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Criminal - Stays. R. v. Rootenberg
In R. v. Rootenberg (Ont CA, 2024) the Ontario Court of Appeal considered, even if a Charter s.8 search and seizure violation had been committed, whether a stay would be merited as a criminal (Charter?) remedy:[7] On the second issue, the appellant argues that the trial judge erred in refusing to grant a stay because of strip searches to which he was subjected while in custody at the Toronto South Detention Centre awaiting trial. Most of the strip searches occurred before and after every time he left the Detention Centre for a court appearance or other reason. They also occurred before and after his shifts working in the kitchen at the Detention Centre. The appellant does not dispute that the correctional officers were authorized to conduct strip searches on these occasions. However, he takes issue with the way in which the searches were conducted. He says that most of the strip searches were conducted in open cubicles at the Detention Centre, which did not give him enough privacy, notably from female correctional staff and other inmates.
[8] We see no error in the trial judge’s analysis and conclusion that the appellant’s section 8 Charter rights were not violated. These were authorized strip searches conducted for the purpose of ensuring the safety of people at the detention centre. The trial judge acknowledged that there was room for improvement in how the searches were conducted, but that this did not rise to the level of a Charter breach. These findings were open to her on the evidence. Moreover, we agree with the trial judge’s conclusion that, even if the appellant’s Charter rights had been violated, this is not one of the “clearest of cases” that would warrant a stay of proceedings: R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31; R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411 at p. 45I. . R. v. Brown
In R. v. Brown (Ont CA, 2024) the Ontario Court of Appeal allows a Crown appeal from a Charter 7,8,9 and 24(2) breach finding that the 'Feeney warrant' used "did not authorize an unannounced entry and no exigent circumstances emerged after the warrant was issued that would justify a so-called dynamic entry", thus resulting in a trial partial stay of the charges:The trial judge’s ruling on the stay application
[31] After the Crown closed its case, the trial judge heard an application by the defence to stay all charges. Mr. Brown contended that the forcible, unannounced entry by police into his residence on October 15, 2020, violated his right to “life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”; under s. 7 of the Charter; his right against unreasonable search and seizure under s. 8; and his right against arbitration detention under s. 9.[5]
[32] The Crown conceded that the unannounced, forcible entry by police into Mr. Brown’s residence violated his rights under ss. 8 and 9. The trial judge held that it also violated Mr. Brown’s s. 7 rights.
[33] With respect to remedy, the trial judge held that the violations did not compromise the fairness of Mr. Brown’s trial, since no search was performed and no evidence was seized when the Feeney warrant was executed. The police misconduct therefore fell into the residual category of state misconduct that does not threaten trial fairness but risks undermining the integrity of the judicial process.
[34] Based on Babos, at para. 32, a stay of proceedings is warranted only if three requirements are 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”;
(2) There must be no alternative remedy capable of redressing the prejudice; and
(3) Where there is uncertainty about 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”. [Citations omitted.] ....
[41] The trial judge considered that the identities of those affected by the dynamic entry was another relevant factor. Citing R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, and R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, she found that it was “particularly egregious that, as members of a racialized community with a history of over policing which has been, and continues to be, acknowledged by our Court of Appeal and Supreme Court, [Mr. Brown and his girlfriend] were subjected to such an invasion of their dignity and privacy without judicial authorisation”.
[42] The trial judge concluded that, in balancing the competing factors, it was important that there was a remedy available, a partial stay, which provided for a disposition on the merits of some very serious charges, “while staying the charges most directly related to the impugned conduct”. Considering the unique circumstances of the case, she held that a stay of the gun-related charges but not the drug charges was a just and appropriate remedy.
....
