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Charter - s.24(1) Stays. 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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