Daniel Brunelle, Siobol Chounlamountry, Simon Girard, Frédéric Thompson, Jonathan Verret-Casaubon, Jérémie Béliveau- Laliberté, Bernard Mailhot, Alexandre Bouchard, Yves Fernand Buonora, Denis Bilodeau, Carl Chevarie, Terrence Willard, Keven Faucher, Guillaume Fleurent, Éric Guerrier, Danny Guilbeault, Tammy Lamontagne, Olivier Lamothe, André Lauzier, Ambrose Mahoney, Yannick Manseau-Dufresne, Maxime Ménard, Louis-Philippe Noël, Éric Normandin, Robin Roy, Gail Denise Caron, Jérôme Fleury, Henry , 2024 SCC 3

SUPREME COURT OF CANADA Citation: R. v.

Brunelle, 2024 SCC 3 Appeal Heard: February 8, 2023 Judgment Rendered: January 26, 2024 Docket: 39917 Between: Daniel Brunelle, Siobol Chounlamountry, Simon Girard, Frédéric Thompson, Jonathan Verret-Casaubon, Jérémie Béliveau- Laliberté, Bernard Mailhot, Alexandre Bouchard, Yves Fernand Buonora, Denis Bilodeau, Carl Chevarie, Terrence Willard, Keven Faucher, Guillaume Fleurent, Éric Guerrier, Danny Guilbeault, Tammy Lamontagne, Olivier Lamothe, André Lauzier, Ambrose Mahoney, Yannick Manseau-Dufresne, Maxime Ménard, Louis-Philippe Noël, Éric Normandin, Robin Roy, Gail Denise Caron, Jérôme Fleury, Henry Bergeron, Alexandre Livernois-Grenier, Laurent Michel and Shanny Plante Appellants and His Majesty The King Respondent - and - Director of Public Prosecutions, Attorney General of Ontario, Attorney General of Quebec, Attorney General of British Columbia, Attorney General of Alberta, Criminal Lawyers’ Association (Ontario), Association québécoise des avocats et avocates de la défense and Association des avocats de la défense de Montréal-Laval-Longueuil Interveners Official English Translation: Reasons of O’Bonsawin J.

Coram: Wagner C.J. and Karakatsanis, Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ. Reasons for Judgment: (paras. 1 to 124) O’Bonsawin J. (Wagner C.J. and Karakatsanis, Martin, Kasirer and Jamal JJ. concurring) Concurring Reasons: (paras. 125 to 130) Rowe J.

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports .

Daniel Brunelle, Siobol Chounlamountry, Simon Girard, Frédéric Thompson, Jonathan Verret-Casaubon, Jérémie Béliveau-Laliberté, Bernard Mailhot, Alexandre Bouchard, Yves Fernand Buonora, Denis Bilodeau, Carl Chevarie, Terrence Willard, Keven Faucher, Guillaume Fleurent, Éric Guerrier, Danny Guilbeault, Tammy Lamontagne, Olivier Lamothe, André Lauzier, Ambrose Mahoney, Yannick Manseau-Dufresne, Maxime Ménard, Louis-Philippe Noël, Éric Normandin, Robin Roy, Gail Denise Caron, Jérôme Fleury, Henry Bergeron, Alexandre Livernois-Grenier, Laurent Michel and Shanny Plante Appellants v.

His Majesty The King Respondent and Director of Public Prosecutions, Attorney General of Ontario, Attorney General of Quebec, Attorney General of British Columbia, Attorney General of Alberta, Criminal Lawyers’ Association (Ontario), Association québécoise des avocats et avocates de la défense and Association des avocats de la défense de Montréal-Laval-Longueuil Interveners Indexed as: R. v. Brunelle 2024 SCC 3 File No.: 39917. 2023: February 8; 2024: January 26.

Present: Wagner C.J. and Karakatsanis, Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ. on appeal from the court of appeal for quebec Constitutional law — Charter of Rights — Remedy — Stay of proceedings — Abuse of process — Residual category — Standing — Some 30 persons arrested during large-scale police operation — Accused persons filing motion for stay of proceedings on basis that police investigation and operation were vitiated by abuse of process in residual category resulting from accumulation of infringements of their constitutional rights, even though several of them were not victims of any of these infringements — First instance judge granting stay of proceedings but Court of Appeal setting it aside — Whether all accused had standing to seek stay of proceedings — Whether first instance judge erred in finding abuse of process in residual category and in entering stay of proceedings for all accused — Analytical framework that applies where allegation of abuse of process in residual category is based on infringement of other constitutional rights — Canadian Charter of Rights and Freedoms, ss. 7 , 24(1) .

