R. v. BRUNELLE, 2024 SCC 3, JANUARY 26, 2024.

FACTS: A number of accused (31) were charged with offences related to production of and trafficking in controlled substances, contrary to the Controlled Drugs and Substances Act.  Upon arrest, they were advised of their right to contact counsel, but their ability to do so was delayed. The Supreme Court described what occurred in the following manner (at paragraphs 10 and 11):

All of the appellants acknowledge that they were informed of their right to retain and instruct counsel without delay at the time they were arrested. However, the evidence shows that they did not all respond in the same way: many indicated a desire to exercise their right as soon as they were informed of it, some did not ask to exercise their right until they were at the police station, and the others said that they did not wish to retain and instruct counsel or that they had already done so.

In the end, out of the appellants who were arrested the morning of March 31, 2016, and who indicated a desire to immediately exercise their right to retain and instruct counsel without delay, only one was given an opportunity to do so while in the police vehicle. The others had to wait until they arrived at the police station. The time between being arrested and being given an opportunity to contact counsel ranged from 23 minutes to 1 hour and 6 minutes, depending on the case. No one was questioned during that time. It should also be noted that one of the appellants arrested later in the day or during the days that followed surrendered himself to the authorities at the courthouse while accompanied by his lawyer and that another of them was arrested at the airport, where he retained and instructed counsel.

After completion of the preliminary inquiry, the accused were “divided into 4 different groups for separate trials. On March 16, 2018, the seven appellants in group 1, who were to be tried first, filed a motion for a stay of proceedings and for the exclusion of evidence”, arguing that (see paragraph 14):

(i) failure to facilitate the requested access to counsel at the first reasonably available opportunity during the police operation on March 31, 2016, which allegedly resulted in the infringement of the right to retain and instruct counsel without delay guaranteed by s. 10(b) of the Charter;

(ii) failure to give notice of a covert search within the allotted time, which allegedly resulted in the infringement of the right to be secure against unreasonable search or seizure guaranteed by s. 8 of the Charter;

(iii) execution of search warrants outside the judicial district of the authorizing justices without the warrants being endorsed within the meaning of the former s. 487(2) of the Criminal Code, which also allegedly resulted in the infringement of the right to be secure against unreasonable search or seizure guaranteed by s. 8 of the Charter.

The application judge granted the motion and entered a stay of proceedings in relation to each accused (2018 QCCS 6155).

The accused in groups 2, 3 and 4, filed motions similar to the one filed by group 1. The Crown agreed that the decision regarding group 1 was applicable to groups 2, 3 and 4.  The second application judge also entered a stay of proceedings (2019 QCCS 6006).

The Crown appealed. The Quebec Court of Appeal set aside the stays.  An appeal was taken to the Supreme Court of Canada. The Supreme Court of Canada described  the Court of Appeal’s reasoning in the following manner (at paragraph 23):

The Court of Appeal allowed the appeals, set aside the two judgments rendered by the Superior Court and ordered that a new trial be held, including a new hearing on the motion for a stay of proceedings and for the exclusion of evidence, before a different judge. In its analysis, the Court of Appeal began by noting that because the rules on standing (it used the French term “qualité pour agir”) (para. 55) provide that a remedy can be granted only to a person whose own constitutional rights have been infringed, it was therefore necessary to assess the situation of each appellant on a case‑by‑case basis. The Court of Appeal found that the Superior Court judge had erred in adopting an approach that led him to enter a stay of proceedings for all of the appellants without first assessing whether the right to retain and instruct counsel without delay guaranteed to each of them by s. 10(b) of the Charter had been infringed. It also noted that some of the appellants had said that they did not wish to speak to counsel after being informed of their right, while others had had an opportunity to do so immediately after being arrested.

The Supreme Court indicated that the appeal raised two issues (at paragraphs 2 and 4):

The first relates to the standing of the appellants who, for one reason or another, were not the victims of any of the infringements constituting the abuse or of any breach of trial fairness. In the absence of any personal prejudice, it must be asked whether these appellants were entitled to apply for a remedy under s. 24(1) of the Charter… What approach should a court take in determining whether there has been an abuse of process in the residual category that, while falling under s. 7 of the Charter, nonetheless results from an accumulation of infringements of other Charter rights? Indeed, what needs to be considered is how to reconcile the relevant frameworks, that is, the s. 7 framework and the frameworks for ss. 8 and 10(b) of the Charter.

Subsequently, the Court described the issues raised by the appeal as being the following (at paragraph 26):

A. Did the appellants all have standing to apply for a remedy under s. 24(1) of the Charter?

B.  Did the Superior Court judge err in finding that there had been an abuse of process in the residual category?

C.  Did the Superior Court judge err in entering a stay of proceedings for all of the appellants?

D. Could the Crown raise, before the Court of Appeal, the Superior Court judge’s failure to consider the particular circumstances of the arrest of each appellant in groups 2, 3 and 4 after consenting to judgment?

The Supreme Court indicated that “this is the first time an appeal to the Court has raised the question of how the law on abuse of process in the residual category applies to a group of accused persons, all of whom apply for a stay of proceedings on the ground that an accumulation of infringements of Charter rights, of which several but not all of them were the victims, causes prejudice to the integrity of the justice system” (at paragraph 30).

