2014 QCCA 33, 2014 QCCA 33

Brind'Amour c. R. 2014 QCCA 33 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-004373-096 , 500-10-004575-104, 500-10-004618-102, 500-10-004619-100, 500-10-004658-108, 500-10-004698-104, 500-10-004834-113, 500-10-004835-110, 500-10-004836-118, 500-10-004837-116, 500-10-004838-114, 500-10-004839-112 (500-73-002684-062), (500-73-002685-069), (500-73-002686-067) (500-73-002687-065), (500-73-002873-079), (500-73-002691-067) DATE : JANUARY 15, 2014 CORAM: THE HONOURABLE FRANÇOIS DOYON, J.A. NICHOLAS KASIRER, J.A. MARIE ST-PIERRE, J.A. No.: 500-10-004373-096 (500-73-002691-067 SEQ.

ACC. 005) FRÉDÉRIK BRIND’AMOUR APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix and No.: 500-10-004575-104 (500-73-002684-062 SEQ. ACC. 002) HER MAJESTY THE QUEEN APPELLANT – Respondent – Prosecutrix v. CHRISTOPHER TUNE RESPONDENT – Applicant – Accused and No.: 500-10-004618-102 (500-73-002686-067 SEQ. ACC. 002) HER MAJESTY THE QUEEN APPELLANT – Respondent – Prosecutrix v. STEEVE MORIN RESPONDENT – Applicant – Accused and No.: 500-10-004619-100 (500-73-002684-062 SEQ. ACC. 001), (500-73-002685-069 SEQ. ACC. 005) (500-73-002686-067 SEQ.

ACC. 005) HER MAJESTY THE QUEEN APPELLANT – Respondent – Prosecutrix v. DANIEL RIVARD

RESPONDENT – Applicant – Accused and No.: 500-10-004658-108 (500-73-002873-079) HER MAJESTY THE QUEEN APPELLANT – Respondent – Prosecutrix v. CHRISTOPHER TUNE RESPONDENT – Applicant – Accused and No.: 500-10-004698-104 (500-73-002686-067 SEQ. 004) HER MAJESTY THE QUEEN APPELLANT – Respondent – Prosecutrix v. DUSTIN RISKE RESPONDENT – Applicant – Accused and No.: 500-10-004834-113 (500-73-002691-067 SEQ. ACC. 011) HER MAJESTY THE QUEEN APPELLANT – Respondent – Prosecutrix v.

FRANÇOIS MATHIEU RESPONDENT – Applicant – Accused and No.: 500-10-004835-110 (500-73-002687-065 SEQ. 003) HER MAJESTY THE QUEEN APPELLANT – Respondent – Prosecutrix v. DOMINIC ROBIN RESPONDENT – Applicant – Accused and No.: 500-10-004836-118 (500-73-002687-065 SEQ. ACC. 001) HER MAJESTY THE QUEEN APPELLANT – Respondent – Prosecutrix v. CLAUDE CÔTÉ RESPONDENT – Applicant – Accused and No.: 500-10-004837-116 (500-73-002685-069 SEQ. ACC. 002) HER MAJESTY THE QUEEN APPELLANT – Respondent – Prosecutrix v.

MARC-ANDRÉ BRIND’AMOUR RESPONDENT – Applicant – Accused and No.: 500-10-004838-114 (500-73-002685-069 SEQ. 003) HER MAJESTY THE QUEEN APPELLANT – Respondent – Prosecutrix v. SIMON-PIERRE DUBÉ-MICHAUD RESPONDENT – Applicant – Accused and No.: 500-10-004839-112 (500-73-002687-065 SEQ. ACC. 002) HER MAJESTY THE QUEEN APPELLANT – Respondent – Prosecutrix v. STÉPHANE D’AMOUR RESPONDENT – Applicant – Accused JUDGMENT [ 1 ] In file number 500-10-004373-096 (first instance file number 500-73-002691-067 SEQ.

ACC. 005), the appellant Frédérik Brind'Amour appeals from a judgment of the Court of Quebec, Criminal and Penal Division, District of Montreal (the Honourable Judge Claude Parent), rendered on March 25, 2009, that convicted him of conspiracy to import cocaine. [ 2 ] In files 500-10-004575-104 and 500-10-004658-108, the appellant appeals from two judgments of the Court of Quebec, Criminal and Penal Division, District of Montreal (the Honourable Judge Hélène Morin), rendered on January 25 and April 20, 2010, respectively, that stayed proceedings against the respondent Christopher Tune. [ 3 ] Finally, in the other files, the appellant appeals from various judgments rendered by the Court of Quebec, Criminal and Penal Division, District of Montreal (the Honourable Judge Jean-Pierre Boyer), rendered on February 23, May 21, and December 17, 2010, that stayed proceedings against the other respondents. [ 4 ] For the reasons of Doyon, J.A., with which Kasirer and St-Pierre, JJ.A. agree: [ 5 ] ALLOWS the appeal of Frédérik Brind'Amour; [ 6 ] ORDERS a stay of the proceedings against him in first instance file number 500-73-002691-067, SEQ ACC. 005. [ 7 ] DISMISSES the other appeals.

FRANÇOIS DOYON, J.A. NICHOLAS KASIRER, J.A. MARIE ST-PIERRE, J.A. Mtre Richard F. Prihoda Avocats Montreal Lawyers For Frédérik Brind'Amour Mtre Annie Piché Public Prosecution Service of Canada For Her Majesty the Queen Mtre Julio Peris Peris & Sutton For Christopher Tune

Mtre Luc Carbonneau Mtre Luc Carbonneau, Attorney (Mtre Clemente Monterosso for Mtre Luc Carbonneau in the afternoon) Clemente Monterosso, Attorney For Daniel Rivard Mtre Guiseppe Battista Shadley Battista For Dustin Riske Mtre Clemente Monterosso for Mtre Stéphanie Carrier (absent) Clemente Monterosso, attorney For François Mathieu Mtre Gaétan Bourassa, Community Legal Centre of Montreal, for Mtre Vincent Montminy (absent) Cavaliere & Assoc. For Dominic Robin Mtre Mélissa Gagnon Mélissa Gagnon, attorney For Claude Côté Mtre Richard F.

Prihoda Avocats Montreal Lawyers For Marc-André Brind'Amour Mtre Gaétan Bourassa Community Legal Centre of Montreal For Simon-Pierre Dubé-Michaud Mtre Clemente Monterosso Clemente Monterosso, attorney For Stéphane D’Amour Date of hearing: November 12, 2013 REASONS OF DOYON, J.A. [ 8 ] In the eyes of the Royal Canadian Mounted Police, the ends justified the means. The ends were the arrest of persons that might have been involved in criminal activities relating to drug trafficking.

As for the means, they consisted, inter alia , in lying to Correctional Service Canada and the National Parole Board for several months. The trial judges found that this conduct constituted abuse that required a stay of proceedings because going forward with the prosecution would undermine the integrity of the justice system and a stay was the only measure that could bring the prejudice to an end. I am in complete agreement with their conclusion.

