R. v. Brunelle, 2021 QCCA 13172024 SCC 3 (39917)

“During a large‑scale police operation arising out of an investigation into allegations of organized narcotics trafficking, 31 persons were arrested. They were divided into four different groups for separate trials. The accused in group 1, who were to be tried first, filed a motion for a stay of proceedings under s. 24(1) of the Charter on the basis that the police investigation and operation that led to the court proceedings against them were vitiated by an abuse of process. Specifically, they alleged that an accumulation of infringements of their constitutional rights under ss. 8 and 10(b) of the Charter met the threshold for establishing an abuse of process in the residual category for all of them, even though several of them were not the victims of any of these infringements. The accused in groups 2, 3 and 4 filed motions similar to the one filed by group 1.

The first instance judge entered a stay of proceedings for all of the accused in group 1. He held that the police practice of postponing the exercise by the accused of the right to retain and instruct counsel without delay until they were taken to the police station infringed the right of all of the accused in that group under s. 10(b) of the Charter. Relying on the cumulative effect of these infringements, which he considered to be the most serious ones, and other infringements and violations of the prescribed procedures, the judge held that there had been an abuse of process in the residual category. Groups 2, 3 and 4 and the Crown agreed that the decision rendered with respect to group 1 was applicable to those groups, and a stay of proceedings was also entered for them. The Court of Appeal allowed the Crown’s appeals, set aside the two judgments and ordered that a new trial be held, including a new hearing on the motion, on the ground that some of the accused did not have standing to obtain a stay of proceedings and that the first instance judge had failed to determine whether each accused’s s. 10(b) right had been infringed before finding an abuse of process under s. 7. The accused appeal to the Court.”

The SCC (7:0) dismissed the appeal. 

Justice O’Bonsawin wrote as follows (at paras. 2-5, 38-39. 53-63, 109-114, 118):

“The unusual nature of the alleged abuse of process raises two main questions. The first relates to the standing of the appellants who, for one reason or another, were not the victims of any of the infringements constituting the abuse or of any breach of trial fairness. In the absence of any personal prejudice, it must be asked whether these appellants were entitled to apply for a remedy under s. 24(1) of the Charter.

The Superior Court answered this question in the affirmative and, after finding that there had been an abuse of process in the residual category under s. 7 of the Charter, entered a stay of proceedings for all of the appellants under s. 24(1). On appeal, the Quebec Court of Appeal ordered a new trial for all of the appellants on the ground that the Superior Court had failed to ascertain whether each of them had standing to obtain a stay of proceedings. The Court of Appeal was of the view that if the Superior Court had done so, it would have concluded that some appellants did not have standing to obtain a remedy under s. 24(1).

The Court of Appeal was also of the view that ascertaining the appellants’ standing required the Superior Court to determine whether each appellant’s right under s. 10(b) of the Charter had been infringed, which it had not done. Moreover, standing had to be ascertained before the Superior Court considered whether there had been an abuse of process in the residual category under s. 7. This layering of analytical frameworks raises the second main question in this appeal: What approach should a court take in determining whether there has been an abuse of process in the residual category that, while falling under s. 7 of the Charter, nonetheless results from an accumulation of infringements of other Charter rights? Indeed, what needs to be considered is how to reconcile the relevant frameworks, that is, the s. 7 framework and the frameworks for ss. 8 and 10(b) of the Charter.

… I would dismiss the appeal, partly for the reasons given by the Court of Appeal. Unlike that court, I am of the view that all of the appellants have standing to apply for a remedy under s. 24(1) of the Charter even though some of them were not the victims of any of the infringements constituting the alleged abuse of process or of any breach of trial fairness. However, I agree with the Court of Appeal that the Superior Court had to determine whether each appellant’s right under s. 10(b) of the Charter had been infringed and that it failed to do so, thereby committing a reviewable error. In light of the appellants’ arguments, that determination had to be made in order to decide whether the infringements as a whole met the threshold for abuse of process in the residual category. This is therefore a situation in which the frameworks for ss. 8 and 10(b) of the Charter are complementary to the s. 7 framework. Finally, I am of the view that the Superior Court also erred in entering a stay of proceedings for all of the appellants without first considering less drastic remedies that could have fully redressed the prejudice to the integrity of the justice system that it thought it had identified. These errors justify holding new trials, including new hearings on the appellants’ motion for a stay of proceedings and for the exclusion of evidence.


 

…I conclude that all of the appellants had standing to apply for a stay of proceedings under s. 24(1). An accused has standing to apply for a remedy under s. 24(1) where they allege that one of their Charter rights has been infringed. The s. 7 right is one of these rights. It protects accused persons from abuse of process in the residual category. This type of abuse of process occurs where state conduct is unfair or vexatious to such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the justice system, regardless of its impact on the accused’s other constitutional rights or on the fairness of their trial.