HELD: The appeal was dismissed.  The Supreme Court held that though all of the accused had standing, the application judge failed to “determine whether each appellant’s right under s. 10(b) of the Charter had been infringed and that it failed to do so, thereby committing a reviewable error” (at paragraph 5):

For the reasons that follow, I would dismiss the appeal, partly for the reasons given by the Court of Appeal. Unlike that court, I am of the view that all of the appellants have standing to apply for a remedy under s. 24(1) of the Charter even though some of them were not the victims of any of the infringements constituting the alleged abuse of process or of any breach of trial fairness. However, I agree with the Court of Appeal that the Superior Court had to determine whether each appellant’s right under s. 10(b) of the Charter had been infringed and that it failed to do so, thereby committing a reviewable error. In light of the appellants’ arguments, that determination had to be made in order to decide whether the infringements as a whole met the threshold for abuse of process in the residual category. This is therefore a situation in which the frameworks for ss. 8 and 10(b) of the Charter are complementary to the s. 7 framework. Finally, I am of the view that the Superior Court also erred in entering a stay of proceedings for all of the appellants without first considering less drastic remedies that could have fully redressed the prejudice to the integrity of the justice system that it thought it had identified. These errors justify holding new trials, including new hearings on the appellants’ motion for a stay of proceedings and for the exclusion of evidence.

Stays of Proceedings:

The Supreme Court held that “three conditions” must “be met” for a stay of proceedings to be entered (at paragraph 29):

(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).

Did the Appellants All Have Standing to Apply for a Remedy Under Section 24(1) of the Charter?

The Supreme Court held that standing requires that “the accused must allege that the abusive conduct tainted the police investigation or operation targeting them or the court proceedings against them” (at paragraphs 38 and 39):

An accused has standing to apply for a remedy under s. 24(1) where they allege that one of their Charter rights has been infringed. The s. 7 right is one of these rights. It protects accused persons from abuse of process in the residual category. This type of abuse of process occurs where state conduct is unfair or vexatious to such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the justice system, regardless of its impact on the accused’s other constitutional rights or on the fairness of their trial.

However, this does not mean that every accused will have standing to apply for a remedy under s. 24(1) of the Charter on the basis of any abusive state conduct, no matter what the causal connection between that conduct and the proceedings against them. 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. In this case, each of the appellants meets this requirement, since all of them assert that they were directly targeted by the police investigation and operation that resulted in the alleged abusive conduct.

Standing Under Section 24(1) of the Charter Is Accorded to Accused Persons Alleging That Their Own Rights Have Been Infringed:

The Supreme Court held that a person’s standing “will be considered sufficient only if they are alleging an infringement of any of their Charter rights… the focus when it comes to standing is on the allegations made by the person seeking a remedy under s. 24(1) of the Charter. These allegations must set out the essential elements that will have to be shown in order to establish an infringement of at least one of the applicant’s Charter rights. If they do so, the applicant will have standing to apply for a remedy under s. 24(1)” (at paragraphs 44 and 46).

The Court indicated that “on the face of the record, some of the appellants could not reasonably allege that they had been the victims of either of these infringements, or possibly even both. However, this did not prevent any appellant from having standing to apply to a court for a stay of proceedings under s. 24(1) of the Charter and to obtain a judgment from the court on the merits of their application if they had duly alleged all the essential elements that had to be shown in order to establish an infringement of their s. 7 right on the basis of an abuse of process in the residual category” (at paragraph 48).

The Court concluded that that “the existence of directly personal prejudice is not one of these essential elements” for a stay to be entered because “an infringement of s. 7 of the Charter may result solely from the fact that state conduct causes prejudice to the integrity of the justice system, irrespective of whether the conduct had an impact on the other rights of the person alleging it or on the fairness of their trial” (at paragraph 49).

Section 7 of the Charter Protects Accused Persons From State Conduct That Undermines the Integrity of the Justice System, Regardless of Whether There Is Personal Prejudice:

The Supreme Court indicated that “impairment of the accused’s other rights or of the fairness of their trial, “although relevant, is not determinative” (Nixon, at para. 41), because the type of prejudice addressed by the principles of fundamental justice in s. 7 goes well beyond personal prejudice (O’Connor, at para. 64). All that must be found is that there is state conduct with repercussions on a larger scale, that is, conduct that causes prejudice to the integrity of the justice system in the eyes of society (at paragraph 51).

The Proceedings Against the Accused Must Have Been Tainted by the Abusive State Conduct:

The Court held that “the causal connection between, on the one hand, the state conduct that undermines the integrity of the justice system and, on the other, the engagement of the accused’s interests protected by s. 7 of the Charter, that is, life, liberty and security of the person, will be considered sufficient where the criminal proceedings against the accused are ‘tainted’ (in French, entachées) by the abusive conduct” (at paragraph 55).