BACKGROUND [ 9 ] Twelve judgments are at issue in this appeal. [ 10 ] On January 25 and April 20, 2010, Hélène Morin J. ordered a stay of proceedings in the two files involving Christopher Tune on the basis of abuse of process resulting from police misconduct. On February 23, May 21, and December 17, 2010, Jean-Pierre Boyer J. made the same order with respect to the other respondents for similar reasons.

The prosecution has appealed all of these judgments. [ 11 ] Finally, on March 25, 2009, Claude Parent J. convicted Frédérik Brind'Amour, who is the only one of the group who did not apply for a stay of proceedings.

He has also appealed, and the prosecution, to its credit, concedes in all fairness that if its appeals from the orders staying proceedings are dismissed, Frédérik Brind'Amour's appeal should be allowed so that he may also benefit from the same order. [ 12 ] For the following reasons, I am of the view that the prosecution's appeals should be dismissed. [ 13 ] The trial judgments are based on facts that are generally admitted. The same cannot be said, however, about the

interpretation of some of these facts. [ 14 ] On December 31, 2004, John Golden, an officer with the Royal Canadian Mounted Police ("RCMP"), began discussions with a certain Pierre Tremblay about the latter becoming a civilian undercover agent or a secret agent. The two men had known each other for some time.

[ 15 ] Here is how the RCMP authorities define the concept of civilian undercover agent: [ translation ] A civilian undercover agent is an individual, criminal or not, who, in return for certain benefits, is prepared to act as an undercover agent to provide the police with information or assist the police in collecting evidence of the commission of crimes. [ 16 ] Pierre Tremblay had been on parole since May of 2003. He was serving an eighteen-year prison sentence for importing drugs, among other offences.

John Golden knew that he had started trafficking in drugs again; this is in fact what spurred him to make contact, asking him to infiltrate a criminal organization to help apprehend other traffickers.

To motivate him to accept the offer, Golden told Tremblay that he knew very well that he was still offending, which obviously represented a breach of his parole conditions. [ 17 ] After a meeting on December 31, 2004, the RCMP undertook steps with Correctional Service of Canada ("CSC") to have the National Parole Board ("the NPB") modify Tremblay's conditions so that he could help the RCMP. [ 18 ] It should be pointed out that the RCMP operations manual states that its officers must not instruct [ translation ] "secret agents" on parole or on probation to do anything that would contravene a law or incite them to breach their parole conditions.

I will return to this aspect of the case later on. [ 19 ] On July 27, a letter was sent to the Assistant Deputy Commissioner, Correctional Operations, by the officer responsible for RCMP criminal investigations, Superintendent Antoine Couture. The letter described the supervision to which Tremblay would be subject as a civilian undercover agent, and ended as follows: [ translation ] You may therefore rest assured that an individual on parole taking

part in an undercover operation as a civilian agent will be monitored at all times and will be subject to an entire series of rules circumscribing his activities and the gathering of information. Moreover, the contract he signs with the RCMP will clearly inform him of his obligations and the consequences that will necessarily flow from any breach of the conditions imposed on him.

We hope that this information will help guide you in your decision making and that you will agree to modify the conditions on the parolee in question so as to allow him to collaborate with the police officers. [ 20 ] In late July of 2005, the RCMP withdrew Tremblay from his environment (he told the criminal organization that he was on vacation) due to his still significant involvement in drug trafficking and the imminence of a decision by the NPB.

Marc-André Brind'Amour managed his affairs until his return. [ 21 ] On August 8, 2005, an operational plan for collaborators of justice was sent to the NPB [ translation ] "as a supplement to the request for a modification of the special condition".

The RCMP undertook to follow up with CSC and to inform it of [ translation ] "any change in the status of the offender and of any risks to" him or to the public. [ 22 ] On August 12, 2005, the NPB modified Tremblay's parole conditions to allow him to spend time with criminals, among other things. [ 23 ] The appellant admits that throughout their meetings and conversations between January and August of 2005, the RCMP kept CSC and the NPB in the dark about Tremblay's breach of conditions and his criminal activities.

It is therefore established that, when the NPB reached its decision, it did not have the requisite information to make an informed decision because of the RCMP's conduct. [ 24 ] On September 2, 2005, the RCMP and Pierre Tremblay signed a letter of agreement.

According to the RCMP and the appellant, it was only then that Tremblay became a civilian undercover agent, in exchange for remuneration. [ 25 ] The evidence shows no actions by the RCMP derogating from their duties after this date. [ 26 ] The agreement with Tremblay resulted in his participation in three investigations, referred to as [ translation ] "projects".

Morin J. described them as follows: [ translation ] [54] The Cubain and Charte projects concerned events that occurred prior to the initial encounter on December 31, 2004, while the Cabernet investigation, of which Christopher Tune would become one of the targets, was concerned with later events. In fact, Pierre Tremblay did not meet the applicant [Tune] for the first time until March 31, 2006. The Cubain Project [55] The Cubain Project concerned the importation and seizure of 52 kilos of cocaine on December 4, 2004, in Belledune, New Brunswick.

The cargo was attached to the hull of a ship, and Tremblay had to recruit divers to recover it. The police beat him to it. Tremblay was assured that he would not be prosecuted for this importation in exchange for his testimony against the participants in this importation, including Gilbert Kelly and Sarto Berthiaume... [56] On December 31, 2004, and in the following days, Tremblay informed Golden about the opportunities he had to [TRANSLATION] “himself initiate” importations with these people. The Charte Project [57] The Charte Project concerned two murders that occurred in the 1990s.

... [62] Tremblay’s participation as a civilian undercover agent made it possible to obtain the confessions of the criminals involved in the two murders committed in the Quebec City region. It should be noted that Yvon Lessard is dead. The Court asked whether, as instructed by Quebec's Director of Public Prosecutions, Tremblay had undergone a polygraph test on the subject of these murders. This was not the case. Project Cabarnet [63] According to Golden’s testimony, for this project, which took place in Montreal, Tremblay had to devise plans that would jointly involve Gilbert Kelly and Daniel Rivard.

Moreover, it was Daniel Rivard who introduced the applicant Christopher Tune to Tremblay. [64] Between March and September 2006, after having officially become an agent on September 2, 2005, Tremblay met with the applicant a dozen times, and communicated with him by e-mail some one hundred times about importing hundreds of kilos of cocaine from Venezuela.

This importation never took place, but the conspiracy is undeniable, as the applicant acknowledges. [1] [ 27 ] These investigations, along with some others, resulted in their own share of indictments involving the respondents, [2] whom the appellant charged with various drug trafficking offences. [ 28 ] The orders to stay proceedings were made in the following circumstances:

(1) Some were ordered before the convictions; this occurred in the cases of Christopher Tune and Steeve Morin.

