advised the court that he could not guarantee he would have sureties available. The two people whom he had available on April 17 were not available on short notice the following day. However, he would do his best to find others who could act as sureties on April 18, 2007. [13] On April 18, 2007, the respondent and counsel again attended court and counsel made the following statement: The reason we cannot proceed today is the absence of our sureties. This on four previous occasions, Mr. Zarinchang has had sureties present between four and six individuals, including his parents who are self-employed and his employer who have all taken time off work. He has had counsel representation I believe on three of those occasions who have spent the entirety of a day awaiting to have this bail hearing heard. Because of the nature of the lists, in this Court, because of the lack of resources I think is the only explanation, he has been unable to do that. Despite having been marked a priority, and despite our best efforts. Today there is a second bail Court where he has been placed as a priority however I have been informed by the sureties that they simply cannot return this many times within that specified period without essentially ruinous financial loss. As a result and through no will of ours, he is going to be adjourned. The case was adjourned to April 24, 2007, when the bail hearing proceeded. The respondent was denied bail and detained. THE CHARTER APPLICATION [14] Counsel for the respondent brought an application before the trial judge on September 27, 2007 and October 9, 2007 for an order staying the charges against him. The respondent alleged that a 24-day delay in the hearing of his bail application violated his rights under ss. 7, 9 and 11(e) of the Charter. [15] The trial judge had available to him the transcripts of the various attendances at bail court except for a complete transcript of the bail hearing. Counsel for the respondent also filed on consent a letter dated June 25, 2007 from Paul Tait, the Crown Attorney for York Region, which advised that a committee had been established a year earlier to consider a number of serious issues regarding the efficient operation of bail courts, including problems with delay. The committee included members of the bench and bar, court officials, security staff and a representative of the Regional Senior Justice of the Peace. [16] Counsel for the respondent filed an affidavit of a law student, which provided additional factual information concerning the various appearances at bail court in this case. [17] Finally, the trial judge was provided with the following statistical information: That York Region, for which the only court is in Newmarket, has a population of just under 1 million people; The court house in Newmarket runs 7 bail courts a week; The Brampton Court House, which serves a population of just over 1 million people, runs 15 bail courts a week; The City of Toronto, which population exceeds 2.2 million, runs 35 adult bail courts and 15 youth bail courts a week; Durham Region, a region whose population is approximately 2/3 the size of York Region runs 5 bail courts a week. [18] The trial judge defined the issue before him as follows: As I said at the outset, this is not a case about police misconduct or with the police failing to comply with Criminal Code sections. This case is about whether or not other governmental institutions who are responsible for providing court resources provided sufficient resources to allow the applicant to have a show cause hearing and be dealt with as required by law. It is important to recognize that the applicant was indeed prepared to proceed on one or more occasions with his show cause hearing but it was lack of institutional resources, that is court space, which prevented his application from being heard. [Emphasis added.] [19] The trial judge concluded: The time period that the applicant experienced here far exceeded what would be or should be acceptable. The Crown contends that this occurred as a result of a culmination of events that led to the creation of a perfect storm. Even if I were to accept that submission, which I do not, this perfect storm was a predictable storm that could have been avoided by proper preparation and management. The applicant should not be left to flounder on the seas of neglect by those responsible for ensuring sufficient resources exist. [Emphasis added.] …. Planning and foresight would have taken care of this problem. Indeed this was not the first time that this concern was raised in the Newmarket Court House. [20] The trial judge regularly sits in the region where the application was heard. He observed that York Region had lagged behind other jurisdictions in the Greater Toronto Area in respect of judicial resources available to deal with cases of this nature. He said: However, on the face of the matter it is clear that as this jurisdiction has grown, resources have not kept up with the demand. Indeed, it is also obvious on a proportionate basis to other jurisdictions in the Greater Toronto Area, York Region has not kept up with resources available in other courts. [21] For these reasons, the trial judge concluded that the breach of Charter rights in this case was “very significant”. [22] In respect of remedy, he rejected the Crown’s submission that enhanced credit for the 24 days in custody applied against sentence would be sufficient. The trial judge, quite properly, noted that the respondent might be found not guilty and hence such a remedy would be no remedy at all. [23] The trial judge also considered the Crown’s submission that a stay of