Sep 03, 2009 05:34 PM
LEGAL AFFAIRS REPORTER
Ontario’s Ministry of the Attorney General is in the highly unusual position of having to pay thousands of dollars in legal costs to nine alleged gang members who were denied timely bail hearings.
The men – who are to receive $2,000 each, for a total of $18,000 – were among more than 100 people rounded up when Toronto police swept through the Driftwood Court neighbourhood in June 2007 in a "takedown" of the Driftwood Crips gang.
The raid was meticulously planned and involved some 1,200 officers, but organizers overlooked one salient factor – ensuring Toronto’s bail courts were prepared for the crush of detainees.
"The execution of such a plan was bound to overwhelm the ordinary capacity of the bail court to handle those arrested in a timely fashion," said Justice Robert Sharpe on behalf of a three-judge panel of the Ontario Court of Appeal, which has upheld an earlier costs order against the Crown.
"Regrettably, however, the otherwise careful and detained plan entirely ignored the obvious fact that unless something was done to ensure that adequate court resources would be available on the morning of the sweeping arrests, chaos and the denial of the statutory and Charter rights of those arrested was inevitable," Sharpe said in the court’s decision this week.
Although the Criminal Code requires a person to be brought before a court within 24 hours of arrest, more than 80 of those charged in the Driftwood raid, which was known as "Project Kryptic," waited more than 24 hours before they were taken to a single bail court at the Metro West courthouse on Finch Ave. W. on June 14, 2007.
Front-line prosecutors were not able to cope with the onslaught and the Crown was granted an adjournment to review the files. Some of the bail hearings were scheduled for dates three and four weeks from the time of the first court appearance – far beyond the three-day adjournment permitted by the Criminal Code.
Before those bail hearings took place, nine of the accused and their lawyers brought applications for habeas corpus, an attempt to obtain either immediate release or bail hearings at an earlier time.
Another major motivation was to drive home the point that when the police and attorney-general’s office spend an immense amount of time and public money on an investigation in which hundreds of arrests are anticipated, they also take steps to ensure the rights of those taken into custody are protected, said Daniel Rechtshaffen, a lawyer for one of the nine.
"Although these investigations generate a lot of publicity at the time of arrest, the general public is not much interested in what happens to (the accused) later," Rechtshaffen said today. "But it’s something people should care about because a lot of the people arrested, if you look at the court record, weren’t found guilty of anything and a lot of the charges were withdrawn."
While legal costs are routinely awarded to the winning party in civil cases, they are rarely awarded in criminal prosecutions. Ruling on their habeus corpus application on June 21, 2007, however, Justice Ian Nordheimer of the Superior Court of Justice found the accused men’s rights under the Criminal Code and the Charter of Rights and Freedoms had been violated and ordered that costs be awarded, a decision that was appealed by the Crown.
During oral arguments in the appeal court, noted Justice Sharpe, writing on behalf of a panel that included Associate Chief Justice Dennis O’Connor and Justice David Watt, the Crown "laid great emphasis" on how many of those arrested were "dangerous" people charged with serious crimes, including drug trafficking and weapons offences.
"That, however, cannot justify any departure from the rights secured by the Criminal Code and by the Charter. Quite apart from the need to respect the rights of those eventually found to be guilty, sweeps of this kind will often bring before the court bystanders who were simply in the wrong place at the wrong time," Sharpe said.
In fact, charges against two of the nine men have been withdrawn, Rechtshaffen noted. Another pleaded guilty to cocaine trafficking and was sentenced to nine months in jail. Another received a suspended sentence after pleading guilty to conspiracy charges. Notably, none were convicted of being members of a criminal organization, Rechtshaffen said.
The cases of at least three of the nine are still before the courts.