(2) The others were ordered after guilty pleas were entered; this was the case in the matters involving Daniel Rivard, Dustin Riske, François Mathieu, Dominic Robin, Claude Côté, Marc-André Brind'Amour, Simon-Pierre Dubé-Michaud, and Stéphane D'Amour. [ 29 ] Moreover, while all of the respondents admit that the evidence was sufficient to justify a guilty verdict, the appellant concedes that it would not have brought any charges against them without Tremblay’s participation.

TRIAL JUDGMENTS Morin J. [ 30 ] In Tune's case, Morin J. recognized at the outset that the war against drugs and organized crime is a social issue, but she also noted the importance for state agents to act in accordance with the rules. [ 31 ] She rejected the argument that this was the first time a convict on parole had been employed as an informant in Canada and that this was the reason the RCMP faced challenges when devising its method for intervention.

She found it [ translation ] "inconceivable that the various justice collaborators, as they have been called, including the prosecution, were not all called upon to study the questions raised by this particular situation before Tremblay was even approached".

She also rejected the argument that Tremblay was merely an informant until he signed the agreement in September of 2005, and that, as a result, the RCMP was not required before this date to inform the authorities about his criminal activities and the breach of his conditions. [ 32 ] In her view, the circumstances in which the RCMP used Tremblay were shocking to the community because, among other things, the RCMP knowingly deceived CSC and the NPB when Tremblay was more than just a police informant.

She explained as follows: [ 145 ] The testimony of Tremblay, the agent in question, reveals that he was entrusted with a mission on December 31, 2004. Moreover, from the very beginning, he was informed of the RCMP’s major orientations with regard to the war against drugs.

For a mere informer, this was a lot of first-hand information. [146] Golden’s concerns about budgetary constraints, revealed in at least two documents, explain in part why Tremblay became [ translation ] “the investigator in the place of the investigators” with the protection of Golden in the three investigation projects. [147] In argument, Mtre Dudemaine writes that, since they were dealing with calculating, hardened criminals, the officers were forced to turn a blind eye, after the fact, to the many importation and trafficking crimes revealed by Tremblay himself. [148] Tremblay’s mission required him to traffic.

How else could he have had access to some of the targets of the investigation? But, at the same time, if he was a high-level criminal, as Golden describes him, why was he trafficking all week long with low-level targets, if not for the money, of which the RCMP never saw a red cent? [149] The Court is of the opinion that it was with full knowledge of the situation that the officers allowed Tremblay to buy and sell cocaine, with no police supervision, for several months prior to September 2, 2005, thereby flouting all of the rules laid down in

section 25.1 of the Criminal Code . [150] It was easier or cheaper to classify him as a mere informer when he was in fact an “agent in the field”, a position requiring the RCMP to obey the law to permit the application of the following principle: It is in the public interest to ensure that public officers may effectively carry out their law enforcement duties in accordance with the rule of law and, to that end, to expressly recognize in law a justification for public officers and other persons acting at their direction to commit acts or omissions that would otherwise constitute offences. [151] The evidence in support of the motion allows us to conclude that Tremblay was not merely an informer who committed crimes

having nothing to do with the ongoing investigation, but rather an agent in the field who trafficked with the subjects of the investigation while he was on conditional release. [152] Golden protected Tremblay, and even if it is true that he told him that if he was caught, they could do nothing to help him, the fact is that such an occurrence was unlikely since he was trafficking with the targets of the Cubain and Cabernet projects. [153] Golden stated that, in his opinion, since the CSC comes under the authority of the same department as the RCMP, there was nothing wrong with keeping the CSC in the dark about Tremblay’s crimes and breach of conditions. [154] It is clear from reading the laws, regulations, and guidelines governing the CSC and the NPB, in which the protection of society is the paramount consideration, that the NPB’s decision to remove the conditions interfering with the use of Tremblay as an agent could not have been made in accordance with the criteria it was obliged to respect. [155] This observation is all the more shocking in that it was by invoking Tremblay’s failure to comply with the conditions of his conditional release that Golden backed him into a corner so that he realized he had no choice but to collaborate with him.

Using the ultimate authority of the Parole Board in this way, the RCMP then deliberately pulled the wool over its eyes to achieve its ends. [156] Under these circumstances, how can we not find that there has been abuse of process and an irreparable breach of the trust the community has a right to have in the various government agencies charged with enforcing the law and protecting its safety? [ 33 ] After finding that there had been abuse of process, the appropriate remedy remained to be determined.

The judge stated her opinion that a stay of proceedings was necessary because the courts must dissociate themselves from such conduct and because the two criteria required to order a stay of proceedings had been met: [ translation ] [164] Since the outcome of the trial could only be the conviction of the applicant, not to stay the proceedings would amount to allowing a [ translation ] “wrong to perpetuate, which, if left alone, will continue to trouble the parties and the community as a whole in the future”.

In addition, there is a risk of recurrence of the abuse. [165] Still in Grant , speaking about section 24(2), McLaughlin C.J. states: Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective.

It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter , would conclude that the admission of the evidence would bring the administration of justice into disrepute. [166] The Court finds that a reasonable person, informed of all relevant circumstances, would conclude that, despite the seriousness of the crime committed, namely, a conspiracy to import drugs, the admission of the evidence would bring the administration of justice into disrepute. [ 34 ] It is worth pointing out that, during the hearing before this Court, the appellant conceded that the conduct of the RCMP was reprehensible and could constitute improper conduct amounting to abuse of process.

In its view, however, the stay of proceedings was an extreme measure that was unwarranted in the circumstances. Boyer J. – judgment of February 23, 2010 [ 35 ] In the judgment in the case concerning Rivard and Morin, Boyer J. acknowledged that officers have to be creative when they plan their investigative methods, especially in cases involving drug trafficking. They must not go too far, however.

The conduct of the police officers [ translation ] "must not shock the conscience of the community or prejudice the regular administration of justice so much that it justifies an intervention by the courts”. [ 36 ] He relied in large part on Morin J.'s analysis of the evidence, emphasizing certain more specific pieces of evidence. [ 37 ] He stated that he was surprised that there had been no discussion among the various actors before Golden approached Tremblay, when according to the RCMP, this had never been done before and they were unsure as to how to proceed.

The conditions in which the police operation was carried out were certain to shock the community. He pointed out that the RCMP concealed facts that were important to CSC agents so that it could obtain the modification of Tremblay's parole conditions by the NPB, adding that [ translation ] "the police officers took on the Board’s role themselves". [ 38 ] Finally, he determined that the abuse that he found had occurred fulfilled the criteria for a stay of proceedings.

Boyer J. – the other judgments [ 39 ] In other judgments rendered on May 21 and December 17, 2010, Boyer J. noted that the evidence had been obtained thanks to the participation of Tremblay, whose collaboration had been obtained in the circumstances described in the judgment of February 23 and that, if not for this collaboration, no charges would have been brought. Consequently, because the situation was identical to that which had justified a stay of proceedings on February 23, he saw no reason to act differently. He therefore ordered a stay of proceedings in R. v. Dustin Riske (May 21), R. v.