proceedings would not be appropriate because, at the end of the day, the respondent was detained at the conclusion of his bail hearing. He dismissed this position as “an end justifies the means argument” and not relevant to the assertion of the respondent’s fundamental Charter rights. [24] Accordingly, the trial judge concluded that the only appropriate remedy for this serious and flagrant breach of the respondent’s Charter rights was a stay of proceedings against him: When the breach of the applicant’s rights here are considered, it can only be described as serious and flagrant, those responsible have effectively ignored the impending reality and disaster that was afoot. Individuals have been allowed to languish in custody awaiting show cause hearings. The serious nature of this matter could only be remedied by the most significant remedy available, that being a stay of the charges. [25] The trial judge ordered costs against the Crown as an additional Charter remedy. He was of the view that it was reasonable for the respondent to bear his own costs incurred before April 12, 2007. He therefore calculated the cost of counsel attending court on three subsequent days at $1,200.00 a day for a total of $3,600. The trial judge allowed $200 an hour for 30 hours of preparation of the Charter argument – an additional $6,000. Finally, he allowed $2,000 for the argument of the application. Thus, the total costs awarded against the Crown were $11,600 plus GST and disbursements of $350. THE FRESH EVIDENCE APPLICATION [26] On the appeal, counsel for the appellant sought to enter as fresh evidence an affidavit of Assistant Crown Attorney, Meghan Scott. Ms. Scott prosecuted a case against the respondent in Toronto for unrelated charges concerning the possession of a loaded firearm. [27] Ms. Scott deposed to the details of certain discussions between counsel at judicial pre-trial conferences in February, March and April 2007. These discussions led to the respondent’s guilty plea to certain of the Toronto charges on April 25, 2007. The respondent was ultimately sentenced to a term of imprisonment of 11 months. [28] We pause to note that plea negotiations are generally privileged in the sense that the information disclosed will not be used against the accused, although there may be exceptions: R. v. Bernardo, [1994] O.J. No. 1718 (S.C.). It may be that an exception applies where the negotiations are adduced to rebut an allegation of prejudice at the hands of the Crown. However, we make no further comment as this issue was not addressed by either party. [29] The Crown seeks to rely on this evidence to correct a statement made by defence counsel (not Mr. Schreck) on the Charter application. Defence counsel advised the trial judge on the Charter application that the respondent decided to enter a plea to the Toronto charges after the detention order was made in Newmarket on April 24, 2007. The Crown submits, in effect, that defence counsel misled the trial judge by suggesting that there was a causal link between the detention order in Newmarket and the decision to plead to the Toronto charges. [30] The Crown further submits that based on defence counsel’s statement to the trial judge one might conclude that the guilty plea to the Toronto charges was an act of desperation by a man “out of time, money and steam, [so] he made the best he could of a bad and unfair situation.” It is the Crown’s position that “the fresh evidence is capable of vitiating entirely or diminishing the seriousness of the Charter violation, or at least the level of derivative prejudice, and certainly would affect the determination of any remedy”. [31] Counsel for the respondent submits there is nothing in the fresh evidence to establish a causal link between the detention order in Newmarket and the guilty plea to the Toronto charges. He argues that at no time did counsel suggest to the trial judge that, but for the detention order, the respondent would not have pleaded guilty. Counsel did not advance an argument that his client was “out of time, money and steam”. The reference to the guilty plea to the Toronto charges was by way of explanation as to why he did not apply for a bail review as it would have no practical benefit. [32] Counsel for the respondent points out that the trial judge did not find that the detention order caused the respondent to plead guilty to the Toronto charges. Indeed, no reference is made to the guilty plea in the trial judge’s reasons for judgment. [33] We agree with the submissions of counsel for the respondent. This case does not turn on the issue of the timing of the decision to plead guilty to the Toronto charges, which is not relevant. Also, we are not persuaded that the fresh evidence satisfies the four-part test in R. v. Palmer and Palmer, [1980] 1 S.C.R. 759. In particular, the evidence does not satisfy the second and fourth parts of the Palmer test; it does not, in our view, bear upon a decisive issue in the case and could not reasonably be expected to have affected the result. [34] We dismiss the application to admit the fresh evidence. THE APPEAL [35] The appellants’ argument can be reduced to three grounds: (i) The trial judge made a palpable and overriding error in concluding that the sole cause of delay was systemic. (ii) The trial judge erred in granting a stay of proceedings. (iii) The trial judge erred in making a costs order against the Crown. ANALYSIS [36] For convenience, the relevant provisions of the Charter provide: 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of funda-mental justice. 9. Everyone has the right not to be arbitrarily detained or imprisoned. 