2010 QCCA 2118, 2010 QCCA 2118

R. c. Bellusci 2010 QCCA 2118 COURT OF APPEAL CANADA PROVINCE OF QUEBEC MONTREAL REGISTRY No.: 500-10-004296-099 (500-01-009207-074) DATE: NOVEMBER 18, 2010 CORAM: THE HONOURABLE YVES-MARIE MORISSETTE, J.A. LORNE GIROUX, J.A. GUY GAGNON, J.A. HER MAJESTY THE QUEEN APPELLANT - Prosecutrix v. RICCARDO BELLUSCI RESPONDENT - Accused JUDGMENT [ 1 ] THE COURT — On the appeal from a judgment of the Court of Quebec (the Honourable Louis A. Legault) rendered on December 11, 2008, which acquitted the respondent of the offences of assault (paragraph (

a) of subsection 270(1) Cr. C. and paragraph (

a) of subsection 270(2) Cr. C. ) and assault causing bodily harm (paragraph (

b) of

section 267 Cr. C. ), and ordered a stay of proceedings for the charge of using violence against a justice system participant (paragraph (

b) of subsection 423.1(1) Cr. C. , paragraph (

a) of subsection 423.1(2) Cr.C. , and subsection 423.1(3) Cr. C. ). The facts [ 2 ] On May 15, 2007, the respondent, after appearing at the Montreal court house, was transported in a police van back to the Leclerc Institution with a scheduled stop at the Rivière-des-Prairies detention centre to drop off other detainees. Michel Asselin, a correctional officer, was responsible for driving the van.

Officer Asselin states that the respondent was agitated during the trip and was shouting insults because he was dissatisfied with the route taken by the van driver. [ 3 ] During the stop at the Rivière-des-Prairies detention centre, the respondent, according to officer Asselin, sought permission to go to the bathroom, and permission was granted. As he opened the cell of the police van, the officer alleges that the respondent violently kicked the door towards him, cutting him in the forehead. The officer pushed the respondent back into his cell and closed the van door. [ 4 ] The respondent’s version is different.

He says that when the police van arrived at the Rivière-des-Prairies detention centre, the other detainees seated in the van cell could hear the acrimonious exchanges between the respondent and officer Asselin. The officer identified the respondent aloud as being a detainee in need of protection because he was a rapist. Realizing that such a statement would jeopardize his safety in prison, the respondent reacted by threatening to rape officer Asselin’s wife and children. The detainees who had reached their final destination were escorted out of the van.

Then, officer Asselin, on the pretext that the respondent sought his permission to go to the bathroom, which the respondent expressly denies, opened the van door and roughed him up. [1] Procedural context [ 5 ] At trial, the respondent invoked

section 7 and subsection 24(1) of the Canadian Charter of Rights and Freedoms [2] (hereinafter the Charter ) and requested a stay of proceedings on the ground that that while being transported on May 15, 2007, he was assaulted by officer Asselin.

While acknowledging that this violation had no bearing on the fairness of his trial, the respondent urged the Court to reject the officer’s conduct, as the reprehensible acts committed by the officer were so serious as to offend the conscience of the community. [ 6 ] The respondent also argues that following these events, the penal authorities prevented him from effectively communicating with the police. However, this last grievance is rejected by the trial judge and this conclusion is not at issue in this appeal. [ 7 ] The trial and the hearing on the motion for a stay of proceedings were held simultaneously.

Faced with contradictory

evidence, the trial judge said he believed that the Crown had not discharged its burden of proving beyond a reasonable doubt that the respondent was guilty of assault (270(1)(

a) and 270(2)(

a) Cr. C. ) and assault causing bodily harm (267(

b) Cr. C. ) on the person of officer Asselin. The respondent was acquitted of both offences. [ 8 ] The judge addressed the offence of using violence against a justice system participant (423.1(1)( b ), 423(2)(

a) and 423.1(3) Cr. C. ). He concluded that the evidence showed beyond a reasonable doubt that the respondent uttered threats to officer Asselin and that, in so doing, he intended to intimidate his victim, instil fear in him and, consequently, be taken seriously. [ 9 ] The judge then addressed the motion for a stay of proceedings under subsection 24(1) of the Charter . He deemed that there was a preponderance of evidence that the respondent was roughed up by officer Asselin.

He wrote: [ translation ] [54] The defence meets the first requirement of satisfying the Court on a balance of probabilities that he could have been roughed up by the detention officer under very strong provocation from Mr. Bellusci, who used abusive language and threatened to rape his wife and children.

