R. v. Z (MJ), 2022 MBCA 61, JULY 5, 2022.

FACTS: The accused was convicted of sexual offences against three of his husband’s nephews and sentenced to ten years of imprisonment.  At his trial, he argued that a stay of proceedings was appropriate because of the abusive conduct of the police while interviewing him.

The police officer that interviewed the accused (Det. Sgt. Hall) made a number of inappropriate remarks, including ones which denigrated the accused and his husband based upon their sexual orientation.

The trail judge concluded that an abuse of process had not been established. The accused appeal from conviction.  

HELD: The appeal was dismissed.  The Manitoba Court of Appeal held that the trial judge erred in not finding that the conduct of the police constituted an abuse of process resulting in a breach section 7 of the Charter.  However, the Court of Appeal concluded that this was not an appropriate case for a stay of proceedings to be entered.

Section 7 of the Charter and Abuse of Process:

The Court of Appeal held that “[d]espite apparent conflation in some authorities of the test for a section 7 breach based on abuse of process in the residual category and the first step of the Babos test, I am of the view that the two are different” (at paragraph 42).

The Court of Appeal explained the differences between the tests for abuse of process and a stay of proceedings in the following manner (at paragraphs 57 and 58):

Logically, a distinction between the tests for abuse of process and a stay of proceedings makes sense.  One should not begin to inquire about whether a Charter remedy should be granted until it has been established that a Charter right has been breached.  The Court’s remedial jurisdiction under section 24(1) is only engaged once a person’s Charter rights have been infringed.  It is also important to separate these two inquiries because the standard of proof for a section 7 violation is the balance of probabilities (see O’Connor at para 68), whereas a stay of proceedings is only available in the clearest of cases.

To summarize, the test for abuse of process in the residual category, as articulated in O’Connor, requires that a prosecution be conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process.  The first step of the Babos test goes further to address prospective considerations, in that there must be an abuse that causes prejudice to the integrity of the justice system which “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” (Babos at para 32).

This Case:

The Court of Appeal concluded that “the approach taken here exceeded permissible boundaries.  Applying the correct legal test to the interview, I would find that it was conducted in such a manner as to be an abuse of process constituting a section 7 breach… They were threatening, abusive and wholly unacceptable.  Taken in its entirety, the interview contravened fundamental notions of justice and thus undermined the integrity of the judicial process⸺and, as such, infringed the accused`s section 7 rights” (at paragraphs  64 and 65).

A Stay of Proceedings:

The Court of Appeal concluded that because of the seriousness of the charges, a stay of proceedings was not an appropriate remedy (at paragraphs 82 and 86):

The seriousness of the charges and society’s interests in seeing justice done are the factors that weigh most heavily in the balance in this case.  When the state misconduct is weighed against society’s interest in entering the convictions, this is not, in my view, one of the “clearest of cases” (O’Connor at para 68) where the exceptional remedy of a stay of proceedings is warranted.

…

In summary, Det. Sgt. Hall’s conduct was a serious departure from the expected standard and undermined the integrity of the justice system, constituting a section 7 breach.  While the exceptional remedy of a stay of proceedings is not warranted, this strong rebuke dissociates the justice system from the officer’s actions and, importantly, makes clear that the police cannot conduct an interview in the manner that was undertaken here.