11. Any person charged with an offence has the right… (e) not to be denied reasonable bail without just cause. [37] The importance of s. 11(e) of the Charter was clearly expressed by Iacobucci J., dissenting, in R. v. Hall, [2002] 3 S.C.R. 309 at paras. 47-49: 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. In the context of the criminal law, this fundamental freedom is embodied generally in the right to be presumed innocent until proven guilty, and further in the specific right to bail. When bail is denied to an individual who is merely accused of a criminal offence, the presumption of innocence is necessarily infringed. This is the context of this appeal, one in which the “golden thread” that runs through our system of criminal law is placed in jeopardy. And this is the context in which laws authorizing pre-trial detention must be scrutinized. Section 11(e) of the Canadian Charter of Rights and Freedoms calls particularly on courts, as guardians of liberty, to ensure that pre-trial release remains the norm rather than the exception to the norm, and to restrict pre-trial detention to only those circumstances where the fundamental rights and freedoms of the accused must be overridden in order to preserve some demonstrably pressing societal interest. [38] In a speech to the Criminal Lawyers’ Association on November 28, 2009, our colleague, Justice Marc Rosenberg, referred to Professor Friedland’s 1965 report on the bail system in Toronto. Professor Friedland said that “the law should abhor any unnecessary deprivation of liberty and positive steps should be taken to ensure that detention before trial is kept to a minimum.” [39] Unreasonably prolonged custody awaiting a bail hearing gives rise to a breach of s. 11(e) of the Charter: see, for example, R. v. V.(J.) (2002), 163 C.C.C. (3d) 507 (Ont. S.C.). In this case, s. 503(1)(a) of the Criminal Code required that the respondent be taken before a justice without unreasonable delay and in any event within 24 hours of his arrest. Section 516(1) of the Criminal Code permitted an adjournment for no more than three clear days, except with the consent of the respondent. (i) Was the sole cause of the delay systemic? [40] Crown counsel submits that that neither the Crown nor the justice of the peace was made aware of the respondent’s desire to proceed more quickly until April 12. He argues that on April 3, the law student, representing the respondent, simply requested an adjournment to April 12 and said nothing more. The Crown, he argues, was not part of the discussion in which the duty counsel advised that the case could not be reached that day and thus could not have known that the respondent wished to be heard that day. [41] We do not accept that the conduct of either the law student or the duty counsel was a contributing factor to the delay. The respondent was present with his sureties and ready to proceed. But for the lack of court resources, the bail hearing would have proceeded. [42] During oral argument, counsel for the appellant submitted that defence counsel could have explored other dates for a bail hearing, particularly Wednesday dates, when two bail courts were in operation in Newmarket. With respect, there simply was no evidence before the trial judge that the bail hearing could have been heard any earlier than it was. [43] Further, as was observed by Cromwell J. in R. v. Godin (2009), 245 C.C.C. (3d) 271 (S.C.C.) at para. 23 in the context of a s. 11(b) Charter case, defence counsel are not required “to hold themselves in a state of perpetual availability.” [44] The Crown’s position also fails to recognize the right of an accused to a prompt bail hearing and the responsibility of the Crown to see that it happens. In V.(J.) at para. 66, Hill J. said: Where a person, arrested and detained for a bail hearing, is taken before the court within twenty-four hours of arrest (Code s. 503(1)), and the prosecution and the accused are prepared for a show cause hearing, a hearing should forthwith be held whenever possible. In a jurisdiction such as this, serving a population of nearly one million persons, bail courts run seven days a week. An arrested person should not face the prospect of having to, in effect, make an appointment for his or her bail hearing. [Emphasis added.] [45] In our view, there was more than sufficient evidence to support the trial judge’s finding of systemic delay. On April 3, 2007, there were other cases that were given priority to this case. On April 12, 2007, the justice of the peace observed that “there are some other persons that have been in custody as long perhaps, even longer than he has”. On April 17, 2007, the justice of the peace said, “[Y]ou have heard me say it before, that it really isn’t an appropriate state of affairs but we don’t have the time to deal with the matters that come before us”. [46] The trial judge also considered that the Crown Attorney for the region was sufficiently concerned about the systemic problems that he established a committee to address the issue. In addition, the trial judge considered the evidence concerning the number of bail courts in York Region compared to other regions in the Greater Toronto Area. York Region had one half the weekly bail courts of Peel, which had roughly the same population and proportionately fewer bail courts than Toronto or Durham Region. All of this evidence supported the trial judge’s conclusion that there was a very significant problem of systemic delay in York Region in the hearing of bail applications. [47] In the case at bar, the respondent was in court with his sureties and ready to proceed on April 1, 3, 12 and 