During a large-scale police operation arising out of an investigation into allegations of organized narcotics trafficking, 31

persons were arrested. They were divided into four different groups for separate trials. The accused in group 1, who were to be tried first, filed a motion for a stay of proceedings under s. 24(1) of the Charter on the basis that the police investigation and operation that led to the court proceedings against them were vitiated by an abuse of process. Specifically, they alleged that an accumulation of infringements of their constitutional rights under ss. 8 and 10(

b) of the Charter met the threshold for establishing an abuse of process in the residual category for all of them, even though several of them were not the victims of any of these infringements. The accused in groups 2, 3 and 4 filed motions similar to the one filed by group 1. The first instance judge entered a stay of proceedings for all of the accused in group 1. He held that the police practice of postponing the exercise by the accused of the right to retain and instruct counsel without delay until they were taken to the police station infringed the right of all of the accused in that group under s. 10(

b) of the Charter . Relying on the cumulative effect of these infringements, which he considered to be the most serious ones, and other infringements and violations of the prescribed procedures, the judge held that there had been an abuse of process in the residual category. Groups 2, 3 and 4 and the Crown agreed that the decision rendered with respect to group 1 was applicable to those groups, and a stay of proceedings was also entered for them.

The Court of Appeal allowed the Crown’s appeals, set aside the two judgments and ordered that a new trial be held, including a new hearing on the motion, on the ground that some of the accused did not have standing to obtain a stay of proceedings and that the first instance judge had failed to determine whether each accused’s s. 10(

b) right had been infringed before finding an abuse of process under s. 7. The accused appeal to the Court. Held : The appeal should be dismissed. Per Wagner C.J. and Karakatsanis, Martin, Kasirer, Jamal and O’Bonsawin JJ.: It is appropriate to hold a new trial for group 1 and for groups 2, 3 and 4, including new hearings on the motions for a stay of proceedings. All of the accused had standing to apply for a stay of proceedings 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, the first instance judge erred in failing to determine whether each accused’s right under s. 10(

b) of the Charter had been infringed, a determination that had to be made in order to decide whether the allegation of abuse of process in the residual category was well founded. The first instance judge also erred in entering a stay of proceedings for all of the accused without first considering whether there were less drastic remedies that could have fully redressed the prejudice to the integrity of the justice system that he thought he had identified.

T wo types of state conduct meet the threshold for establishing abuse of process: conduct that compromises trial fairness (“main category”) and conduct that, without necessarily threatening the fairness of the accused’s trial, nevertheless undermines the integrity of the justice system (“residual category”). Abuse of process in the main category engages the Charter provisions aimed at protecting trial fairness for accused persons, namely ss. 8 to 14 of the Charter , as well as the principles of fundamental justice set out in s. 7 .

Abuse of process in the residual category, on the other hand, engages only the principles of fundamental justice in s. 7 of the Charter , which protect accused persons from any state 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, regardless of the impact of the conduct on the accused’s other constitutional rights or on the fairness of their trial.

When abuse of process is found in either category and a Charter guarantee has been infringed, s. 24(1) of the Charter gives a court of competent jurisdiction the power to grant such remedy as it considers appropriate and just in the circumstances. A stay of proceedings will be ordered only where the situation meets the high threshold of being one of the clearest of cases.

This requires three conditions to be met: (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; (2) there must be no alternative remedy capable of redressing the prejudice; (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 against the interest that society has in having a final decision on the merits.

An accused has standing to apply for a remedy under s. 24(1) , including a stay of proceedings, where the accused’s allegations set out the essential elements that will have to be shown in order to establish that one of their Charter rights has been infringed. The existence of directly personal prejudice is not one of the essential elements that must be shown to establish an infringement of the s. 7 right on the basis of an abuse of process in the residual category.

Impairment of the accused’s other rights or of the fairness of their trial, although relevant, is not determinative, because the type of prejudice addressed by the principles of fundamental justice in s. 7 goes well beyond personal prejudice; 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.

