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Charter - s.24(1) Stays. R. v. Diakoloukas [Charter s.24(1) stay remedy]
In R. v. Diakoloukas (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, here brought against conviction for "one count of possession of child sexual abuse and exploitation material (“CSAEM”)".
The court considers a Charter s.24(1) stay remedy, here for Charter 8 and 9 breaches:d. Remedy
[155] I now turn my attention to the appropriate remedy for the breaches of ss. 8 and 9 that occurred in this case.
[156] The appellant seeks to have his conviction set aside and a stay of proceedings entered pursuant to ss. 686(2) and (8) of the Criminal Code: R. v. Bouvette, 2025 SCC 18, 503 D.L.R. (4th) 579, at para. 59; R. v. Rees, 2025 ONCA 812, 454 C.C.C. (3d) 143, at paras. 172-76; and R. v. Hinse, 1995 CanLII 54 (SCC), [1995] 4 S.C.R. 597, at pp. 619-20. He claims that a stay is the appropriate remedy given the seriousness of the state conduct in issue and the fact that it was so subversive of this court’s release order. In essence, the appellant argues that to allow the conviction to stand and require the sentence to be served would undermine the integrity of the judicial process. If this court does not grant a stay, the appellant seeks a sentence reduction.
[157] The respondent acknowledges that the Charter breaches are serious but says that, properly applied, the law calls for declaratory relief. Should this court conclude that a declaration is not a sufficient remedy, the respondent submits that a sentence reduction is appropriate.
[158] As I will explain, a stay of proceedings is not appropriate. Instead, I would grant a sentence reduction.
i. A stay of proceedings is not warranted
[159] The parties made their submissions based on the framework for a stay of proceedings in response to an abuse of process. In R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31, Moldaver J. broke down abuses of process into two categories:(1) Where the state conduct compromises the fairness of an accused’s trial (main category); and
(2) Where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (residual category). [Emphasis added.] [160] The parties agree, as do I, that only the second, residual category is implicated in this case. The appellant’s claim of abuse of process rests on “an accumulation of infringements” of procedural Charter rights, namely ss. 8 and 9: R. v. Brunelle, 2024 SCC 3, 488 D.L.R. (4th) 581, at para. 69. It is therefore appropriate to apply the framework for abuse of process in the residual category: Brunelle, at para. 71. The court must begin by assessing the Charter breaches under their own frameworks, as was done earlier in this judgment, before determining “whether all of the infringements, considered together, amount to conduct that is vexatious to such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the justice system”: Brunelle, at para. 75.
[161] The test for determining whether a stay of proceedings should be imposed is the same for both categories. That test is set out as follows in Babos, at para. 32:(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, perpetuated or aggravated through the conduct of the trial, or by its outcome;
(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 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 [Emphasis added; citations removed.] [162] When it comes to the residual category, the prejudice component of the test focusses on whether the state conduct is “offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system”: Babos, at para. 35. Of course, this part of the test must be adapted for this situation, given that the trial and sentencing are complete. Here, the question is whether maintaining the conviction and having the appellant serve the sentence would amount to judicial condonation of the Charter breaches. Answering that question requires a forward-looking approach, one that does not seek to remedy past wrongs but rather seeks to protect the justice system going forward.
[163] As for whether there are lesser remedies to a stay of proceedings, again, the residual category trains its focus not on providing “redress to an accused for a wrong that has been done to him or her in the past”, but on “whether an alternate remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward”: Babos, at para. 39. A stay of proceedings is not only the most “drastic” remedy known to criminal law, but it should only result in “exceptional” circumstances, in the “clearest of cases” and on “very rare occasions”: Babos, at paras. 31, 44.
[164] Only if necessary does the court move to the third prong of the test, the balancing. Balancing occurs when there is uncertainty as to whether a stay is appropriate after the first two parts of the test have been completed. If the residual category alone is in play, the balancing stage takes on particular importance: Babos, at para. 41. When engaged in this balancing, the court will look to various factors, including the seriousness of the impugned state conduct, whether there is a systemic or ongoing problem, the accused’s circumstances, “the charges he or she faces, and the interests of society in having the charges disposed of on the merits”: Babos, at para. 41.