17. The system failed him. This failure constituted a serious violation of the respondent’s constitutional rights. (ii) Did the trial judge err in granting a stay of proceedings? [48] We begin with a discussion of the legal principles as articulated by the Supreme Court of Canada that govern the granting of a stay of proceedings pursuant to s. 24(1) of the Charter. A useful starting point is R. v. O’Connor, [1995] 4 S.C.R. 411. In that case, the trial judge granted a stay of proceedings against the accused for the failure of the Crown to fulfill its disclosure obligations concerning the medical records of the complainants in respect of a number of sexual offences. The British Columbia Court of Appeal set aside the stay and ordered a new trial. The Supreme Court of Canada dismissed the appeal by the accused. [49] In O’Connor, L’Heureux-Dubé J., writing for herself, La Forest and Gonthier JJ., stated that a stay of proceedings is an exceptional remedy to be employed as a last resort, only after canvassing other available remedies. L’Heureux-Dubé J. noted at para. 73 that in Charter cases “concern for the individual rights of the accused may be accompanied by concerns about the integrity of the judicial system.” She further added: In addition, there is a residual category of conduct caught by s. 7 of the Charter. This residual category does not relate to conduct affecting the fairness of the trial or impairing other procedural rights enumerated in the Charter, but instead addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes funda-mental notions of justice and thus undermines the integrity of the judicial process. [50] In Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, a Federal Court judge granted a stay of citizenship revocation proceedings taken against three Canadian citizens. The trial judge held that a reasonable person would conclude that the judicial independence of the court had been infringed by reason of an ex parte meeting between the Chief Justice of the Federal Court and an assistant deputy attorney general. The Federal Court of Appeal allowed the appeal, holding that there was no reasonable apprehension of interference with judicial independence. The subsequent appeal to the Supreme Court of Canada was dismissed. [51] In Tobiass, the court observed at para. 89 that a stay is usually granted to cure some “unfairness to the individual that has resulted from state misconduct”. However, the court then confirmed that there is a residual category of cases for which a stay may be an appropriate remedy and referred to para. 73 of the reasons of L’Heureux-Dubé J. in O’Connor. The court in Tobiass emphasized that the residual category of cases is small. [52] The court continued at para. 90 to hold that in either case – where the Crown has rendered the proceedings unfair or has acted in such a way as to adversely affect the integrity of the administration of justice (the residual category) – two criteria must be satisfied: (i) The prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and (ii) No other remedy is reasonably capable of removing that prejudice. [53] In respect of the above criteria, the court said at para. 91: The first criterion is critically important. It reflects the fact that a stay of proceedings is a prospective remedy. A stay of proceedings does not redress a wrong that has already been done. It aims to prevent the perpetuation of a wrong that, if left alone, will continue to trouble the parties and the community as a whole in the future. See O’Connor, at para. 82. For this reason, the first criterion must be satisfied even in cases involving conduct that falls into the residual category. See O’Connor, at para. 75. The mere fact that the state has treated an individual shabbily in the past is not enough to warrant a stay of proceedings. For a stay of proceedings to be appropriate in a case falling into the residual category, it must appear that the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society’s sense of justice. Ordinarily, the latter condition will not be met unless the former is as well – society will not take umbrage at the carrying forward of a prosecution unless it is likely that some form of misconduct will continue. There may be exceptional cases in which the past misconduct is so egregious that the mere fact of going forward in the light of it will be offensive. But such cases should be relatively very rare. [54] Finally, the court suggested that there may be a third criterion where it is not clear that the abuse in question is sufficient to warrant a stay. In such cases, “it will be appropriate to balance the interests that would be served by the granting of a stay of proceedings against the interest that society has in having a final decision on the merits”: see Tobiass at para. 92. [55] In R. v. Regan, [2002] 1 S.C.R. 297, the court reiterated the principles articulated in O’Connor and Tobiass. In Regan, the trial judge stayed nine counts of sex-related offences on the basis that certain prosecutorial abuse would continue to taint the trial. He relied on the residual category. A majority of the Nova Scotia Court of Appeal reversed the decision of the trial judge. The Supreme Court, in a five-four split, dismissed the appeal. In considering the approach to cases in the residual category, Lebel J., for the majority, said at para. 55: As discussed above, most cases of abuse of process will cause prejudice by rendering the trial unfair. Under s. 7 of the Charter, however, a small residual category of abusive action exists which does not affect trial fairness, but still undermines the fundamental justice