However, this does not mean that every accused will have standing to apply for a remedy under s. 24(1) of the Charter on the basis of any abusive state conduct, no matter what the causal connection between that conduct and the proceedings against them. To have standing, the accused must allege that the abusive conduct tainted the police investigation or operation targeting them or the court proceedings against them. In this case, each of the appellants meets this requirement, since all of them assert that they were directly targeted by the police investigation and operation that resulted in the alleged abusive conduct.


 

However, the fact remains that an accused’s s. 7 right may be infringed as a result of state conduct that meets the threshold for establishing an abuse of process in the residual category without the accused having suffered any personal prejudice, such as another of their constitutional rights being impaired or the fairness of their trial being compromised.

This does not mean that every accused will have standing to apply for a remedy under s. 24(1) on the basis of any state conduct that undermines the integrity of the justice system, regardless of the causal connection between the abusive conduct and the proceedings against them. For a court to find that an accused’s right under s. 7 of the Charter has been infringed as a result of an abuse of process in the residual category, there must be a “sufficient causal connection” between the abusive conduct and the proceedings against the accused (Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at paras. 75‑78). 

…the causal connection between, on the one hand, the state conduct that undermines the integrity of the justice system and, on the other, the engagement of the accused’s interests protected by s. 7 of the Charter, that is, life, liberty and security of the person, will be considered sufficient where the criminal proceedings against the accused are “tainted” (in French, entachées) by the abusive conduct (see R. v. Conway, [1989] 1 S.C.R. 1659, at p. 1667).

The proceedings against an accused will be regarded as tainted where abusive conduct occurred in the course of the proceedings or in the course of a police investigation or operation that targeted the accused or otherwise served to gather evidence to prove that the accused was guilty of the charge or charges laid against them. Obviously, the abusive conduct need not have had an impact on the accused’s other Charter rights or on the fairness of their trial in order to meet this requirement. It need only have occurred in the course of the investigation or police operation targeting the accused or the criminal proceedings against them. In the absence of this connection, I have difficulty seeing how the accused’s life, liberty and security of the person are engaged by the abusive conduct.

This requirement is consistent with the purpose of the doctrine of abuse of process in the residual category, which is to enable courts to protect the integrity of the justice system by dissociating themselves from state conduct that constitutes an abuse of the judicial process (D. M. Paciocco, “The Stay of Proceedings as a Remedy in Criminal Cases: Abusing the Abuse of Process Concept” (1991), 15 Crim. L.J. 315, at p. 338). When there is no connection between the abusive conduct and the proceedings against the accused, the fact that the court dissociates itself from the conduct will not have the effect of preserving the integrity of the justice system.

This requirement is also consistent with the applicable framework for granting a stay of proceedings under s. 24(1) of the Charter. This framework, which involves three cumulative conditions, is used to screen applications for stays of proceedings to ensure that this remedy is available only in the “clearest of cases”, which excludes cases in which the proceedings against the accused are not already tainted by abusive conduct.

This can be confirmed simply by looking at the first condition, which reflects the fact that a stay of proceedings is a prospective remedy (Tobiass, at para. 91; Regan, at para. 54). This condition is aimed at preventing the perpetuation of prejudice to the integrity of the justice system that, if left alone, will continue to trouble the parties and the community as a whole in the future (O’Connor, at para. 75; Tobiass, at para. 91; Regan, at para. 54; Nixon, at para. 42; Babos, at para. 35). To this end, the court must ask whether “proceeding in light of the impugned conduct would do further harm to the integrity of the justice system” (Babos, at para. 38). This question cannot be divorced from the specific context of the court proceedings against each accused, since those are the proceedings for which a stay is sought (Paciocco, at p. 341). In other words, to meet the first condition for establishing that a stay of proceedings is an appropriate remedy, the accused must satisfy the court that carrying on with the proceedings against them would in itself do further harm to the integrity of the justice system.

But it is only where the proceedings against an accused are tainted by abusive conduct that the accused can argue that refusing to stay the proceedings will manifest, perpetuate or aggravate prejudice to the integrity of the justice system, as required by s. 24(1) of the Charter. Conversely, where the proceedings against the accused are not first tainted by abusive state conduct, the accused’s application for a stay of proceedings under s. 24(1) on the basis of the abuse will have no chance of success. For this reason, it is entirely logical and desirable that such an accused not have standing to apply for a stay of proceedings under s. 24(1) on the basis of that conduct.

