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Criminal - Stays. 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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