of the system (O’Connor, at para. 73). Yet even in these cases, the important prospective nature of the stay as a remedy must still be satisfied: “[t]he mere fact that the state has treated an individual shabbily in the past is not enough to warrant a stay of proceedings” (Tobiass, at para. 91). When dealing with an abuse which falls into the residual category, generally speaking, a stay of proceedings is only appropriate when the abuse is likely to continue or be carried forward. Only in “exceptional”, “relatively very rare” cases will the past misconduct be “so egregious that the mere fact of going forward in the light of it will be offensive” (Tobiass, at para. 91). [56] The court also emphasized that where a judge may be uncertain as to whether the abuse is sufficient to warrant a stay, a traditional balancing of interests should take place: see Regan at para. 57. [57] From the above cases in the Supreme Court, the following principles emerge: (1) There are two categories of cases that may attract a stay of proceedings. The first category implicates the fairness of an individual’s trial resulting from state misconduct. The second involves a residual category unrelated to the fairness of the trial, but involves state conduct that contravenes fundamental notions of justice, which undermines the integrity of the judicial process. (2) In considering whether to grant a stay of proceedings under either of the above categories, the following criteria must be satisfied: (i) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; it must be directed at prospective prejudice, not to redress past prejudice; and (ii) no other remedy is reasonably capable of removing that prejudice. (3) In cases in either of the above categories where there remains some uncertainty as to whether the abuse is sufficiently serious to create the prejudice to warrant a stay, there is a third criterion that the court may consider – the balancing of the interests in granting a stay against society’s interest in having a trial on the merits. [58] Where the residual category is engaged, a court will generally find it necessary to perform the balancing exercise referred to in the third criterion. When a stay is sought for a case on the basis of the residual category, there will not be a concern about continuing prejudice to the applicant by proceeding with the prosecution. Rather, the concern is for the integrity of the justice system. [59] When the problem giving rise to the stay application is systemic in nature, the reason a stay is ordered is to address the prejudice to the justice system from allowing the prosecution to proceed at the same time as the systemic problem, to which the accused was subjected, continues. In effect, a stay of the charge against an accused in the residual category of cases is the price the system pays to protect its integrity. [60] However, the “residual category” is not an open-ended means for courts to address ongoing systemic problems. In some sense, an accused who is granted a stay under the residual category realizes a windfall. Thus, it is important to consider if the price of the stay of a charge against a particular accused is worth the gain. Does the advantage of staying the charges against this accused outweigh the interest in having the case decided on the merits? In answering that question, a court will almost inevitably have to engage in the type of balancing exercise that is referred to in the third criterion. It seems to us that a court will be required to look at the particulars of the case, the circumstances of the accused, the nature of the charges he or she faces, the interest of the victim and the broader interest of the community in having the particular charges disposed of on the merits. [61] Thus, in our view, a strong case can be made that courts should engage in the balancing exercise set out in the third criterion in most cases coming within the residual category. [62] We now return to the case on appeal and the application of the above principles. In our view, this case falls into the residual category. There is no evidence that the abuse suffered by the respondent in respect of the denial of his right to a timely bail hearing would have an effect on his right to a fair trial. However, as the court said in Tobiass at para. 91, which we repeat for emphasis: For a stay of proceedings to be appropriate in a case falling in the residual category, it must appear that the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society’s sense of justice. [63] In this case, it appears that the systemic failure of the bail system in York Region found by the trial judge would likely continue to affect others in the future unless some appropriate action was taken. However, the question that arises is whether continuing the prosecution against the respondent in this circumstance would create prejudice to the system of justice that warrants the use of a stay. In our view, there is an element of uncertainty about the answer to this question. That being the case, the third criterion articulated in the above cases comes into play – a court should then balance the interests served by the granting of a stay against the interest served by a trial on the merits. [64] Unfortunately, the reasons of the trial judge do not suggest that he undertook the balancing exercise. That failure in our view is critical and leads us to conclude that the stay must be set aside. In fairness to the trial judge, counsel on the application for a stay did not submit that he undertake such an exercise. [65] While it may be open to this court, in an appropriate case, to undertake the balancing exercise when none has been undertaken in the court below, we would not do so on the record before us. While we have the evidence concerning the systemic failure and the serious consequences it had for persons in custody awaiting bail in York Region, the record is unhelpful in respect of other interests that are relevant to the balancing exercise. Although the transcript of the bail hearing contains some information that would ordinarily be required for the balancing exercise, much of it was challenged by the respondent.