François Mathie u, R. v. Dominic Rubin , R. v. Claude Côté , R. v. Marc-André Brind'Amour , R. v. Simon- Pierre Dubé-Michaud and R. v. Stéphane D'Amour (December 17). THE PERSPECTIVES OF THE PARTIES

The appellant [ 40 ] First, the appellant criticizes Morin J. for misinterpreting the evidence and drawing unreasonable inferences, particularly with regard to the status of Tremblay, who could not be characterized as a secret agent, as the judge stated, but merely an informant before the agreement in September of 2005. Before that date, he was not under the control or direction of the police officers. Therefore, contrary to the judge’s assertion, the RCMP could not inform CSC or the NPB of Tremblay's criminal activities or of the breach of his conditions without violating informant privilege and placing Tremblay’s life and safety in jeopardy. The appellant alleges that Morin J.’s

interpretation distorted her analysis and had a determinative effect on her finding that the abuse was serious enough to shock the public conscience. [ 41 ] The judge also failed to take into account all of the evidence, limiting herself instead to a consideration of specific facts and thereby altering reality, particularly in her statement that Tremblay committed crimes and breached condition [ translation ] "with the blessing and encouragement of the officers". [ 42 ] The appellant also alleges that both judges erred by finding that the events fell under a residual category of abuse of process and in their analysis of the issue of the prospective nature of abuse of process, which led them to order an unwarranted stay of proceedings.

They also erred in law by applying an unknown criterion, namely, that the outcome of the trial could only be the conviction of the accused and that therefore [ translation ] "not to stay the proceedings would amount to allowing a wrong to perpetuate, which, if left alone, will continue to trouble the parties and the community as a whole in the future".

Basing their decisions on such a factor was an error because, on the contrary, the abuse, which resulted from misconduct that had stopped, was not likely to continue or reoccur. [ 43 ] It also argues that because Tremblay was not required to testify in the cases of Dustin Riske, Dominic Robin, Claude Côté, and Stéphanie D'Amour, the abuse was less serious and did not directly affect the rights of these respondents, even though the evidence consisted essentially of the wiretap authorized on the basis of Tremblay's version. [ 44 ] Finally, Boyer J. did not comply with the audi alteram partem rule by refusing to allow the prosecution to adduce some relevant evidence at the time of the judgment of December 17, 2010.

The respondents [ 45 ] In their view, the findings of fact of the two judges cannot be questioned because the appellant has not demonstrated any palpable and overriding error. The appellant's claim with respect to Tremblay's status is contradicted by the evidence.

The respondents point out that, between December 31, 2004, and September 2, 2005, several RCMP officers acted as Tremblay's handlers and that therefore the RCMP was clearly exercising control over him. [ 46 ] Similarly, the evidence supports the conclusion that the RCMP allowed Tremblay to breach his parole conditions and even encouraged him to do so, specifically by (1) knowingly allowing him to continue his highly lucrative cocaine trafficking, and (2) letting Marc-André Brind'Amour take over in July of 2005 so that Tremblay would not lose any money while he was on hiatus. [ 47 ] They allege that the RCMP's misconduct in its relationship with the CSC and the NPB constitutes an obstruction of justice because it hijacked the NPB's administrative process to use it to its own ends and obstructed the NPB in its inquiry.

It knew that, if the NPB were informed of Tremblay’s offences, he would probably lose the benefit of parole, which would have deprived the RCMP of a civilian undercover agent. Hence their decision to lie.

According to the respondents, the misconduct was serious and deliberate, and therefore the two judges were entirely justified in concluding that it was one of the clearest of cases justifying a stay of proceedings. [ 48 ] They add that the argument concerning the specific situations of Riske, Robin, Côté and D'Amour was not raised in first instance and the Court should therefore not take it into account. [ 49 ] Finally, with regard to the audi alteram partem rule, the appellant does not show how the evidence that it wished to adduce would have had any impact on the judgment. ANALYSIS

(1) The standard of intervention and the law applicable to stays of proceedings [ 50 ] In such matters, as in many others, case law recognizes that deference is required. The decision to order a stay of proceedings falls within the discretionary power of the trial judge and cannot be disturbed lightly. A court may intervene only if the trial judge has misdirected himself or herself in law or if the decision is so clearly wrong as to amount to an injustice: R. v.

Bellusci, 2012 SCC 44 , [2012] 2 S.C.R. 509 at para. 17 . [ 51 ] Obviously, this does not relieve an appellate court of its duty to analyze all of the circumstances, and it may or should set aside an order to stay proceedings when, for example, the order is based on a palpable and overriding error of fact, or in other words, an error that has a determinative effect on the decision. [ 52 ] As Fish J. stated in Bellusci : 19 Accordingly, the outcome of this appeal depends on whether the trial judge misdirected himself in law, committed a reviewable error of fact or rendered a decision that is “so clearly wrong as to amount to an injustice”.

[53] The Courts recognize the existence of two broad categories of abuse of process. Those that violate the fairness of the trial andthose more rare instances where the integrity of the justice system is jeopardized. In the first category, the right of the accused to a fairtrial is the main issue, while in the second (referred to as the "residual category"), the issue is whether the conduct is so unfair orvexatious that it contravenes fundamental notions of justice, thus undermining the integrity of the justice system: R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411 at paragraph 73.

In the first category, the personal prejudice suffered by the accused – andparticularly the seriousness and scope of such prejudice – is the main element to consider when determining whether a stay ofproceedings is appropriate. In the second, while the personal prejudice suffered by the accused remains relevant, it is not the primaryconsideration. Charron J. makes this point in R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566: 41 Under the residual category of cases, prejudice to the accused’s interests, although relevant, is not determinative.

Of course, in mostcases, the accused will need to demonstrate that he or she was prejudiced by the prosecutorial conduct in some significant way tosuccessfully make out an abuse of process claim. But prejudice under the residual category of cases is better conceptualized as an acttending to undermine society’s expectations of fairness in the administration of justice. This essential balancing character of abuse ofprocess under the residual category of cases was well captured by the words of L’Heureux-Dubé J. in R. v. Conway, (SCC), [1989] 1 S.C.R. 1659.

She stated the following: Under the doctrine of abuse of process, the unfair or oppressive treatment of an appellant disentitles the Crown to carry on with theprosecution of the charge. The prosecution is set aside, not on the merits (see Jewitt, supra, at p. 148), but because it is tainted to such adegree that to allow it to proceed would tarnish the integrity of the court. The doctrine is one of the safeguards designed to ensure “thatthe repression of crime through the conviction of the guilty is done in a way which reflects our fundamental values as a society”(Rothman v.

