Test for A Stay

R. v. Babos

In the Supreme Court of Canada decision, R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, the
accused brought applications at trial to stay the proceedings based on Charter generally,
violations, for abuse of process, claiming the Crown attempted to intimate them into forgoing
their rights to trial, that the police officers misled the court about seizure of a firearm and that the
Crown used improper means in obtaining one of the accused's medical records. The trial judge
stayed the proceedings and the Crown appealed.

The Court of Appeal set aside the stay and ordered a new trial, finding that this was not an
extreme case requiring a stay.

The accused appealed to the Supreme Court and the appeal was dismissed on the basis that the
stay of proceedings was unwarranted. Moldaver J. for the majority set out the test to determine
whether a stay of proceedings is warranted [paras. 30–32]:

“30 A stay of proceedings is the most drastic remedy a criminal court can order (R. v.
Regan, 2002 SCC 12, [2002] 1 S.C.R. 297 (S.C.C.), at para. 53). It permanently halts the
prosecution of an accused. In doing so, the truth-seeking function of the trial is frustrated
and the public is deprived of the opportunity to see justice done on the merits. In many
cases, alleged victims of crime are deprived of their day in court.

31 Nonetheless, this Court has recognized that there are rare occasions—“the clearest of
cases”—when a stay of proceedings for an abuse of process will be warranted ( R. v.
O'Connor, [1995] 4 S.C.R. 411 (S.C.C.), at para. 68). These cases generally fall into two
categories: 1) where state conduct compromises the fairness of an accused's trial (the
“main” category); and 2) where state conduct creates no threat to trial fairness but risks
undermining the integrity of the judicial process (the “residual” category) (O'Connor, at
para. 73). The impugned conduct in this case does not implicate the main category.
Rather, it falls squarely within the latter category.

32 The test used to determine whether a stay of proceedings is warranted is the same for
both categories and consists of three requirements:

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” (Regan, at para. 54);

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”
(ibid., at para. 57).”

In determining the third requirement, Babos, adds five factors to consider:

1. The nature and seriousness of the impugned conduct,

2. Whether the conduct is isolated or reflects a systemic and ongoing problem,
3. The circumstances of the accused,
4. The charges, and
5. The interests of society in having the charges disposed of on the merits. (Babos at para. 41)

The Residual Category

Police excessive force cases fall into the Residual Category which requires more analysis. The
Supreme Court in Babos reaffirms that, in the Residual Category, cases warranting a stay of
proceedings will be "exceptional" and "very rare". (Babos at para. 44)

While the same test applies to both the “Main” and “Residual” categories, the Supreme Court has
added clarity to the latter.

Tobiass, at para. 91 (and re-affirmed in Regan, supra, at para. 55), holds that -

“The mere fact that the state has treated an individual shabbily in the past is not enough
to warrant a stay of proceedings. For a stay of proceedings to be appropriate in a case
falling into the residual category, it must appear that the state misconduct is likely to
continue in the future or that the carrying forward of the prosecution will offend society's
sense of justice.”

As restated by the Court of Appeal in Zarinchang, at para. 58, the concern is "not ... about
continuing prejudice to the applicant by proceeding with the prosecution" but, "[r]ather,...for the
integrity of the justice system." the Court of Appeal continues:

“However, the ‘residual category’ is not an opened-ended means for courts to address
ongoing systemic problems. In some sense, an accused who is granted a stay under the
residual category realizes a windfall. Thus, it is important to consider if the price of the
stay of a charge against a particular accused is worth the gain. Does the advantage of
staying the charges against this accused outweigh the interest in having the case decided
on the merits?”

Accordingly, the Court notes, at para. 60, judges hearing residual category applications, as here,
"will almost inevitably have to engage in the type of balancing exercise that is referred to in the
third criterion." This balancing is the five factors referred to above in Babos.

Leading Ontario Case - R. v. Singh

In R. v. Singh, the Court of Appeal built on the Supreme Court of Canada's decision in R. c.
Bellusci, and stayed the convictions against the accused pursuant to s. 24(1) of the Charter.

The facts of the case involve a heist and two co-accused. They were apprehended some time later
and both were charged with robbery and unlawful confinement. Both alleged police brutality in
relation to the statements obtained from them. Maharaj suffered serious injuries, including a
fractured rib. The appellant was less seriously injured. The Crown stayed the charges against
Maharaj.

In this case there were three extended beating periods with three different officers in a “good cop
bad cop” scenario. Here, this case falls under “residual” category (see above) and the ONCA
discusses the technical nature of the test as well as the high standard it bears at paragraphs 37 to
39 (these paragraphs are not reproduced here as they are extensive). Following this analysis, the
Court finds that this is “one of those rare cases” where a Stay is appropriate.

Singh appears to be the forefront analysis on the subject and the leading case. It repeatedly relies
on R. c. Bellusci, R. v. Pan, and R. v. Nasogaluak which are also leading cases and provide
similar principled analysis. In the interest of restrained brevity, they are not examined in-depth in
this memo.

How Much Force is Too Much? (R. v. Dickie)

The caselaw doesn’t provide a specific threshold, but Dickie does provide some guidance. Dickie
was assaulted in the sally port, going up the stairs, in the search room, and even on the way to the
hospital.