However, for a court to find that an accused’s s. 7 right has been infringed as a result of an abuse of process in the residual category, there must be a sufficient causal connection between the abusive conduct and the proceedings against the accused. This connection will be considered sufficient where the criminal proceedings against the accused are tainted by the abusive conduct, which will be the case where abusive conduct occurred in the course of the investigation or police operation targeting the accused or the criminal proceedings against them.

This requirement is consistent with the purpose of the doctrine of abuse of process in the residual category, which is to enable courts to protect the integrity of the justice system by dissociating themselves from state conduct that constitutes an abuse of the judicial process.

It is also consistent with the applicable framework for granting a stay of proceedings under s. 24(1) , whose three cumulative conditions allow for the screening of applications for stays of proceedings to ensure that this remedy is available only in the clearest of cases, which excludes cases in which the proceedings against the accused are not already tainted by abusive conduct .

When an infringement of s. 7 of the Charter is alleged together with an infringement of one or more procedural guarantees, the order of priority that a court should follow will depend on the factual record, on the nature of the Charter rights at play and on how they intersect. In the abuse of process context, both s. 7 and the specific procedural guarantees in ss. 8 to 14 of the Charter are intended to protect individuals from conduct that is vexatious to such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the justice system .

Section 7 plays a role complementary to that of ss. 8 to 14 by providing residual protection against abuse of process that goes beyond the protection offered by the specific guarantees in ss. 8 to 14 . It is therefore not uncommon for s. 7 of the Charter to be invoked at the same time as one or more other procedural guarantees. Indeed, abusive state conduct may take all sorts of forms, and abuse of process in the residual category can be based on an accumulation of incidents or state misconduct. Furthermore, there is no reason why such incidents or misconduct cannot take the form of infringements of a procedural Charter

guarantee and, consequently, why the alleged abuse of process cannot result from an accumulation of infringements of one or moreguarantees. It follows that the frameworks for analyzing s. 7 and ss. 8 to 14 can coexist, and it is entirely appropriate to use theframework developed for the purposes of s. 7 to analyze any accumulation of infringements of one or more procedural guarantees inorder to determine whether the infringements as a whole meet the threshold for establishing abuse of process, that is, prejudice to theintegrity of the justice system.

Of course, the framework applicable to each of these guarantees will remain relevant in determiningwhether the infringements making up the accumulation of infringements actually occurred. In fact, this determination will logically haveto be made before the court decides whether there has been an abuse of process in the residual category. In this case, each of the accused has standing to apply for a remedy under s. 24(1) of the Charter, since all of them assertthat they were directly targeted by the police investigation and operation that resulted in the alleged abusive conduct.

The abuse ofprocess alleged by the accused results from an accumulation of infringements of rights guaranteed by ss. 8 and 10(

b) of the Charter thatreflects a situation of blatant disregard for their rights by the police. In these circumstances, the framework developed for the purposes ofs. 7 of the Charter for analyzing abuse of process in the residual category should be adopted to determine whether the allegedinfringements as a whole meet the threshold for establishing abuse of process.

However, this exercise makes it necessary to apply theframework for each of the provisions at issue, ss. 8 and 10(b), to determine whether the allegations of infringements are well founded.Once each of the alleged infringements has been examined, it will then be possible to determine whether all of the infringements,considered together, amount to conduct that is vexatious to such a degree that it contravenes fundamental notions of justice and thusundermines the integrity of the justice system. The first instance judge in this case erred in law in finding that the allegations that the s. 10(

b) right to retain and instructcounsel without delay had been infringed were well founded with respect to all of the accused in group 1 solely on the basis of the policepractice of systematically postponing the exercise of this right without first considering the particular circumstances of each arrest. Thefirst instance judge had to correctly apply the s. 10(

b) framework in relation to each of the accused and draw the necessary conclusions,which he did not do. This error on its own justifies holding a new hearing on the motion for a stay of proceedings for group 1, becausethe first instance judge’s conclusion that the right of the accused to retain and instruct counsel without delay had been infringed was anessential underpinning of his ultimate conclusion that the s. 7 right of the accused in group 1 had been infringed as a result of an abuse ofprocess in the residual category.