The Queen, (SCC), [1981] 1 S.C.R. 640, at p. 689, per Lamer J.) It acknowledges that courts must have therespect and support of the community in order that the administration of criminal justice may properly fulfil its function. Consequently,where the affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases, thenthe administration of justice is best served by staying the proceedings. [Emphasis in original.] [54] In Canada v.

Tobiass, (SCC), [1997] 3 S.C.R. 391 at paragraph 96, the Supreme Court states that somesituations are so serious that the mere act of going forward with proceedings would be outrageous: ...

Admittedly, if a past abuse were serious enough, then public confidence in the administration of justice could be so undermined thatthe mere act of carrying forward in the light of it would constitute a new and ongoing abuse sufficient to warrant a stay of proceedings. ... [55] Here, it goes without saying that the situation falls into the residual category. [56] Regardless of whether the abuse falls into the first or the second category, a stay of proceedings is appropriate only if twocriteria are met: (1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct ofthe trial or by its outcome; and (2) no other remedy is reasonably capable of removing that prejudice. [57] Still in Tobiass, the Supreme Court notes the importance of the first criterion, which indicates that the stay of proceedings is aprospective remedy, not a retrospective one: 91 The first criterion is critically important.

It reflects the fact that a stay of proceedings is a prospective remedy. A stay of proceedingsdoes not redress a wrong that has already been done. It aims to prevent the perpetuation of a wrong that, if left alone, will continue totrouble the parties and the community as a whole in the future. See O’Connor, at para. 82. For this reason, the first criterion must besatisfied even in cases involving conduct that falls into the residual category. See O’Connor, at para. 75. The mere fact that the state hastreated an individual shabbily in the past is not enough to warrant a stay of proceedings.

For a stay of proceedings to be appropriate in acase falling into the residual category, it must appear that the state misconduct is likely to continue in the future or that the carryingforward of the prosecution will offend society’s sense of justice. Ordinarily, the latter condition will not be met unless the former is aswell – society will not take umbrage at the carrying forward of a prosecution unless it is likely that some form of misconduct willcontinue. There may be exceptional cases in which the past misconduct is so egregious that the mere fact of going forward in the light ofit will be offensive.

But such cases should be relatively very rare. [58] In other words, even in the residual category, ordinarily, going forward with a prosecution could shock society’s sense of justiceonly if the reprehensible behaviour or abuse is likely to continue.

There may, however, be "relatively very rare" and "exceptional" casesthat do not admit any alternative: merely going forward with the prosecution would be so shocking because of the seriousness of themisconduct that proceedings must be stayed. [59] Moreover, in all circumstances, a stay of proceedings is a draconian remedy and must be reserved for only the most serious andclearest of cases, where no other measure can correct the prejudice: R. v.

Regan, 2002 SCC 12, [2002] 1 S.C.R. 297 at para. 53. [60] Finally, if any uncertainty remains as to the possibility of removing the prejudice, a third criterion may be applied, one thatinvolves a comparative analysis of the interests that would be served by a stay of proceedings and the interest society has in seeing a finaljudgment on the merits.

(2) The status of Pierre Tremblay [61] As we know, according to the appellant, Pierre Tremblay was a mere informant until the agreement of September 2, 2005.According to the trial judges, however, long before that – according to Morin J., as far back as December of 2004 – he was an "agent inthe field", or in other words, a civilian undercover agent. [62] The distinction is important. As Morin J. pointed out, according to the RCMP documentation, the officer who acts as the

handler or controller of the civilian undercover agent must ensure that the latter does not commit any indictable offences or meet with thepersons targeted in the investigation outside of the context of the operation. In short, if Tremblay was an informant working in a criminalenvironment, it is understandable that the RCMP did not want to disclose his criminal activities because they wanted to avoid putting hislife in danger or bringing his collaboration to an end, and especially since he benefited from informant privilege.

If he was a civilianundercover agent, however, he was mandated by the RCMP and was under its control; he therefore had to limit his participation to whatwas required by the investigation, which was generally dictated by scenarios established by the police officers.

The consequences areclear: it was not open to the RCMP to knowingly allow a civilian undercover agent to commit crimes such as drug trafficking for his ownends, outside of the police investigation, as it did in this case. [63] The appellant does not challenge the legal test applied by the judge, which was based on the definition of a civilian undercoveragent ("state agent") as described by the Court of Appeal for Ontario in R. v.

N.Y., 2012 ONCA 745, or the distinction it drew with thesituation of an informant ("confidential informant"): [122] A confidential informant is a voluntary source of information to police or security authorities and is often paid for that information,but does not act at the direction of the state to go to certain places or to do certain things. A state agent does act at the direction of thepolice or security authorities and, too, is often paid. The state agent knows that if charges are laid, his or her identity may be disclosed tothe defence and that he or she may be required to testify.

A major distinction is that a confidential informant is entitled to confidentiality(subject to innocence at stake considerations) and may not be compelled to testify — protections that are vital to the individuals whoprovide such information, as they often put their lives on the line to provide information that may be vital to state security. A state agentis not afforded such a shield. [64] The Court of Appeal for Ontario accepted an analogous definition, in R. v.

G.B. (2000), (ON CA), 146C.C.C. (3d) 465 at para. 10: In general terms, the distinction between an informant and an agent is that an informant merely furnishes information to the police andan agent acts on the direction of the police and goes “into the field” to participate in the illegal transaction in some way. The identity ofan informant is protected by a strong privilege and, accordingly, is not disclosable, subject to the innocence at stake exception.

Theidentity of an agent is disclosable. [65] With regard to the role of the RCMP and Tremblay’s status, Morin J. believed Tremblay’s testimony and rejected OfficerGolden’s.

There is no reason to question this finding of fact. [66] She thus found that Tremblay decided to collaborate because he [translation] "could see himself rotting away in prison until hewas 78 years old" after Officer Golden told him on December 31, 2004, that he knew that he was breaching his parole conditions.According to Tremblay, who had been selling drugs [translation] "all week long", every week, since his parole was granted in May of2003, the RCMP was interested in [translation] "finding people around him with contacts for importing cocaine".

They wanted to knowwhether he would be able to help the police dismantle the importation network. Moreover, the judge was of the opinion that the RCMPhad been well aware of Tremblay's criminal activities since at least April of 2004, given Tremblay's involvement in a cocaine traffickingoperation that had been the target of an RCMP investigation. He had been under surveillance and observed by the surveillance officers inthe company of criminals in April, May, and June of 2005.

Tremblay himself had informed the police officers that these meetings weresoon going to take place. [67] The judge noted that, [translation] "from December 31, 2004, to February 28, 2005, no fewer than four superintendents dealtwith Pierre Tremblay, and, beginning on March 15, 2005, the two detachment coordinators of sources, plainclothes officers, andinformers met him, one after the other”. In addition, on June 13, 2005, Golden asked Tremblay to postpone a meeting he was supposed tohave with a criminal targeted by the investigation [translation] "to give himself time to put in place a surveillance team".