[61] There is no principled reason why a partial stay would not be just and appropriate in some circumstances, in my view. In R. v. L.L.S., 2009 ABCA 172, 457 A.R. 113, a partial stay of charges against an accused who had been illegally strip-searched by police was upheld. The accused was charged with mischief based on her disruptive conduct prior to being brought to the police station, and with assaulting a police officer at the station after being told she would be strip-searched. The trial judge stayed the assault charge, but not the mischief charges. The accused appealed, arguing that all charges should have been stayed. The Court of Appeal of Alberta held that “[i]n deciding what remedy is ‘appropriate and just’ the trial judge is entitled to consider any temporal or causative factors, and the entire factual context”: L.L.S., at para. 3. It concluded that the partial stay order was reasonable in the circumstances.
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[67] The trial judge categorically dismissed the possibility that alternative remedies to a stay were available. In my view, she erred. Sentence reduction has repeatedly been recognized as a just and appropriate s. 24(1) remedy: R. v. Mills, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863, at pp. 974-79. In R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 60, Lebel J. identified numerous cases where a sentence reduction was ordered as a just and appropriate remedy for s. 7 breaches.
[68] Given the trial judge’s errors, I find that this court must conduct a fresh analysis of a just and appropriate remedy in this case. The court continues at paras 69-95, vacating the partial stay and ordering the trial continue.
. R. v. A.B.
In R. v. A.B. (Ont CA, 2024) the Ontario Court of Appeal considers a stay remedy, here after an abuse of process had been found:(2) A stay of proceedings is warranted
[47] The abuse of process doctrine is directed at egregious Crown conduct that either seriously compromises trial fairness or the integrity of the justice system: R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 50. This case is about whether the Crown conduct falls within the latter, residual category, serving to undermine the integrity of the administration of justice: R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 73; Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 CanLII 322 (SCC), [1997] 3 S.C.R. 391, at para. 89; R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566, at paras. 41, 59; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31; and R. v. Brunelle, 2024 SCC 3, at para. 27.
[48] On rare occasions, in the “clearest of cases”, a stay of proceedings is warranted for an abuse of process. As recently affirmed in Brunelle, at para. 29, the test for determining whether a stay of proceedings is required involves three requirements:(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). [Emphasis added.] . R. v. Husband
In R. v. Husband (Ont CA, 2024) the Ontario Court of Appeal considers a stay as a Charter remedy in a criminal case:[1] Following a trial by judge alone, Robert Husband (“the appellant”) was convicted of discharge of a restricted firearm while being reckless to the safety of others, possession of a loaded restricted firearm, and possession of a firearm while subject to a weapons prohibition. There was no dispute that the appellant suffered from mental illness. He applied for a pre-trial stay of proceedings based on breaches of his Charter rights. He represented himself at the application, trial, and sentencing after discharging his counsel at the outset of the proceedings. The trial judge found the appellant’s rights had been violated in three ways: the police breached his s. 8 rights by an unjustified and improperly conducted strip search after the appellant’s arrest; correctional authorities violated the appellant’s s. 7 rights by using excessive force following the appellant’s suicide attempt in his prison cell; and, the appellant was kept in segregation-like conditions for a period of 232 days contrary to s. 12. However, the trial judge concluded that this was not one of the “clearest of cases” that required a stay of proceedings. Instead, he found that an alternative remedy was available: taking the Charter breaches into account in sentencing, if the appellant was convicted of any of the charges he was facing.
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(i) Conviction Appeal
[7] The appellant argues the trial judge made three errors in refusing to grant a stay: first, he gave too much weight to the seriousness of the charges the appellant faced; second, he failed to give proper weight to the seriousness of the Charter violations as they related to the appellant’s physical and psychological integrity; and third, he discounted the cumulative effect of a “pattern of violations” on the integrity of the justice system. The appellant seeks to have the convictions set aside and a stay of proceedings entered.
[8] A stay of proceedings is a discretionary remedy. The standard of review we must apply is well established. Appellate intervention is only required where a trial judge misdirects themselves in law, commits a reviewable error of fact, or renders a decision that is “so clearly wrong as to amount to an injustice”: see R. v. Babos 2014 SCC 16, [2014] 1 S.C.R. 309, R. v. Bellusci, 2012 SCC 44, [2012] 2 S.C.R. 509; and R. v. Gowdy, 2016 ONCA 989, 135 O.R. (3d) 371, at para. 65.
