R. v. Dhaliwal, 2020 ONCJ 601

CITATION: R. v. Dhaliwal, 2020 ONCJ 601 DATE: October 3, 2020 ONTARIO COURT OF JUSTICE Central West Region Brampton Ontario B E T W E E N : HER MAJESTY THE QUEEN -and- DARSHAN DHALIWAL (No 2) REASONS FOR JUDGMENT Duncan J. 1. The defendant is now charged on one information with two counts of fraud over.[1] This is an application to stay proceedings onthose charges for abuse of process. 2. The background is detailed in my earlier ruling dated September 24 2020 dealing with an application to stay under

section 11b ofthe Charter, trial within a reasonable time. 3. To briefly recap: The defendant was first charged in February 2017 with a single count of fraud over. Other similar charges aroseover the next several months. Originally on separate informations, they were re-laid as a single 7 count information, each count relatingto a separate named complainant. Later, when another complainant came forward, a new 8 count information in identical terms was laid.Finally, when the first trial date was being re-scheduled, a new single count information charging that the defendant did “defraud thepublic” was laid.

It was understood that this omnibus allegation embraced all allegations included in the former 8 count information –and no more. 4. The Crown made it clear that it intended to proceed to trial only on this consolidated single count information. However, the 7and 8 count informations were never withdrawn. Instead they rode along with the consolidated information toward the trial date. Despitethe Crown’s intentions, the trial was nominally set to be held on all informations still before the court.[2] 5. By agreement, the 11b application was dealt with in writing.

While it dealt only with the consolidated single count information,the parties dealt with the 11b calculations applicable to each of the allegations as if they remained as separate counts.[3] In my reasons Ifound that all but the two most recent allegations were beyond 11b tolerance and the only available remedy was to stay the singleconsolidated count, notwithstanding that the more recent allegations were Charter compliant. 6. The Crown now seeks to proceed to trial on those two surviving counts as they appear on the 8 count information (18-8394) thatis still before the court. Issue Estoppel: 7.

The defence first argues that the doctrine of issue estoppel bars the Crown from proceeding in this way. I disagree. The doctrine islimited in scope to preventing the Crown from seeking to relitigate an issue or establish a fact that contradicts a finding made in theaccused’s favour in an earlier proceeding. R. v. Mahalingan, 2008 SCC 63 , [2008] S.C.J. No. 64. 8. In this case, no issue relevant to the charges and information before the Court was decided in the defendant’s favour in the 11bruling.

What was decided was that the single count in the consolidated information must be stayed because it was not divisible accordingto the allegations it contained. But if so parsed, the more recent specific allegations now before the Court were specifically found NOT tobe in violation of the Charter. The only relevant finding was not found in the accused’s favour. Therefore, issue estoppel cannot apply. Abuse of process: 9. The law respecting abuse of process was authoritatively summarized by the Supreme Court of Canada in R v Babos 2014 SCC 16, [2014] 1 SCR 309: A. Abuse of Process and Stays of Proceedings

30 A stay of proceedings is the most drastic remedy a criminal court can order (R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para.53). It [page322] permanently halts the prosecution of an accused. In doing so, the truth-seeking function of the trial is frustrated and thepublic is deprived of the opportunity to see justice done on the merits. In many cases, alleged victims of crime are deprived of their dayin court. 31 Nonetheless, this Court has recognized that there are rare occasions - the "clearest of cases" - when a stay of proceedings for an abuseof process will be warranted (R. v.

O'Connor, (SCC), [1995] 4 S.C.R. 411, at para. 68).

These cases generally fall intotwo categories: (1) where state conduct compromises the fairness of an accused's trial (the "main" category); and (2) where state conductcreates no threat to trial fairness but risks undermining the integrity of the judicial process (the "residual" category) (O'Connor, at para.73). …. 32 The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of threerequirements: (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, perpetuatedor aggravated through the conduct of the trial, or by its outcome" (Regan, 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 infavour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interest thatsociety has in having a final decision on the merits" (ibid., at para. 57). 33 ……. 34 Commencing with the first stage of the test, when the main category is invoked, the question is whether the accused's right to a fairtrial has been prejudiced and whether that prejudice will be carried forward through the conduct of the trial; in other words, the concernis whether there is ongoing unfairness to the accused. 35 By contrast, when the residual category is invoked, the question is whether the state has engaged in conduct that is offensive tosocietal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrityof the justice system.

To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution ofoffences. At times, state conduct will be so troublesome that having a trial - even a fair one - will leave the impression that the justicesystem condones conduct that offends society's sense of fair play and decency. This harms the integrity of the justice system. In thesekinds of cases, the first stage of the test is met. 10. In my view the defendant cannot bring himself within either category. 11. There is no prejudice to the fair trial interests of the accused.

He is facing trial on exactly the same charges as he has always faced.Far from being prejudiced in his defence, he has been advantaged in having the case against him and his potential jeopardy considerablydiminished by the turn taken in the case. He can be assumed to have been ready to make full answer and defence to the much widerallegation as it stood before the 11b ruling and must equally be assumed to be ready and unhampered in defending the lesser case. 12.

As for the residual category, I am far from satisfied that there is anything in the circumstances that would offend society’s sense offair play or diminish the integrity of the justice system. There is no bad conduct on the part of the Crown. At worst it sought to simplifythe charging document and trial and was tripped up by a novel twist that had ramifications that neither party foresaw or anticipated.

Inmy view society would be offended and the integrity of the justice system would be adversely affected if what amounts to little more thanan error in the drafting of pleadings prevented the Crown from proceeding to try the merits of the remaining charges. 13. Having found that neither category applies, it follows that alternative remedies need not be considered since no harm has been doneto either protected interest and no remedy is required. Further, it is unnecessary to engage in a balancing since there is nothing favouringa stay to balance against competing interests. 14.

The application for a stay based on abuse of process is dismissed.

October 3 2020 B Duncan J J Heller for the Crown M Sodhi for the defendant