[2] [66] It may be that a stay of the charges against this respondent is an appropriate price for society to pay in order to correct a serious systemic failure in the bail system in York Region. However, it is only after a proper balancing of the appropriate interests is undertaken that a court could come to that conclusion. We observe in passing that the trial judge’s order appears to have caused the authorities in York Region to take some steps to address the problem. Counsel for the Crown in the court below conceded during the costs hearing that since the trial judge had ordered the stay of proceedings “we have now been running a second bail court here five days a week, which will obviously have significant benefit to other accused going forward.” (iii) Did the trial judge err in making a costs order against the Crown? [67] We accept that it is rare for costs to be awarded in a criminal case. In R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575 at para. 87, McLachlin C.J. stated for the court that costs in a criminal case are only appropriate where it can be shown that there was “a marked and unacceptable departure from the reasonable standards expected of the prosecution”. [68] In R. v. Brown (2009), 247 C.C.C. (3d) 11, this court upheld a costs award made in respect of a bail delay case. Brown involved a situation, where, after a lengthy investigation into allegations of gang-related trafficking and acts of extensive violence, the Toronto police conducted a major take down and arrested approximately 100 individuals. The arrested persons were not taken before a justice of the peace within 24 hours as required by s. 503(1)(a) of the Criminal Code. No arrangements had been made to have adequate resources available in the bail courts to deal with the situation in a single day. Dates for bail hearings were set well beyond the three day adjournment permitted by s. 516(1) of the Criminal Code. [69] On applications for habeas corpus, brought by several of the accused persons, the application judge found violations of their rights under ss. 503(1)(a) and s. 516(1). The application judge also found breaches of ss. 7, 9 and 11(e) of the Charter. The application judge said: 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. [70] The application judge did not grant habeas corpus but ordered expedited bail hearings. In addition, he ordered costs against the Crown pursuant to s. 24(1) of the Charter. The Crown appealed the costs order. Sharpe J.A., writing for this court, said at para. 21: I do not accept the appellant’s central submission before us that the application judge failed to make the findings required to bring the Crown’s conduct within the category of “a marked and unacceptable departure from the reasonable standards expected of the prosecution”. In my view, the findings by the application judge bring this case within that standard as it applies to cases involving the violation of Charter rights….The application judge rested his decision to award costs on the basis of a systemic failure on the part of the prosecution to respect both the statutory and Charter rights of the respondents. Those findings were fully supported by the record. He aptly described the conduct of the Crown and the situation it produced as “improper and unacceptable.” The cause of that improper and unacceptable situation was the failure of the Crown to make the necessary arrangements to have sufficient court resources available to deal with the known fact that there would be a massive intake of detained persons. [71] We would apply the same reasoning to the trial judge’s award of costs of $3,600 for counsel’s attendances in bail court caused by the failure of the system. We would not interfere with the exercise of the trial judge’s discretion to award these costs. In this case, the systemic problem of delay was recognized in York Region for some time – at least a year and no doubt for some time before the regional Crown Attorney found it necessary to appoint a committee to study the matter. The circumstances in which the respondent was placed were entirely predictable. The record demonstrates that many others were similarly affected. This is one of those rare cases where a costs award was appropriate. [72] However, in view of the order we make setting aside the stay of proceedings, we set aside the balance of the trial judge’s award of costs. DISPOSITION [73] We set aside the order granting a stay and order a new trial, but without prejudice to the respondent’s ability to renew his application for Charter relief, including a stay, if so advised. We grant leave to appeal the costs order and make an adjustment to the award by reducing the total award from $11,600 to $3,600 plus G.S.T. RELEASED: “APR 19 2010” “Dennis O’Connor A.C.J.O.” “DOC” “Robert P. Armstrong J.A.” “Gloria Epstein J.A.” [1] He was charged with three counts of assault, one count of assault with a weapon (a glass cup), three counts of threatening death, and two counts of mischief. [2] We note that the trial judge did not appear to have a full transcript of the bail hearing before him.