Two Hamilton Crown lawyers made such critical errors during a murder trial that a Superior Court judge issued an “extremely rare” judicial stay, effectively halting all proceedings and freeing the defendant from one of Canada’s most serious criminal charges.
Salomon Bashir was on trial last month, charged with the second-degree murder of 23-year-old Everton Frost, when Judge Giulia Gambacorta issued a stay on what was supposed to be a month-long jury trial, despite protests from the Crown.
He said that in their Sept. 22 ruling, assistant Crown attorneys Michael Dean and Steve Kim, as well as Hamilton police, “approached the allegation with apathy and continued negligence” that jeopardized Bashir’s right to a fair trial.
Two key mistakes, Gambacorta said, were when Dean and Kim failed to disclose crucial DNA and cell phone tower evidence to the defense before the trial. That meant Bashir’s lawyers had no time to prepare their response.
“This pattern of repeated indifference contravenes those notions of fundamental justice and undermines the integrity of the judicial process, rising to the level of abuse of process,” the judge said.
He said the Crown’s conduct met the requirements for a judicial stay, “an extremely rare remedy reserved for only the clearest cases.”
DNA evidence is not shared with the defense
Hamilton police arrested Bashir, then 20, in the summer of 2023 and charged him with shooting Frost to death.
The young men had met two weeks before Frost died from gunshot wounds on Dec. 11, 2022, police said.
Bashir remained in custody as the court process unfolded and lawyers prepared for trial.
However, last January, Hamilton police received new evidence in the form of a “DNA match notification.”
They had a match to one of the DNA samples found on a blue surgical mask the Crown believed the murder suspect was wearing, Gambacorta said. Police recovered the mask on the train tracks, along with a bullet and a gun, believed to have been thrown there by the shooter after fleeing the scene.
While it was already determined that Bashir’s DNA was not on the mask, the new match was for Frost’s brother, Gambacorta said.
Police, “long in possession” of the new DNA evidence, did not notify the Crown office of the new DNA evidence until April 8 and did not alert the defense, Gambacorta said.
It was not until the second day of Bashir’s trial that the Crown handed over the evidence to his lawyers.
“The record lacks any explanation of how such critical evidence could remain undisclosed,” Gambacorta said.
Police did not respond to CBC Hamilton’s request for comment.
Cell tower map missing
The Crown also had cell phone tower data, which it would have attempted 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, Gambacorta said.
But the Crown did not inform the defense that it would call three experts until the eve of the trial. They also did not begin the process of obtaining the map until after the trial began.
When these errors came to light, the defense requested that the proceedings be suspended. The Crown objected and asked the judge to declare the mistrial and schedule a new trial in its place. The Crown argued the errors were “inadvertent” and could be addressed before a new trial.
But Gambacorta ruled that the Crown’s conduct met the high standard for a judicial stay. He also noted that Bashir had been in protective custody for more than 26 months and that rescheduling the trial for sometime in 2026 would violate his right to have the case heard within a reasonable time.
“Especially when an offender is incarcerated awaiting trial, I find this history so problematic that having a trial will leave the impression that the justice system condones or tolerates this type of behavior,” Gambacorta said.
Defense says defendants are “deprived” of a fair trial
The last time a murder charge was stayed due to an abuse of process in Ontario was likely more than 20 years ago, defense lawyers Laura Giordano and Ian McCuaig said in a statement.
They said they were particularly concerned about “the apparent lack of interest” shown by the Crown office in the outcome.
“To our knowledge, there has been no public effort by the Crown office to investigate or address the ‘indifferent’ and ‘indifferent attitude’ displayed by the Crown in this case, especially in a case involving the most serious crime of murder,” the defense said, citing 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 steps have been taken to avoid a similar outcome in the future.
Bashir, who has always said he was innocent, hoped for a fair trial, Giordano and McCuaig said.
“Mr. Bashir was deprived of this opportunity, as was society,” they said.
They said the judge’s decision was necessary to “maintain public confidence in the judicial system.”
“While the community should be outraged by the conduct and attitude of the police and the Crown in these proceedings, the community can also be comforted by the protection of its honor by the fair trial rights of all Canadians and by the Canadian Charter of Rights and Freedoms.”