Since the fate of the accused in groups 2, 3 and 4 depends on the fate of those in group 1, new hearingsmust also be held on the motion for a stay of proceedings for groups 2, 3 and 4. Lastly, the first instance judge erred in entering a stay of proceedings for all of the accused without considering less drasticremedies for each of them. The three conditions that must be met for a stay of proceedings to be granted are cumulative, and none ofthem is optional. The judge failed to ensure that the second condition was met in this case.

Per Rowe J.: There is agreement with the majority as to the result and in large measure as to its statement of the law and itsapplication of the law in the instant case. However, greater clarity is warranted with respect to the methodology to be used when anaccused seeks a stay of proceedings under s. 24(1) of the Charter for alleged infringements of their rights protected under ss. 8 to 14 andalso seeks a stay under s. 24(1) for abuse of process under s. 7.

Courts should apply a consistent approach to the analysis where s. 7 andss. 8 to 14 of the Charter are relied on by an accused in order to obtain a stay of proceedings. The appropriate order of operations is asfollows: where a right under ss. 8 to 14 is relied on, along with s. 7, reviewing courts should address the specific right first, including (ifnecessary) under s. 1; and if there is no infringement of the specific right, or if the infringement is justified under s. 1, only then shouldreviewing courts have regard to s. 7, and, if necessary, s. 1 once again. Cases Cited By O’Bonsawin J. Considered: R. v.

Babos, 2014 SCC 16, [2014] 1 S.C.R. 309; R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411;R. v. Castro, 2001 BCCA 507, 47 C.R. (5th) 391; R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495; referred to: R. v. Anderson, 2014SCC 41, [2014] 2 S.C.R. 167; Canada (Minister of Citizenship and Immigration) v. Tobiass, (SCC), [1997] 3 S.C.R.391; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297; R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566; Brind’Amour v. R., 2014 QCCA33; Finlay v. Canada (Minister of Finance), (SCC), [1986] 2 S.C.R. 607; Canadian Council of Churches v.

Canada(Minister of Employment and Immigration), (SCC), [1992] 1 S.C.R. 236; Brunette v. Legault Joly Thiffault, s.e.n.c.r.l.,2018 SCC 55, [2018] 3 S.C.R. 481; R. v. Albashir, 2021 SCC 48; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96; R. v. Edwards, (SCC), [1996] 1 S.C.R. 128; R. v. Rahey, (SCC), [1987] 1 S.C.R. 588; R. v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295; R.L. Crain Inc. v. Couture (1983), (SK KB), 6 D.L.R. (4th) 478; R. v. Scott, (SCC), [1990] 3 S.C.R. 979; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; R. v. Conway, (SCC), [1989] 1 S.C.R. 1659; R. v.

J.J., 2022 SCC 28; R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443; R. v. White, (SCC), [1999] 2 S.C.R. 417; R. v. Mills, (SCC), [1999] 3 S.C.R. 668; R. v. Pearson, (SCC), [1992] 3 S.C.R. 665; R. v. Seaboyer, (SCC), [1991] 2 S.C.R. 577; Thomson Newspapers Ltd. v. Canada(Director of Investigation and Research, Restrictive Trade Practices Commission), (SCC), [1990] 1 S.C.R. 425; R. v.Harrer, (SCC), [1995] 3 S.C.R. 562; Canada (Attorney General) v. Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392; R. v.Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v.

McColman, 2023 SCC 8; R. v.Bellusci, 2012 SCC 44, [2012] 2 S.C.R. 509; R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651; R. v. Bartle, (SCC),[1994] 3 S.C.R. 173; R. v. Manninen, (SCC), [1987] 1 S.C.R. 1233; R. v. Evans, (SCC), [1991] 1 S.C.R.869; R. v. Brydges, (SCC), [1990] 1 S.C.R. 190; R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460; R. v. Mian, 2014SCC 54, [2014] 2 S.C.R. 689; R. v. Strachan, (SCC), [1988] 2 S.C.R. 980; R. v. Martel, C.Q. Trois-Rivières,Nos. 400-01-064968-118, 400-01-064969-116, 400-01-064970-114, January 27, 2016; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579. By Rowe J. Referred to: R. v.