On anotheroccasion, still before September 2, 2005, Tremblay met with the same criminal, at Golden's request. Golden also instructed him not to tellhis parole officer about his meetings with the police officers and especially not about those with the criminals, when his paroleconditions prohibited him from being in contact with individuals involved in crime. Finally, by February of 2005, Tremblay hadcommitted three violations of another condition, that of not venturing farther than 60 km from his residence, by meeting with members ofthe RCMP in Quebec City, at their request.

According to Golden's report dated February 18, 2005, this had allowed the RCMP to save ontransportation costs. [68] Moreover, as we have already seen, by the end of July of 2005, the process seeking to modify Tremblay's parole conditions wasalmost complete. They still could not stop him from carrying on his drug business, however, because doing so might have jeopardizedthe project. On July 29, the RCMP, and more specifically Antoine Couture, the main superintendant, decided to withdraw him fromcirculation. He was given $5,000 to cover his expenses.

The RCMP agreed, however, that he could temporarily transfer his illegalbusiness to Marc-André Brind'Amour for the few weeks that he would be absent. Consequently, Tremblay asked his customers to contactBrind'Amour until he returned. It should be noted that Tremblay was carrying a drug debt of $26,000, which the RCMP had promised toreimburse. Thanks to this agreement with Brind'Amour, the profits would be used to absorb this debt, thereby allowing the RCMP tosave that amount or a part thereof. [69] Finally, still in late July, Golden ordered him to find an excuse to cancel the cocaine delivery to Quebec City.

He allowed himto go there, however, once again in breach of his parole conditions, to recover an amount of money he was owed, which Goldenacknowledges was the proceeds of crime. [70] In light of such observations, there is no way to question the finding of fact that Tremblay was a civilian undercover agent longbefore the agreement was signed on September 2, 2005. Perhaps he did not play that role as early as December 31, 2004, but this is notimportant.

What is important is that, regardless of the words used, the RCMP exercised control over Tremblay's activities for a large partof 2005, when they knew that he was committing indictable offences and breaching conditions outside of the investigation, and theynevertheless allowed him to do so. As we shall now see, however, what is even more important is that the RCMP unacceptably subvertedthe parole process for its own benefit.

(3) The RCMP's misconduct [ 71 ] Stated simply, the trial judgments stated the following with regard to the RCMP’s misconduct: there was abuse of process because the RCMP, with the objective of having Tremblay become a civilian undercover agent, allowed Tremblay, who was on parole, to commit indictable offences while it was exercising control over him and should have stopped or reported him, deliberately deceiving the NPB throughout.

It seems clear to me that, if the NPB had not been deceived, the stays of proceedings would not have been ordered. [ 72 ] The evidence proves it: to achieve their purpose, members of the RCMP, including some high-ranking individuals, used misrepresentation or dissimulation to lie to the NPB, a quasi-judicial body, in an effort to have the latter amend its decision. [ 73 ] To achieve its purpose, the RCMP, through CSC, had to persuade the NPB to modify Tremblay's conditions to allow him to spend time with criminals, among other things.

To do so, it concealed the existence of his criminal activities and the numerous breaches it had witnessed. It also allowed him to continue selling drugs, which brought in significant amounts of money for Tremblay. [ 74 ] It also lied directly to CSC. Specifically, on January 12, 2005, the parole officer asked Golden whether Tremblay had breached his parole conditions.

Golden answered that he had not, even though he knew that Tremblay had been rubbing shoulders with criminals despite being prohibited from doing so, and that on December 31, Tremblay had told him that he was involved in a conspiracy to import cocaine that was supposed to take place in 2005. In his testimony, Golden even said that, according to confidences shared by Tremblay, he was [ translation ] "very involved" in this conspiracy. Golden had this information when he contacted the parole officer to ask him whether the conditions could be modified.

Golden explains that he lied because his superiors were supposed to communicate with CSC later on and that in any event he had to protect his informant. If Tremblay was an informant whose identity needed to be protected, however, why would it be revealed to the parole officer? It is apparent that Tremblay's status was already ambiguous. What is not ambiguous, however, is that the RCMP lied to the parole officer. [ 75 ] Moreover, the day after he met with the parole officer, Golden learned from Tremblay that he had been involved in two other conspiracies in October and December of 2004.

It is difficult to escape the conclusion that the RCMP knew that Tremblay was engaged in criminal activities and, as Morin J. stated, that [ translation ] "with full knowledge of the situation ... the officers allowed Tremblay to buy and sell cocaine, with no police supervision, for several months prior to September 2, 2005, thereby flouting all of the rules laid down in

section 25.1 of the Criminal Code ". [ 76 ] The appellant argues that the RCMP always required Tremblay to refrain from committing any indictable offences during this period and that it even told him that he would not benefit from immunity if he was arrested. On the one hand, the RCMP surely noticed that Tremblay was not following these instructions.

On the other, however, given the relationship between the RCMP and Tremblay, it went without saying that he would not be arrested, and Tremblay had no reason to fear that he would. [ 77 ] The evidence justifies Morin J.’s conclusion whereby the RCMP knew that Tremblay was trafficking in drugs or, at the very least, that it deliberately closed its eyes to this possibility. In addition to the facts outlined above, I note that Golden admits that he had suspicions but preferred not to ask questions because Tremblay was merely an informant.

Tremblay's cocaine supplier, however, was Daniel Rivard, one of the persons under surveillance in the context of Project Cabernet. Golden also admits that, between May of 2003 and May of 2005, Tremblay trafficked in some 150 to 200 kilograms of cocaine, activities that were ongoing in May. Finally, in June and July of 2005, Golden once again received admissions from Tremblay about his participation in cocaine trafficking.

Even though, according to Golden, these admissions were obtained in exchange for a promise that they would not be used against him, the fact remains that it was not open to the RCMP to allow the NPB to believe that his rehabilitation was all but complete.

As incredible as it may seem, however, that is precisely what it did. [ 78 ] Let us see how the NPB summarized the situation in its decision of August 12, 2005, following the various interventions of the RCMP: [ translation ] During your period of day parole, you have implemented several factors of stability, and on May 2, 2003, following a favourable recommendation from Correctional Service Canada, the Board granted you full parole with a special condition prohibiting contact with people involved in crime, with the exception of Nadeau and St-Ours.

Since that date, it appears that you have made adequate progress in the community and that you have remained stable. You are self- employed in the field of information technology and are maintaining a positive personal relationship. You have always collaborated with your supervisors and your performance is positive. We know of no breach on your part and you seem determined to complete your sentence . Gradually, the frequency of the supervision meetings has been reduced to once a month, given your stability and compliance.

The Board has been asked to lift the special condition referred to above to allow you to collaborate with the police authorities as an undercover agent. Correctional Service Canada, through your parole officer and her superiors, supports this request, which has undergone careful analysis that has led to the creation of a structured supervision plan involving both police and correctional authorities .