Finally, the condition requiring that the proceedings be tainted by abusive conduct is consistent with the case law. In R. v. Castro, 2001 BCCA 507, 47 C.R. (5th) 391, the British Columbia Court of Appeal had to determine whether the accused Mr. Castro and his co‑accused had standing to apply for a stay of proceedings on the basis of an abuse of process in the residual category in a context where there was only an indirect connection between the abusive conduct and the court proceedings against them. The case concerned two related investigations: Project Escudo and Project Eye Spy. The latter was an undercover operation targeted at money laundering and drug trafficking. It led to Mr. Castro being identified as a possible drug trafficker. Project Escudo was then put in place to target Mr. Castro directly and was conducted in parallel with Project Eye Spy. The Crown argued that the accused, including Mr. Castro, did not have standing to assert the illegality of the transactions conducted as part of Project Eye Spy because Mr. Castro and his co‑accused were not alleging that they had participated in those transactions (para. 26). The Court of Appeal rejected that argument on the ground that the proceedings against Mr. Castro and his co‑accused were tainted by the abusive police conduct associated with Project Eye Spy:

  • In summary, the appellants have standing to argue the illegality of the police conduct in Project Eye Spy because it was intended to produce and in fact produced evidence directly leading to the appellants’ prosecution. The conduct formed a sufficiently close link with the prosecution that it can be reasonably argued that the prosecution is tainted with illegality. Whether this amounts to an abuse of process requiring a stay will be for the judge who hears the matter to decide in light of all the circumstances, including the legal opinions. [Emphasis added; para. 39.]

Babos provides another illustration. In that case, one of the three forms of misconduct that Mr. Babos alleged against the Crown in support of his application for a stay of proceedings under s. 24(1) of the Charter for abuse of process in the residual category was a Crown attorney’s use of improper means to obtain the medical records of his co‑accused, Mr. Piccirilli, from the detention centre where the latter was being held pending trial. Even though that conduct was not directed at Mr. Babos and did not affect the proceedings against him in any way, it occurred during his criminal proceedings, and no one questioned the fact that, like Mr. Piccirilli, he had standing to allege it in support of his application for a stay of proceedings.

 It follows that one of the essential elements that must be shown for an accused to establish that their right under s. 7 of the Charter has been infringed as a result of an abuse of process in the residual category is that the abusive conduct tainted the proceedings against them. An accused who does not allege expressly or implicitly that the abusive state conduct tainted the proceedings against them will therefore not have standing to apply for a remedy under s. 24(1) on the basis of such conduct.


 

In light of the reasons set out above, I conclude, as the Court of Appeal did, that the Superior Court judge erred in holding that the right of all of the appellants in group 1 to retain and instruct counsel without delay had been infringed. Because the infringements of this right were, in his view, the most serious ones, his conclusion that the appellants in group 1 were the victims of an abuse of process in the residual category must be set aside.

Since the Superior Court judge did not carry out the individualized analysis required by s. 10(b) of the Charter to determine whether the right of the appellants in group 1 to retain and instruct counsel without delay had been infringed, this Court is faced with the choice of affirming the Court of Appeal’s judgment ordering a new hearing on their motion or taking on the role of trier of fact. Given the highly circumstantial nature of the analysis, I am of the view that it is in the interests of justice for there to be a new hearing on the motion brought by the appellants in group 1.

The question of whether the same holds true for the motion brought by the appellants in groups 2, 3 and 4 will be discussed below. Before answering this question, I consider it necessary to point out another error made by the Superior Court judge at the stage of determining the appropriate remedy for the appellants in group 1, in case it is held again, after the new hearing on the motion, that the threshold for establishing abuse of process in the residual category is met.

 A stay of proceedings has been characterized as the “ultimate remedy” (Tobiass, at para. 86) because of its finality:

  • It is ultimate in the sense that it is final. Charges that are stayed may never be prosecuted; an alleged victim will never get his or her day in court; society will never have the matter resolved by a trier of fact.
     (Regan, at para. 53)

For these reasons, and as I noted above, this drastic remedy will be granted only where the situation meets the high threshold of being one of the “clearest of cases” (O’Connor, at para. 69). This requires the following three conditions to be met:

  • (1)   there must be prejudice to the accused’s right to a fair trial or to the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” (Regan, at para. 54; Babos, at para. 32);
  • (2)   there must be no alternative remedy capable of redressing the prejudice (Regan, at para. 54; Babos, at para. 32);
  • (3)   where there is still uncertainty over whether a stay of proceedings is warranted after steps 1 and 2, the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits” (Regan, at para. 57; Babos, at para. 32).

These conditions are cumulative, and none of them is optional. With respect, I am of the view that the Superior Court judge failed to ensure that the second condition was met in this case.


 

I would add that this failure to consider lesser remedies is especially significant in a context where several accused persons apply for a remedy under s. 24(1) of the Charter on the basis of the same abuse of process that affected them in different ways. In such circumstances, the court may very well conclude that the remedy that would fully redress the prejudice to the integrity of the justice system caused by the abuse involves individualized orders. After all, it is important to remember that the Charter has now put into judges’ hands a scalpel instead of an axe — a tool that may fashion, more carefully than ever, solutions taking into account the sometimes complementary and sometimes opposing concerns of fairness to the individual, societal interests, and the integrity of the judicial system.
(O’Connor, at para. 69).”