[165] Undoubtedly, those who seek a stay of proceedings under the residual category have an “onerous burden”: Babos, at para. 44.
[166] Applying the test for a stay of proceedings under the residual category, I conclude that a stay is not available because there is an alternative, less drastic remedy capable of redressing the prejudice to the integrity of the justice system.
[167] As I have explained, the appellant was subjected to serious breaches of his ss. 8 and 9 Charter rights. Not only was this court’s release order held in abeyance long past what was reasonably required to complete Appendix A, but the appellant was strip searched at Maplehurst when the Records Department was long on notice that the release order existed.
[168] Court orders are not suggestions. They are orders and must be complied with. Few things are more central to sustaining the rule of law than the need for all, especially justice system participants, to respect and follow court orders. . R. v. Burke
In R. v. Burke (Ont CA, 2025) the Ontario Court of Appeal considered doctrine regarding Charter s.24(1) stays (as a remedy):[12] Section 24(1) remedy and stays: A stay is only imposed in the “clearest of cases” as a remedy of last resort: R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309; R. v. Brunelle, 2024 SCC 3, 488 D.L.R. (4th) 581, at paras. 112–13; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297; R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 69. Where trial fairness and the integrity of the justice system are not materially impaired, alternative remedies suffice (e.g., limiting instructions, tailoring of similar-fact evidence use, weight and credibility adjustments, disassociation of the justice system from the impugned state conduct going forward), a stay is not warranted. If there is any uncertainty concerning the integrity branch, a stay is inappropriate if the balance of interests favours trial: Babos, at paras. 34-44.
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[19] .... The appellant sought a stay of proceedings. The trial judge then asked the correct questions under the first step of the Babos stay test: (i) did those losses cause actual prejudice to trial fairness; and (ii) if not, did they nonetheless warrant a stay to protect the integrity of the justice system?
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[22] .... Stays grounded solely in the integrity branch are exceedingly rare. This is not one of those rare cases. Unlike the deliberate and systemic destruction of evidence by a state-funded agency in R. v. Carosella, 1997 CanLII 402 (SCC), [1997] 1 S.C.R. 80, there is no evidence of bad faith, deliberate destruction or systemic misconduct here. As well, the trial judge adopted proportionate alternatives: she limited the use of similar-fact reasoning, weighed the missing items against the Crown’s burden of proof, and directed herself to consider how the gaps might reasonably assist the defence. That sufficed to vindicate the interest in preserving the justice system’s integrity without the blunt-force remedy of a stay. . R. v. Gilmore-Bent
In R. v. Gilmore-Bent (Ont CA, 2025) the Ontario Court of Appeal dismissed a Crown criminal appeal, here from a Charter s.24(1) stay of proceedings granted after the trial judge found a correctional officer violated the defendant's "Charter rights by using excessive force against him when the officer gratuitously sprayed Mr. Gilmore-Bent with pepper spray while he was in custody awaiting trial".
Here the court considers abuse of process grounds for the ordered criminal stay:(5) Did the trial judge misapply the test for a stay of proceedings by disregarding the lack of connection between the assault and the prosecution and rejecting a sentence reduction?
[55] There are, of course, two alternative bases for finding an abuse of process that may justify a stay: “conduct that compromises trial fairness (‘main category’) and conduct that, without necessarily threatening the fairness of the accused’s trial, nevertheless undermines the integrity of the justice system (‘residual category’)”: R. v. Brunelle, 2024 SCC 3, 488 D.L.R. (4th) 581, at para. 27; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31. The trial judge stayed the charges against Mr. Gilmore-Bent for the residual purpose of protecting the integrity of the justice system, even though the misconduct by the correctional officers had no impact on trial fairness. Before doing so, the trial judge accurately set out the test for a stay of proceedings to remedy a Charter violation.
[56] The Crown argues that despite stating the law correctly, the trial judge misapplied the test for a stay of proceedings in two ways. First, she imposed a stay in the absence of the required connection between the misconduct by correctional officers and the prosecution of the case. Second, she contravened the precondition for a stay that confines the remedy to cases where there is no alternative remedy capable of redressing the prejudice. I do not accept either submission.