To rule on this recommendation, the Board has carried out a detailed analysis of your file and, based on this analysis, has concluded that it will approve the recommendation by Correctional Service Canada and the RCMP. [Emphasis added.] [ 79 ] To use a popular expression, the text of this decision "sends chills down the spine".

Quite simply, CSC and the NPB were deceived, and the evidence establishes rather spectacularly that the NPB never would have rendered this decision if it had been aware of Tremblay's true situation. [ 80 ] Clearly, Morin J. was right when she wrote that [ translation ] "one can’t help but think that Tremblay must have had a good

laugh" when he read the decision. [81] The State, through the RCMP, flouted the law and shamelessly lied to the correctional authorities and the NPB, a quasi-judicialadministrative body whose responsibility it is to render informed decisions based on thorough investigations.

The RCMP hampered theNPB in the performance of this important duty, the entire investigation thus becoming a parody of itself and resulting in a decision thatdescribes a reality that never existed. [82] Obviously, not every case of police conduct that is unlawful, illegal, or otherwise unacceptable – whatever the term used tocharacterize it – involves abuse sufficient to justify a stay of proceedings. Each case turns on its own facts, and every case must beapproached individually: R. v. Campbell, (SCC), [1999] 1 S.C.R. 565.

That is what the trial judges did. [83] The appellant refers to the RCMP's lies and failure to disclose during its discussions with CSC and the NPB only to seekabsolution from the courts because it was in a situation the RCMP describes as exceptional, novel, and unique and, at worst, to request agrace period to allow the police to modify and refine its methods. It would like the Court to recognize the precarious role played by thepolice officers, who did not know how to deal with a file involving a parolee, this being the first such case in Canada.

In my view,however, this file involved nothing exceptionally complicated: a body dedicated to compliance with the law lied on several occasions,either directly or by omission, to an independent, quasi-judicial body, for the purpose of achieving its own ends. There is nothing in thissituation that creates any need for clarification by the Courts. Lying to an administrative tribunal is not and has never been acceptable.This is not novel. [84] This is a case where it was perfectly reasonable to find that there was abuse causing prejudice that only a stay of proceedingscould remove. Let us see why.

(4) The stay of proceedings [85] The trial judgments abound with facts filed as evidence, and the appellant has demonstrated no palpable and overriding error.Both judges found that, without a stay of proceedings, the prejudice caused to the respondents would be manifested, perpetuated oraggravated through the conduct of the trial, and that no other remedy was reasonably capable of removing that prejudice. [86] After stating that she must [translation] "find that there has been abuse of process and an irreparable breach of the trust thecommunity has a right to have in the various government agencies charged with enforcing the law and protecting its safety", Morin J.added: [translation] What is the fair and appropriate remedy in the circumstances?

A stay of proceedings should be ordered only in the clearest of cases, afterconcluding that to continue proceedings would further aggravate the prejudice caused to the integrity of the judicial system and when noremedy is reasonably capable of removing that prejudice. [87] Boyer J. relied on the same legal rules: [translation] [62] A stay of proceedings is ordered as a remedy for abuse of process only in the clearest of cases, and a stay of proceedings isappropriate only when two criteria are met: (

a) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial or by itsoutcome; and (

b) no other remedy is reasonably capable of removing that prejudice. The first criterion is critically important. It reflects the fact that a stay of proceedings is a prospective, not a retroactive, remedy. [88] There is no error of law here. [89] In the view of Morin J., the two criteria are met, the Court must [translation] "dissociate itself from such conduct on the part ofthe police" and, given the seriousness of the abuse, no other remedy is reasonably available.

Regarding the first criterion, she wrote: [translation] [164] Since the outcome of the trial could only be the conviction of the applicant, not to stay the proceedings would amount to allowinga [translation] “wrong to perpetuate, which, if left alone, will continue to trouble the parties and the community as a whole in the future”.In addition, there is a risk of recurrence of the abuse. [90] Boyer J. adopted a similar approach. He found that [translation] "the evidence has revealed the existence of persistent abuse thatcan be corrected only through a stay of proceedings".

With regard to the first criterion, he stated the following, adopting as his own theremarks of Morin J.: [translation] [86] ... as the applicants recognize that the prosecution's evidence is sufficiently incriminating to justify convictions, "not to stay theproceedings would amount to allowing a wrong to perpetuate, which, if left alone, will continue to trouble the parties and the communityas a whole in the future. Moreover, there is a risk that the abuse will be repeated”.

[91] With respect, I believe that in these statements the judges emphasized a peripheral issue, one that is far too focused on thepersonal interests of the accused (a conviction), and fail to adequately address the first criterion, thus committing an error of law. Indeed,when the residual category is at issue, while the impact of the abuse on the personal interests of the accused remains relevant, it is notthe main question. As Charron J. notes in Nixon, such prejudice “is better conceptualized as

an act tending to undermine society’sexpectations of fairness in the administration of justice" or, as stated in Tobiass, it is better to consider whether, due to abuse committedin the past, "public confidence in the administration of justice [is] so undermined that the mere act of carrying forward in the light of itwould constitute a new and ongoing abuse sufficient to warrant a stay of proceedings". It can also be considered that, without theintervention of the court, the infringement will continue to disturb the parties and society as a whole.

In short, it is not so much theoutcome of the trial that is important, but rather the effects of the abuse on the integrity of the justice system that are likely to beperpetuated if the trial continues. This error, however, does not change the outcome. [92] In this case, the finding of fact of both judges is determinative: members of the RCMP up to the highest levels hijacked theinvestigative process of the NPB and obtained a decision in favour of Tremblay by deceiving CSC and the NPB for over six months.

Thelaudable objective of pursuing criminals does not give the police carte blanche. [93] This is one of those exceptional situations where the extreme seriousness of the misconduct offends society's sense of justiceand is itself sufficient justification for a stay of proceedings.

Going forward with the prosecution would violate the fundamental rules ofjustice to the point of undermining the integrity of the justice system, and the courts cannot remain associated with such a process. [94] I am of the view that a stay of proceedings is justified in this case, for two reasons. [95] First, as the case law requires, the effects of the abuse on the integrity of the justice system will be perpetuated if theprosecution goes forward. In this respect, in paragraph 59 of its factum, the appellant writes that [translation] "the impugned stateconduct must neither continue nor be repeated".

This is not the test. It is the prejudice caused by the abuse that must be perpetuated, notnecessarily the misconduct. If we were to accept the appellant's argument, there would be no stays of proceedings under the residualcategory because misconduct is generally in the past by the time of the application for a stay and it will not be manifested by the trialsince it has already taken place. [96] Rather, it is the effects of the abuse that matter most. Since in this case, the effects result in the undermining of the integrity ofthe justice system, they will be perpetuated if the stay of proceedings is not ordered.

The stay is not a punishment for the police or a wayto dissuade them from acting in this way in the future. Rather, it is ordered because, without intervention, the prejudice caused to theadministration of justice would persist if the prosecution were to continue.