[9] All three arguments made by the appellant can be distilled into the overarching submission that the trial judge incorrectly applied the relevant legal principles in determining that a stay was not warranted in the circumstances of this case. We reject that submission and see no basis to interfere with the trial judge’s decision to dismiss the application for a stay of proceedings.
[10] In our view, the trial judge provided cogent and comprehensive reasons for refusing to grant a stay of proceedings. He noted that a stay of proceedings is the most drastic remedy a court can order because it permanently halts the prosecution of an accused. He also correctly stated, and carefully considered, the applicable test for a stay from 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”. [11] The trial judge found the first requirement was met. While he found there was no reason to believe state conduct compromised trial fairness, he concluded, relying on Babos, at para. 35, that a case could fall in that category when conduct is “so troublesome that having a trial – even a fair one – will leave the impression that the justice system condones conduct that offends society’s sense of fair play and decency.” In short, he found that the focus is on preventing prejudice to the integrity of the justice system and he determined that the state had engaged in conduct that was offensive to fair play and decency.
[12] Under the second requirement, however, the trial judge determined that any prejudice could be adequately remedied by taking the Charter breaches into account at sentencing, if the appellant was convicted.
[13] Although not required, the trial judge went on to the third and final requirement. He noted that the offences in question were serious and that the Charter breaches were attenuated. First, although he found that the manner of search was “unacceptable”, he concluded that the decision to investigate whether the appellant was injured, as he claimed to be, was reasonable. He therefore found that the strip search was “not an egregious violation” of the appellant’s Charter rights. Second, with respect to the issue of excessive force, the trial judge noted that the appellant did not sustain any permanent injuries and that the correctional authorities were dealing with a highly emotional and panicked person when the assault took place. Finally, while the trial judge also found the appellant’s s. 12 rights were breached through the excessive use of segregation, he reasoned that the appellant’s time in segregation was largely concentrated in 2019. Since that time, the Central East Correction Centre had minimized or eliminated the use of segregation and introduced new programs for inmates. He also found it significant that the appellant had been given the opportunity to leave the unit where he was regularly subject to segregation, but declined to do so.
[14] In sum, considering the Charter violations cumulatively, the trial judge was not persuaded that this was one of those “clearest of cases” demanding a stay of proceedings. Rather, society’s interests in a trial on the merits prevailed. However, if convicted, the trial judge stated the Charter breaches would be taken into account at sentencing. We see no basis to interfere with this decision and we therefore dismiss the appeal from conviction. . R. v. Brunelle
In R. v. Brunelle (SCC, 2023) the Supreme Court of Canada considers 'stays' as a criminal remedy:C. Did the Superior Court Judge Err in Entering a Stay of Proceedings for All of the Appellants?
[112] 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) [113] 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). [114] 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. . R. v. G.B.
In R. v. G.B. (Ont CA, 2023) the Court of Appeal considered a 'stay' as a remedy for alleged disclosure breaches:[20] The applicant’s second ground of appeal is that the trial judge erred in dismissing his request for a stay of the charges against him based on what he argued were disclosure failures of the Crown.
[21] The trial judge found that the Crown’s disclosure had not in every respect been timely and complete − rather, he termed it “sub-optimal”. But he found that prosecutorial misconduct had not been made out, and that the applicant had not been deprived of a fair trial or opportunity to make full answer and defence, because, for example, the late disclosure was still in time for use in cross-examination or was of little probative value.
[22] A stay is a remedy of last resort, to be granted only in the “clearest of cases” when no other remedy can address the harm: R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at paras. 30-31 and 36-40. The trial judge’s determination that no such harm was present here and thus to refuse a stay is entitled to deference on appeal: R. v. Graham, 2020 ONCA 692, at para. 18.
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