[57] I agree with the underlying principle relied upon by the Crown in making its first submission. A court cannot stay criminal proceedings because of misconduct unconnected to those proceedings. As O’Bonsawin J. noted in Brunelle, at para. 57, “When there is no connection between the abusive conduct and the proceedings against the accused, the fact that the court disassociates itself from the conduct [by staying the proceeding] will not have the effect of preserving the integrity of the justice system.” However, in my view, the Crown is pursuing an unduly narrow conception of the kind of connection that is required.
[58] It relies heavily on passages from Brunelle, at paras. 39 and 55, that, in discussing the issue of standing, referred to abusive conduct that either arises in the police investigation or operation, or taints the court proceedings. Relatedly, the Crown emphasizes that the misconduct in this case was perpetrated not by the prosecuting Crown or the police, but by prison guards who had custodial charge of Mr. Gilmore-Bent eight months after his arrest, and who had no influence over the trial or its outcome.
[59] The Crown’s submissions do not persuade me that the requisite connection was lacking or that the trial judge failed to consider the strength of that link. It is settled law that abuse by correctional officers can taint pending court proceedings. As the trial judge pointed out, in R. v. Bellusci, 2012 SCC 44, [2012] 2 S.C.R. 509, Fish J., for the Supreme Court, upheld a stay of proceedings of charges after a prison guard provoked and then assaulted the accused while transporting Bellusci between a courthouse and a penitentiary. I would not read Bellusci narrowly as confined to cases where the proceeding arises directly from the incident involving the abuse. In the case at hand, not only were the correctional officers the state agents who were given charge of Mr. Gilmore-Bent pending his trial on the charges before the trial judge, but some of the misconduct by the correctional officers occurred while they were testifying at the trial itself, in a motion properly before the trial judge. The required connection between the misconduct and the proceedings exists.
[60] Indeed, I would caution against taking the kind of narrow approach the Crown promotes in conceptualizing how trials can be tainted by state misconduct. Requiring the misconduct to arise from the manner the case is prosecuted, or the way in which trial evidence is gathered, would shrink the residual category for staying proceedings by largely merging it with the main trial fairness category. As L’Heureux-Dubé J. commented in the seminal decision on remedial Charter stays, R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 73:The residual category does not relate to conduct affecting the fairness of the trial or impairing other procedural rights enumerated in the Charter, but instead addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness and vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the process. [Emphasis added.] A narrow approach can only disable the opportunity to use this remedy in “the panoply of diverse and sometimes unforeseeable circumstances” where it may be warranted.
[61] I would also reject the Crown’s attempt to co-opt, in support of its insufficient connection argument, one of the trial judge’s reasons for rejecting a sentence reduction. The trial judge concluded that a sentence reduction would not be a suitable remedy for “the obstruction of justice and false testimony” because such misconduct has no connection to the sentencing exercise. In making this finding the trial judge was not saying that this misconduct was unrelated to the integrity of Mr. Gilmore-Bent’s prosecution. She was making the salient point that to properly mitigate sentence, a Charter breach must “bear the necessary connection to the sentencing exercise”: Nasogaluak, at para. 48; R. v. Claros, 2019 ONCA 626, at para. 71. I see no error in the trial judge’s conclusion that the obstruction of justice and false testimony were not appropriately remedied by a sentence reduction. Nor does her finding on this point assist the Crown theory that the connection between the misconduct and the trial was insufficient to warrant a stay.
[62] I am also unpersuaded by the Crown’s alternative submission that the trial judge failed to respect the “no alternative remedy” component of the test for a stay by ruling out a sentence reduction. The trial judge fully understood the “no alternative” requirement. She described it, considered it, and found that a sentencing reduction was not an available alternative remedy, not only for the reason I have just described, but also because Mr. Gilmore-Bent had already spent so long in custody pending his trial that he was liable to receive a sentence equivalent to time-served, without any such reduction. This conclusion was available to her.
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