In reality, continuing the prosecution would constitute newabuse and consequently enable the perpetuation of the prejudice (Tobiass at para. 96). [97] Second, the misconduct is so serious and the situation so exceptional that it is like that described in Tobiass, where the mere actof going forward with the prosecution would be so shocking that the only option available to the courts is a stay of proceedings. It mustbe recalled that it is not solely Golden's personal conduct that is at issue; if it were, the characterization might be different.

Rather, it isthe RCMP itself, with the participation of high-level actors within the organization, that flouted the system, and this resulted in an evenmore shocking misconduct that shakes public confidence in this state agency and, indirectly, in the justice system as a whole. Theconduct is outrageous, and without it there would never have been a prosecution. This is why a stay of proceedings must be ordered.

If itwere not, the integrity of the justice system would be undermined. [98] All of the prosecution's evidence is dependent on Tremblay’s participation, whether as a witness or as a civilian undercoveragent who provided the information needed to obtain a wiretap authorization. It is admitted that, without Tremblay, no charges wouldhave been laid. In these circumstances, to repeat the words of L'Heureux-Dubé in R. v.

Conway, (SCC), [1989] 1 S.C.R.1659 at 1667, "the affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminalcases", such that justice is better served by an order for a stay of proceedings. [99] Again in its written arguments, the appellant maintains that: [translation] If a court hesitates to find that carrying the case forward before the courts could perpetuate an abuse that is sufficiently serious toundermine public confidence in the administration of justice, such court must take into account the general public interest in seeing thematter judged on its merits and, if appropriate, should not order a stay of proceedings. [100] As noted in Tobiass: If we had concluded that having regard to the other factors it was unclear whether the abuse was sufficient to warrant a stay, we wouldhave found that the societal interest in seeing these cases through to their conclusion tips the balance against a stay. ... [101] In the present case, however, there is no doubt, and it is therefore not necessary to move on to this third stage of the analysis. [102] Moreover, all of the prosecution's evidence is based on serious abuse.

Consequently, it is not possible to exclude a specific pieceof evidence – for instance, Tremblay’s testimony – as a remedy. It is the entire police investigation that has been compromised.Therefore, even in the cases of Dustin Riske, Dominic Robin, Claude Côté and Stéphane D'Amour, in which Tremblay was not a witness,a stay of proceedings is the only solution. [103] As for the alternatives proposed by the appellant – such as a reprimand or other disciplinary measures, or even simply adenunciation of the misconduct – they do not adequately fulfill the objectives outlined above.

A stay of proceedings is the only measurethat is appropriate in light of the excessively shocking nature of the misconduct, and a disciplinary process or a denunciation isinsufficient to protect the justice system adequately. To conclude otherwise would mean that, in Canada, justice may be taken into one'sown hands solely because pursuing criminals is a laudable objective. This cannot be so, and to act otherwise in this case would be aninadequate response to an extraordinary situation in which the rights protected under

section 7 of the Charter have been jeopardized.

[ 104 ] In short, the appellant has not persuaded me that the intervention of the Court is justified. On the other hand, however, I hasten to note that, unlike what Morin J. suggested in paragraph 162 of her judgment, there is no evidence that counsel for the prosecution has acted in a blameworthy manner. What is more, the respondents have not argued this before us. That paragraph may also, however, be interpreted to signify that the prosecution – which in the broadest sense of the term includes the police officers – has engaged in misconduct from which the Court must dissociate itself.

In that case, Morin J. was entirely correct. The audi alteram partem rule [ 105 ] This argument is put forth only in the appeals concerning François Mathieu, Dominic Robin, Claude Côté, Marc-André Brind'Amour, Simon-Pierre Dubé-Michaud and Stéphane D'Amour. [ 106 ] It is true that Boyer J. suggested that the appellant could not adduce fresh evidence at the stage of the application for a stay of proceedings. It is not true, however, that, as the appellant argues, the judge completely ignored the rule of relevance when he excluded the additional evidence the appellant wished to adduce.

During discussions, Boyer J. stated the following to counsel for the prosecution: [ translation ] I will not prevent you from adducing evidence, but if it is not relevant, if it is new evidence, then I will prevent you from doing so. What difference does it make that it was disclosed to the authorizing judge? Mtre Dudemaine never spoke to me about the authorizations, since the Judge who authorized it knew that Tremblay was trafficking while he was in negotiations with the RCMP.

It changes nothing in this dispute... . [ 107 ] In his judgment, he added: [ translation ] I cannot see how it is relevant for me to become familiar with the wiretap authorizations. The Crown claims that the authorizing judge was told that Tremblay was committing offences, but he nevertheless issued the authorizations and it was after these authorizations that the wiretapping of some of the accused led us to them.

So whether or not I have them, I know that there has been wiretapping, and it would not influence my decision in one way or another. [ 108 ] Indeed, as the judge stated, the evidence that the appellant was prevented from adducing would have in no way altered the seriousness of the misconduct or the decision. [ 109 ] Essentially, the prosecution wished to demonstrate that (1) it had been disclosed to the authorizing judge that Tremblay was still committing drug trafficking offences, (2) that the conspiracy involving Mathieu had begun before Tremblay's involvement, (3) that Tremblay had had no contact and had not [ translation ] "interacted with the individuals in question", and (4) that Tremblay might not have been put back in detention for the entire remainder of his sentence if the NPB had been kept abreast of his activities.

This evidence is very secondary and would have had no effect whatsoever on the outcome. [ 110 ] Indeed, the fact that the authorizing judge was informed that Tremblay was committing crimes would not have helped the judge understand the most important point, which was whether the RCMP knew and deliberately lied about it to CSC and the NPB for the reasons we have already outlined. [ 111 ] The fact that the conspiracy involving Mathieu had already been committed by the time Tremblay became involved in no way diminishes the fact that without Tremblay, there would have been no wiretap and no evidence against Mathieu.

The same is true with respect to the lack of contact with the other individuals accused. [ 112 ] Finally, the fact that the respondents' argument about the consequences of a full disclosure of Tremblay's activities to the NPB – that is, that he would have been sent back to detention for a very long time – is not based on certainty also changes nothing with regard to the RCMP's lies and its decision to take matters into its own hands without informing the NPB.

That is what is serious, and this seriousness would not be lessened if it had been known that Tremblay might have been sent back to detention for only a few months, as the appellant wished to demonstrate. [ 113 ] In conclusion, the evidence that the appellant wished to present would in no way have changed the seriousness of the misconduct and would not have led to a different outcome; therefore, if there was an error on the part of the judge, it is of no importance and in no way justifies the intervention of the Court.

CONCLUSION [ 114 ] For these reasons, I would dismiss the appeals of the prosecution, allow the appeal of Frédérik Brind'Amour, and order a stay of the proceedings against him. FRANÇOIS DOYON, J.A.