Two Hamilton Crown attorneys made such critical mistakes during a murder trial that a Superior Court justice has issued an “extremely rare” judicial stay — effectively stopping all proceedings and letting the accused off the hook for one of Canada’s most serious criminal charges.
Salomon Bashir was on trial last month, accused of the second-degree murder of Everton Frost, 23, when Justice Giulia Gambacorta issued the stay of what was supposed to be a month-long jury trial, despite protests from the Crown.
She said that in her ruling Sept. 22, assistant Crown attorneys Michael Dean and Steve Kim, as well as Hamilton police, “approached the prosecution with apathy and a continued negligence” that jeopardized Bashir’s right to a fair trial.
Two key missteps, Gambacorta said, were when Dean and Kim failed to disclose crucial DNA and cellphone tower evidence to the defence ahead of the trial. That meant Bashir’s lawyers had no time to prepare their response.
“This pattern of repeated indifference contravenes those notions of fundamental fairness and undermines the integrity of the judicial process rising to the level of an abuse of process,” the justice said.
She said the Crown’s conduct met the bar for a judicial stay, “an extremely rare remedy reserved only for the clearest of cases.”
DNA evidence not shared with defence
Hamilton police arrested a then 20-year-old Bashir in the summer of 2023 and charged him in the shooting death of Frost.
The young men had met two weeks before Frost died from gunshot wounds on Dec. 11, 2022, police said.
Bashir was held in custody while the court process unfolded and the lawyers prepared for trial.
Last January, however, Hamilton police received a new piece of evidence in the form of a “DNA hit notification.”
They had a match for one of the DNA samples found on a blue surgical mask the Crown believed was worn by the murder suspect, Gambacorta said. Police recovered the mask on train tracks, along with a bullet and gun, all believed to be thrown there by the shooter after fleeing the scene.
While Bashir’s DNA was already determined not to be on the mask, the new match was for Frost’s brother, Gambacorta said.
The police, “long in possession” of the new DNA evidence, did not notify the Crown’s office about the new DNA evidence until April 8 and didn’t alert the defence, said Gambacorta.
It wasn’t until the second day of Bashir’s trial that the Crown handed over the evidence to his lawyers.
“The record is devoid of any explanation of how such critical evidence could remain undisclosed,” said Gambacorta.
Police did not respond to CBC Hamilton’s request for comment.
Missing cellphone tower map
The Crown also had cellphone tower data, which it would’ve tried to use to connect Bashir to the area at the time of the shooting. This evidence was “complex” and needed to be explained to the jury through a cellphone tower map — obtained through service providers — and an expert witness, said Gambacorta.
But the Crown didn’t inform the defence it would in fact be calling three expert witnesses, until the eve of trial. They also didn’t begin the process of getting the map until after the trial began.
After these mistakes came to light, the defence applied to stay the proceedings. The Crown opposed it, asking for the judge to declare a mistrial and schedule a new trial instead. The Crown argued the mistakes were “inadvertent” and could be dealt with in advance of a new trial.
But Gambacorta ruled the Crown’s conduct met the high bar for a judicial stay. She also noted Bashir had been in pretrial custody for over 26 months and rebooking the trial for sometime in 2026 would violate his right for the case to be heard within a reasonable time.
“Especially where an offender is incarcerated pending trial, I find this record so troublesome that having a trial will leave the impression that the justice system condones or tolerates this type of conduct,” Gambacorta said.
Defence says accused ‘deprived’ of a fair trial
The last time a murder charge was stayed due to an abuse of process in Ontario was likely over 20 years ago, said defence lawyers Laura Giordano and Ian McCuaig in a statement.
They said they were particularly troubled by “the apparent lack of interest” shown by the Crown’s office in the outcome.
“To our knowledge, there has been no public effort by the Crown’s office to investigate or address the ‘indifferent’ and ‘lackadaisical attitude’ displayed by the Crown in this case, especially in a case involving the most serious offence of murder,” the defence said, quoting from the judge’s ruling.
The Ministry of the Attorney General, which oversees Ontario Crown attorneys, did not respond to a request for comment on whether there has been any action taken to avoid a similar outcome in the future.
Bashir, who has always said he was innocent, was looking forward to having a fair trial, said Giordano and McCuaig.
“Mr. Bashir was deprived of this opportunity, as was society,” they said.
The judge’s decision was necessary, they said, to “uphold the public’s confidence in the judicial system.”
“While the community should be outraged by the police and Crown conduct and attitude in this proceeding, the community can also take comfort in her honour’s protection of all Canadians’ fair trial rights, and the Canadian Charter of Rights and Freedoms. ”