At paras 23-25 the Court provides a brief recap of the recent authorities on this subject and tries
to delineate the type of conduct caught by s. 7 of the Charter. First, in Nasogaluak - “Courts must
guard against the illegitimate use of power by the police against members of our society, given
its grave consequences.” Second, Pan leans on Nasogaluak and tempers this stating– “The use of
force that is not excessive - even force that gives rise to foreseeable injury - would not likely
amount to a breach of s. 7.” Third, the Court returns to R. c. Bellusci to reaffirm that both
positive acts of commission and failing or refusing to act could constitute s. 7 type breaches.

Following this analysis, the Trotter J. declines to interfere with the Stay provided by the lower
court.

Successful Cases

Below are two short summaries of lower court cases where police misconduct also led to stays.

R. v. Young

The most significant aspects of the police misconduct in Young case are excessive and outlined
extensively in paragraph 18 of the judgement. The Court applies the two-step test in Babos, finds
that –
 “…the state misconduct is not minor and its depth and breadth is offensive to societal
notions of fair play and decency in all the circumstances of this arrest, including Mr.
Young's condition and behaviour that night. This misconduct both undermines and is
harmful to the integrity of both law enforcement and the justice system” (para. 19).

In terms of the second stage of the test –

“…a reduction in the appropriate sentence would not provide the necessary clear
response or adequately separate the justice system from this offending behaviour. I find,
there is no alternative remedy capable of redressing the prejudice in this case short of a
stay of proceedings, in all of the circumstances (para. 22).

Out of an abundance of caution, the Court also finds that stage three (while unnecessary) would
also result in the same remedy of a Stay (para. 24).

R. v. Rawlings

Rawlings case is a circus of Charter breaches and police misconduct. It is hard to say if the use
of excessive force alone would be enough to force a Stay. The Court found breaches of ss. 7, 8,
9, and 10 – and the accused sustained several broken ribs when six officers ended up on top of
him and stayed the charges despite real evidence being found. The Court does not analyze each
section deeply, so it is unknown how important the excessive force was in the conclusion.

Unsuccessful Cases
R. v. Singh

After being observed completing what appeared to be a drug transaction, two officers
approached a SUV which Singh was driving, identified themselves and instructed him to leave
the vehicle. The accused started the vehicle, reversed, and hit Officer Savino with his mirror (the
officer was not hurt). Officer Lang through Officer Savino was in danger so he shot through the
SUV window into the accused’s torso rendering him a paraplegic. He was then pulled from the
SUV and brought to a scout car. At paragraph 141 the Court found that

“To pull the accused from his vehicle and put him on the ground given his wounds was
an excessive display of force. The attempt to drag the accused to a police car and their
attempt of placing the accused in the back seat was another example of excessive force.”

Despite this, the Court found that the excessive force used by the police in this matter is such that
a stay of proceedings is required. This case is not one of the “rare exceptions requiring a stay.” In
making this decision the Court took into account that the accused's permanent disability,
paraplegia, was not as a result of the post-arrest, excessive force. The Court did find that the
conduct of the police should be accounted for in sentencing (paras. 149-151).

R. v. Kristofferson
Kristofferson drove drunk, crashed into a parked car, fled on foot, hopped a fence, and was
arrested. During arrest, Kristofferson received a considerable number of welts to both sides of his
face and his head. P.C. Bernard received an injury to the left side of his face. Kristofferson
actively resisted arrest and tried to pull away. P.C. Bernard was able to ground Kristofferson and
place him in a headlock. While on the ground, P.C. Ross struck the defendant in the face and
body. While lying on his back he was kicked repeatedly in the head, back, face and torso. He
used his hands to try and protect his face. This violence continued after he was flipped over on to
his stomach and after the handcuffs were applied.

The court found that there was no systemic abuse, the public safety played a key role, and a Stay
fell outside the appropriate range of judicial remedies (at para. 44). At the sentencing stage,
however, the Court did conditionally stay the conviction for impaired driving.

R. v. Darteh

The eleven count Indictment alleges four counts of assault police, all relating to events that
unfolded as the four officers in question detained and then arrested the accused Darteh in front of
his home. More significantly, the Indictment alleges five counts relating to possession of a semi-
automatic handgun that the police found in Darteh's backpack during a search incident to arrest.
Finally, the Indictment alleges two counts relating to breaches of court orders as Darteh was on
bail and on probation at the relevant time.

The Notice of Application alleged s. 7 and s. 12 issues relating to Darteh's treatment while he
was in police custody. After being confronted by four police officers outside his home (one of
which repeatedly grabbed at his backpack strap) he attempted to enter his home. He was tackled
from behind, punched and kneed repeatedly in his ribs and face even after being handcuffed (at
paras. 24-25 and 32). Darteh alleged an ongoing course of significant police mistreatment, after
his arrest and while he was in police custody, but the court rejected his credibility and the factual
basis of his treatment. In light of this, the Court declined to find a s. 7 or s. 12 violation during
the period of Darteh's police custody. (at paras. 211-214).

This case was affirmed at the Ontario Court of Appeal in R. v. Darteh, 2016 ONCA 141
(CanLII).

R. v. AFS

AFS was charged with the offences of robbery with a firearm; point firearm; assault with a
weapon; disguise with intent and conspiracy to commit in relation to a robbery. AFS entered a
plea of not guilty to the charge of robbery using an imitation firearm and commenced a
Charter application on the basis that Hold-up Squad officers used excessive force by beating
AFS while he was in an interview room. The presiding judge found that if AFS could discharge
the onus (on a balance of probabilities) that he was assaulted in the manner he alleged then a stay
would be appropriate. However, AFS’s credibility was poor and he was unable to do so. Thus,
the Court found no excessive force was used by the officers in their interactions with AFS and a
Stay was denied (at paras. 102-103, and 140).