It is also probable that the accused opened the cell door of the police van into the person of the detention officer before the probation officer intervened in the accused’s open cell or very close by. … [57] It is by no means acceptable that a detention officer is likely to have taken the law into his own hands and mistreated such an abusive and violent detainee when the facts do not support a self-defence defence. The Court comes only to a probable conclusion in this regard . . . . [3] [ 10 ] In the case at bar, the judge concluded that the respondent’s fundamental rights had been violated.

The remedy must be proportional to the seriousness of the violation. In his opinion, a stay of proceedings was the only appropriate remedy. He wrote: [ translation ] [75] The officer’s conduct singularly and greatly exceeds mere control of the accused.

His actions were designed to correct, repress and punish the accused, whose serious threats likely exacerbated the officer’s emotions and resulted in his loss of control, which does not, however, seem to be characteristic of the witness here in court. … [81] It would be to ignore the very important message that must be sent prospectively that such conduct is prejudicial to the justice system.

Individuals brought to the court house for criminal proceedings and returned to their houses of detention are entitled to the same respect as other citizens who are heard by the courts. [82] The prospective effect of such conduct, which will continue to trouble the parties and the community as a whole in the future (Tobiass at para. 91 ) and which undermines the integrity of the judicial process (O'Connor at para. 73 ) should be considered.

While it is true that “the mere fact that the state has treated an individual shabbily in the past is not enough to warrant a stay of proceedings” (Tobiass, at para. 91 ), the allegations here warrant attention and an awareness that the courts must emphasize as strongly as possible the clear unacceptability of such a blatant lack of respect and the need to sanction such behaviour for the future, in the best interest of the administration of justice and to maintain the perception of a system that does not tolerate unacceptable conduct. … [88] Nevertheless, this is a clear and exceptional case that warrants the Court’s action to stay these proceedings on the ground that they are abusive. [4] [Cited verbatim.] Grounds of appeal [ 11 ] The appellant appeals the respondent’s acquittal of the offence of assault as well as the stay of proceedings ordered with regard to the offence of violence against a justice system participant. [ 12 ] The grounds of appeal are summarized as follows: 1.

Did the trial judge err in not finding the accused guilty of assault? 2. Did the trial judge err in ordering a stay of proceedings for the offence of violence against a justice system participant? First ground of appeal [ 13 ] The appellant argues that although it is not reflected in the conclusions of the judgment, the judge implicitly acknowledged that the elements of the offence of assault were duly proven. In support of its position, the Crown cites the following passage from the trial judgment: [ translation ]

[24] … it is more likely that what triggered this experienced officer was the threats against the detention officer which are beyond doubt, as well as the violent opening of the cell door of the police van into the detention officer. [5] [ 14 ] This passage alone cannot have the significance ascribed to it by the appellant. The remarks of the trial judge must be assessed in light of his findings as a whole.

A close reading of the judgment reveals that the judge examined the question of the opening of the police van door many times to see if it met the balance of probabilities test. [6] This clearly indicates that he did not conclude beyond a reasonable doubt that the respondent used intentional force when opening the van door into officer Asselin. A showing to this effect was essential for the appellant to successfully argue that the offence of assault was duly proven. As the Crown did not make such proof, the first ground of appeal cannot be allowed.

Second ground of appeal [ 15 ] The appellant argues that the judge erred in ordering a stay of proceedings for the offence of violence against a justice system participant. With respect for the opinion of the trial judge, this ground of appeal should be allowed. [ 16 ] The judge concluded that, on a balance of probabilities, officer Asselin roughed up the respondent. The appellant did not raise any grounds of appeal against that conclusion.

However, the appellant argues that the judge erred in finding that real and prospective prejudice had been done to the justice system and that he misused his judicial discretion in ordering a stay of proceedings when other remedies should have been considered. [ 17 ] In R. v. O'Connor , [7] L'Heureux-Dubé J. identified a residual category of abuse of process which, without affecting the fairness of the trial, addresses diverse circumstances of sufficient seriousness to undermine the integrity of the judicial process. Officer Asselin’s conduct falls into this residual category. [ 18 ] In R. v.

Regan , LeBel J., referring to the doctrine of abuse of process, wrote about the appropriate remedies for this violation: [53] A stay of proceedings is only one remedy to an abuse of process, but the most drastic one: “that ultimate remedy”, as this Court in Tobiass , supra , at para. 86 , called it. It is ultimate in the sense that it is final. Charges that are stayed may never be prosecuted; an alleged victim will never get his or her day in court; society will never have the matter resolved by a trier of fact.

