If a defendant would not have exercised a right that was breached, can a stay of proceedings be ordered arising from the breach?
Whether stays of proceedings could be available on the ground that official misconduct undermined the integrity of the justice system where a police operation involved the simultaneous arrest of several people at different locations without giving all of them proper access to legal advice, was considered in R v Brunelle, 2024 SCC 3.
Not all the defendants had been denied timely access to legal advice, and some didn’t want legal advice, but the procedure adopted by the police had become standard practice. If that practice did undermine the integrity of the justice system, could it require a stay of proceedings for some, or all, of the defendants?
O’Bonsawin J, delivering the leading judgment (Rowe J agreed but offered some clarification), noted that the Canadian law on abuse of process is well settled [27]. Here, the concern is with what is called the “residual category” of abuse of process, which is abuse that does not compromise trial fairness but which nevertheless undermines the integrity of the justice system. The novelty of the questions in this case is referred to at [30].
What are the requirements for standing? Standing means having the right to apply for the relief sought. “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.” [39] Of course, an allegation has to be proved, and failure to prove taint here will result in failure to show standing. Taint of the proceedings is sufficient, and personal prejudice is not required [49]. The connection between the misconduct and the taint must be a sufficient causal connection [54], as where it occurred in the course of the investigation or police operation targeting the defendant [56]. The defendant must satisfy the court that continuation of the proceedings against them individually would in itself do further harm to the integrity of the justice system [59].
Once standing is established, the issue of whether there would be an abuse of process in the residual category arising from the continuation of the proceedings can be considered [65].
In this appeal several breaches of the Canadian Charter were alleged to constitute abuse of process when considered together. The main specific breach was alleged to be of s 10(b), the right to retain and instruct counsel without delay and to be informed of that right. And the general right in s 7 to life, liberty and security of the person was also relied on by the defendants. To a lesser extent, the right in s 8 to be secure against unreasonable search or seizure was also relied on. The case law had established a way, or framework, for analyzing each, and the question was, how should these frameworks inter-relate? This is where Rowe J offers clarification: the specific right should be addressed first, and the more general right should only be addressed if no breach of the more specific one was proved [129] (cf [75], where the framework for analyzing the more general right is applied to get an overall perspective on whether abuse of process has been established).
Once an abuse of process has been established, and a stay of proceedings is sought, an important requirement is that there should be no other appropriate remedy for the abuse of process. For example, in some cases exclusion of tainted evidence might be a sufficient remedy. The need for an absence of adequate alternative remedy reflects the stay as a remedy that is only given in the clearest of cases [113]. The three requirements, set out there, are that continuation of the proceedings would prejudice either the defendant’s right to a fair trial or the integrity of the justice system, that there is no alternative remedy capable of redressing the prejudice, and that if these considerations do not answer whether a stay should be granted then the court must balance the interests in favour of granting a stay against the interest that society has in a having a final decision on the merits.
I must say I find it odd that this third consideration treats the preservation of the integrity of the justice system as a matter that can be balanced, or compromised. The question should be, what is required to preserve the integrity of the justice system - denunciation of the official misconduct or a final determination of the question of the defendant’s guilt or innocence?
Anyway, because of errors at first instance the Supreme Court ordered new hearings on the motions for stay of proceedings and for exclusion of evidence [110].