The Court concluded that “the abusive conduct need not have had an impact on the accused’s other Charter rights or on the fairness of their trial” for a stay to be entered (at paragraph 56):

The proceedings against an accused will be regarded as tainted where abusive conduct occurred in the course of the proceedings or in the course of a police investigation or operation that targeted the accused or otherwise served to gather evidence to prove that the accused was guilty of the charge or charges laid against them. Obviously, the abusive conduct need not have had an impact on the accused’s other Charter rights or on the fairness of their trial in order to meet this requirement. It need only have occurred in the course of the investigation or police operation targeting the accused or the criminal proceedings against them. In the absence of this connection, I have difficulty seeing how the accused’s life, liberty and security of the person are engaged by the abusive conduct.

This case:

The Supreme Court held that “in the abuse of process context, both s. 7 and ss. 8 to 14 of the Charter are intended to protect individuals from conduct that is unfair or vexatious to such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the justice system (O’Connor, at paras. 64 and 73). It follows that the frameworks for analyzing these provisions can coexist. Indeed, it is entirely appropriate to use the framework for abuse of process in the residual category developed for the purposes of s. 7 to analyze any accumulation of infringements of one or more procedural guarantees in order to determine whether the infringements as a whole meet the threshold for establishing abuse of process, that is, prejudice to the integrity of the justice system” (at paragraph 71).

Section 10(b) of the Charter:

The Supreme Court indicated that “[w]hether the delay between the time a detainee indicates a desire to exercise their right and the time the detainee exercises it is reasonable is a factual and highly contextual inquiry (Taylor, at para. 24). Barriers to access or ‘exceptional circumstances’ that justify briefly suspending the exercise of the right cannot be assumed; they must be proved (para. 33; R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 74; R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, at pp. 998 99). The burden is always on the Crown to prove the circumstances, exceptional or not, that make the delay reasonable (Taylor, at para. 24)”.

Conclusion:

The Court concluded that “the Superior Court judge erred in law in finding that the right to retain and instruct counsel without delay of all of the appellants in group 1 had been infringed… as a general rule, the police may not assume in advance that it will be impracticable for them to facilitate access to counsel. On the contrary, they must be mindful of the particular circumstances of the detention and take proactive steps to turn the right to counsel into access to counsel (Taylor, at para. 33). This is the case because the detainee’s ability to exercise their right depends entirely on the police…That being said, the fact that a police officer assumes in advance that it will be reasonable to delay the implementation of the right to counsel, without regard to the circumstances of the detention, will not in itself entail an infringement of this right” (at paragraphs 88, 95 and 96).

The Court indicated that the “central question remains whether the delay in facilitating access to counsel…was reasonable in the circumstances” (at paragraphs 100 to 102):

the fact that the police postpone the exercise of a detainee’s right to retain and instruct counsel without delay until the detainee has been taken to the police station, without first considering the particular circumstances of the arrest, does not in itself entail an infringement of the right guaranteed by s. 10(b) of the Charter. The central question remains whether the delay in facilitating access to counsel (in Taylor, it was a failure to facilitate such access (para. 35)) was reasonable in the circumstances. This is a question of fact that must be decided on the basis of the evidence in the record (paras. 24 and 32‑33).

In this case, as the Court of Appeal properly noted, the Superior Court judge did not, with all due respect, analyze the reasonableness of the delay between the time the appellants in group 1 indicated a desire to exercise their right to counsel and the time they were able to exercise it. His reasons dealing with the right to retain and instruct counsel without delay of the four appellants in group 1 who expressed their intention to exercise it immediately after being informed of it make no mention of the time that three of them had to wait before being able to call their counsel (Sup. Ct. reasons (2018), at paras. 49‑54, 58‑61 and 68).

In addition, the Superior Court judge’s reasons make only a passing reference to certain circumstances that were relevant to assessing the reasonableness of the delay, such as the fact that a search was in progress, the proximity of the police station, the police officers’ safety, the presence of a telephone at the scene and issues relating to the confidentiality of any call made, without ever analyzing how these circumstances affected the reasonableness of the delay. In the case of one of the four appellants in question, the reasons do not even refer to any of these circumstances (para. 68). I will add that nowhere in the reasons is any account taken of the fact that accomplices were arrested at the same time.

The Supreme Court concluded that “the Superior Court judge erred in holding that the right of all of the appellants in group 1 to retain and instruct counsel without delay had been infringed. Because the infringements of this right were, in his view, the most serious ones, his conclusion that the appellants in group 1 were the victims of an abuse of process in the residual category must be set aside” (at paragraph 109).

Did the Superior Court Judge Err in Entering a Stay of Proceedings for All of the Appellants?

The Supreme Court concluded that the trial judge erred in failing to consider whether a lesser remedy was appropriate (at paragraphs 117 and 118):

…it still had to be explained why a remedy short of a stay of proceedings could not redress the prejudice to the integrity of the justice system that the judge thought he had identified (see, e.g., Brind’Amour, at paras. 102‑3).

I would add that this failure to consider lesser remedies is especially significant in a context where several accused persons apply for a remedy under s. 24(1) of the Charter on the basis of the same abuse of process that affected them in different ways. In such circumstances, the court may very well conclude that the remedy that would fully redress the prejudice to the integrity of the justice system caused by the abuse involves individualized orders.