Stays of proceedings in the residual category - analyzing multiple alleged rights breaches: R v Brunelle, 2024 SCC 3

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].

Appellate review of grounds for prosecution: Attorney-General of Trinidad and Tobago v Harridath Maharaj [2024] UKSC 1

The Privy Council’s recent consideration of the tort of malicious prosecution is of some interest to criminal lawyers insofar as it considers the proper appellate approach to the different issues of malice and the sufficiency of grounds for prosecution: Attorney-General of Trinidad and Tobago v Harridath Maharaj [2024] UKPC 1 (25 January 2024).

Whether the prosecutor was motivated by malice is a question of fact, which would only have needed to be considered here if there were insufficient grounds for the bringing of the prosecution or if bringing the prosecution was unreasonable in the circumstances. Sufficiency and reasonableness are matters to be assessed by evaluative assessment. On questions of fact, an appellate court will assess the record of the evidence as best it can, and will endeavour to make up its own mind about what the facts were [64]. This is a process that in New Zealand we call evaluative judgement. [1] But on the sufficiency and reasonableness issue, which was the issue in this appeal, the appellate court will recognise that reasonable minds may differ, and the appeal is analysed by way of review [66]. Here, the grounds for prosecuting were, after analysis, found to be sufficient and the decision to prosecute was reasonable [77], so the question of malice did not need to be considered by the Board (and in any event there was nothing on the record to suggest malice) [79]. The reasonableness aspect of the decision to prosecute is summarised in the recognition that the prosecutor viewed the available evidence with proper caution and took into account evidence in favour of the defendant [77].

This appeal illustrates how different issues are analysed in different ways on appeal. [2] Here, the logical structure put the issue that required review (or what the Board calls “evaluative assessment”) before the issue - which did not need to be considered in this appeal - of fact, namely whether the prosecutor acted maliciously. As far as the tort of malicious prosecution is concerned, if there are proper grounds for a prosecution and the decision to prosecute is reasonable then the plaintiff fails. If there had not been proper grounds to prosecute, or if the decision to prosecute had been unreasonable, the issue would have been whether the prosecutor had acted maliciously.

Often, the logical structure will be the other way around: facts before discretion, as where a factual threshold has to be satisfied before a discretion is exercised.

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[1] I use the spelling judgement because that’s a way to distinguish between the process and the result. The reasonableness of the decision to prosecute is subject to appellate review. This is clear at [66]. Whether the decision to prosecute was supported by reasonable and probable cause is an issue that requires what the Board calls assessment, and this is different from the exercise of determining a fact. I call the former a discretion because it is analysed on appeal by way of review, and the latter an evaluative judgement because on appeal the analysis is of the sort described at [64]. "Review" and "evaluative judgement" are both terms currently applicable to the differing analyses in New Zealand case law. Usually a prosecutor's discretion is confined within narrow limits, but for some offences an alternative to prosecution, such as diversion, may require consideration and the discretion is more obvious.

[2] No one claims that it is always easy to distinguish between appeals against determinations of fact (often classified as general appeals) and appeals against exercises of discretion: Kacem v Bashir [2010] NZSC 112 at [32]. But there is nothing that is in this context discretionary about fact finding: deciding what evidence to accept is a matter of judgement.