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“Innocent until proven guilty” is a golden thread running through our criminal justice system. The detention of an accused person before trial runs counter to this principle but can be justified for serious offences where the defendant presents a danger to the public or where there is a real risk that the accused may not appear for trial. Section 11(e) of the Charter of Rights and Freedoms recognizes the competing interests. It provides that “Any person charged with an offence has the right not to be denied reasonable bail without just cause.”

In order to give effect to this important constitutional right, it is necessary that bail hearings be heard on the merits in a timely manner. Lack of institutional resources, in the form of insufficient courts or judges, may prevent this from happening. In these circumstances, courts are faced with difficult decisions as to how to remedy the situation. These were the circumstances facing the Court of Appeal for Ontario in the April 19, 2010 decision in R. v. Zarinchang, 2010 ONCA 286.

Mr. Zarinchang had been arrested at the end of March, 2007 and was brought before a Justice of the Peace in the Newmarket Court for a bail hearing a day later. As a result of a combination of too many cases on the court list and insufficient judges to hear the matter, the bail hearing could not proceed on four separate hearing dates on which Mr. Zarinchang, his lawyer and proposed sureties were in attendance and ready to proceed. Close to a month after his arrest, he was ultimately detained, however before the trial judge Mr. Zarinchang brought a motion to stay the proceedings on the basis that his right to a timely bail hearing had been denied. The trial judge granted the stay, saying “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.”

On the resulting appeal by the Crown, the Court of Appeal did not try and sugar coat the breach of constitutional rights. The Court was concerned, however, that the remedy of a stay of proceedings be reserved for those cases where continuing the proceedings would cause sufficient harm to the justice system to warrant refusing to hear the case on the merits. The Court held that the reasons of the trial judge did not disclose that he had engaged in this balancing exercise:

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.

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.

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.

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.’