For these reasons, a stay is reserved for only those cases of abuse where a very high threshold is met: “the threshold for obtaining a stay of proceedings remains, under the Charter as under the common law doctrine of abuse of process, the ‘clearest of cases’” ( O’Connor , supra , at para. 68). [54] Regardless of whether the abuse causes prejudice to the accused, because of an unfair trial, or to the integrity of the justice system, a stay of proceedings will only be appropriate when two criteria are met:

(1) The prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and

(2) No other remedy is reasonably capable of removing that prejudice. [ O’Connor , at para. 75] The Court’s judgment in Tobiass , at para. 91 , emphasized that the first criterion is critically important. It reflects the fact that a stay of proceedings is a prospective rather than a retroactive remedy. A stay of proceedings does not merely redress a past wrong.

It aims to prevent the perpetuation of a wrong that, if left alone, will continue to trouble the parties and the community as a whole, in the future. [8] [ 19 ] When faced with abusive conduct by an officer of the state which, without affecting the fairness of the trial, nevertheless affects the integrity of the justice system (residual category), a judge will order a stay of proceedings only in exceptional cases. LeBel J. notes that: [55] As discussed above, most cases of abuse of process will cause prejudice by rendering the trial unfair.

Under s. 7 of the Charter , however, a small residual category of abusive action exists which does not affect trial fairness, but still undermines the fundamental justice of the system ( O’Connor , at para. 73). Yet even in these cases, the important prospective nature of the stay as a remedy must still be satisfied: “[t]he mere fact that the state has treated an individual shabbily in the past is not enough to warrant a stay of proceedings” ( Tobiass , at para. 91 ).

When dealing with an abuse which falls into the residual category, generally speaking, a stay of proceedings is only appropriate when the abuse is likely to continue or be carried forward. Only in “exceptional”, “relatively very rare” cases will the past misconduct be “so egregious that the mere fact of going forward in the light of it will be offensive” ( Tobiass , at para. 91 ) . [9] [Emphasis added.] [ 20 ] It should be noted from the above that the stay of proceedings remedy is a drastic measure, to be considered as a last resort.

In case of uncertainty as to whether the abuse warrants a stay of proceedings, the court must, before ruling on this issue, look into the societal interest in rendering a decision on the merits.

In this regard, the court must find that “an egregious act of misconduct could [never] be overtaken by some passing public concern [although] … a compelling societal interest in having a full hearing could tip the scales in favour of proceeding”. [10] This radical measure is generally justified only when the circumstances of the case do not support a conclusion that without a stay of proceedings, the situation complained of would likely continue or recur. [ 21 ] To paraphrase Beauregard J.A. in R. v.

Serré , [11] there is in this case a non sequitur between the acts Officer Asselin allegedly committed and the stay of proceedings ordered by the trial judge. [ 22 ] First, in light of the evidence, there is nothing to show that the prejudice caused by the abuse is likely to continue or will be aggravated if the respondent is found guilty of the offence he committed and if he receives a fair sentence proportionate to his degree of responsibility (section 718.1 Cr. C. ).

[ 23 ] While officer Asselin’s conduct is admittedly highly reprehensible, a public well informed of the circumstances of the matter would not be upset to learn that criminal proceedings are continuing against the respondent, as this same public should normally be aware that there are remedies other than one where the justice system waives punishment for the perpetrator of a criminal offence. The trial judge himself referred to findings that greatly mitigate the need for the Court to resort to a stay of proceedings.

On this subject, he wrote: [ translation ] [85] However, in the present context, beyond the disorderly and unacceptable actions of the accused [respondent] and his treatment of a detention officer, it is reasonable to conclude that the accused’s threats and violence exacerbated the otherwise generally calm behaviour of the victim [the officer].

Although both protagonists were misguided by anger, the court does not believe that the victim would have reacted in such a way without the excessive remarks and violent, anti-social, and intimidating behaviour of the alleged victim. [12] [Cited verbatim.] [ 24 ] The judge in this case should have given special consideration to less extreme remedies than a stay of proceedings. He could have considered a lesser sentence to reflect the prejudice suffered by the respondent [13] or he could have kept in mind the ethics process to which Officer Asselin would be subject in the event of a disciplinary complaint.

In Serré , Beauregard J.A. deems that an action for damages against the wrongdoer is a [ translation ] “preferred remedy.” [14] Lastly, the possibility that Officer Asselin may one day answer for his actions before a criminal court cannot be dismissed. [ 25 ] In short, we are of the opinion that the specific circumstances of this case do not warrant the remedy ordered by the trial judge.

FOR THESE REASONS: ALLOWS the appeal in part; SETS ASIDE the stay of proceedings order for the offence of using violence against a justice system participant; ReMITS the matter to the trial court so that the trial may continue on this offence. YVES-MARIE MORISSETTE, J.A. LORNE GIROUX, J.A. GUY GAGNON, J.A. Mtre Carole Lebeuf Criminal and Penal Prosecuting Attorney For the appellant Mtre Francis Pilotte LORD, POISSANT & ST-LAURENT For the respondent Hearing date: November 3, 2010