J.J., 2022 SCC 28; Canada (Attorney General) v. Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392; R. v.Harrer, (SCC), [1995] 3 S.C.R. 562; R. v. Généreux, (SCC), [1992] 1 S.C.R. 259; R. v. Pearson, (SCC), [1992] 3 S.C.R. 665; R. v. Pan, 2001 SCC 42, [2001] 2 S.C.R. 344; R. v. Cawthorne, 2016 SCC 32, [2016] 1 S.C.R.

983; R. v. St-Onge Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309; R. v. MacDonnell, (SCC), [1997] 1 S.C.R. 305. Statutes and Regulations Cited Canadian Charter of Rights and Freedoms, ss. 1, 7, 8 to 14, 24. Controlled Drugs and Substances Act, S.C. 1996, c. 19. Criminal Code, R.S.C. 1985, c. C-46, ss. 487(2) [repl. c. 25, s. 191], 487.01. Authors Cited Bachand, Frédéric. “Le droit d’agir en justice” (2020), 66 McGill L.J. 109. Cromwell, Thomas A. Locus Standi: A Commentary on the Law of Standing in Canada. Toronto: Carswell, 1986.

Paciocco, David M. “The Stay of Proceedings as a Remedy in Criminal Cases: Abusing the Abuse of Process Concept” (1991), 15 Crim.L.J. 315. Roach, Kent. Constitutional Remedies in Canada, 2nd ed. Toronto: Canada Law Book, 2013 (loose-leaf updated October 2023, release2).

APPEAL from a judgment of the Quebec Court of Appeal (Thibault, Hogue and Beaupré JJ.A.), 2021 QCCA 1317, 75 C.R. (7th) 74, [2021] AZ-51792396, [2021] J.Q. no 10437 (Lexis), 2021 CarswellQue 13674 (WL), setting aside the stays of proceedings entered by Dumas J., 2019 QCCS 6006, [2019] AZ-51792549, [2019] J.Q. no 28228 (Lexis), 2019 CarswellQue 18981 (WL), and 2018 QCCS 6155, [2018] AZ-51792548, [2018] J.Q. no 23911 (Lexis), 2018 CarswellQue 20267 (WL), and ordering a new trial. Appealdismissed. Tristan Desjardins and Michel Lebrun, for the appellants.

Nicolas Abran, Pauline Lachance, Benoit Larouche and Julien Beauchamp-Laliberté, for the respondent. Mathieu Stanton and Éric Marcoux, for the intervener the Director of Public Prosecutions. Holly Loubert and Vallery Bayly, for the intervener the Attorney General of Ontario. François Hénault and Catheryne Bélanger, for the intervener Attorney General of Quebec. Micah B. Rankin and Rome Carot, for the intervener Attorney General of British Columbia. Andrew Barg, for the intervener Attorney General of Alberta. Andrew Burgess, for the intervener the Criminal Lawyers’ Association (Ontario).

Ariane Gagnon-Rocque and Maude Cloutier, for the intervener Association québécoise des avocats et avocates de ladéfense. Molly Krishtalka, Alexandra Belley-McKinnon and Geoffroy Huet, for the intervener Association des avocats de la défensede Montréal-Laval-Longueuil. English version of the judgment of Wagner C.J. and Karakatsanis, Martin, Kasirer, Jamal and O’Bonsawin JJ. delivered by O’Bonsawin J. — I. Overview [1] The courts have a duty to protect the integrity of the justice system by dissociating themselves from state conductthat constitutes an abuse of the judicial process.

This type of abusive conduct may take all sorts of forms. In this case, the alleged abuseof process is unusual in that it results from an accumulation of infringements of the rights guaranteed by ss. 8 and 10(

b) of the CanadianCharter of Rights and Freedoms, infringements of which several but not all of the 31 appellants were the victims. These infringementsallegedly occurred in the course of a large-scale police investigation and operation known as [translation] “Project Nandou” that led tothe arrest of the 31 appellants. [2] The unusual nature of the alleged abuse of process raises two main questions. The first relates to the standing of theappellants who, for one reason or another, were not the victims of any of the infringements constituting the abuse or of any breach oftrial fairness.

In the absence of any personal prejudice, it must be asked whether these appellants were entitled to apply for a remedyunder s. 24(1) of the Charter. [3] The Superior Court answered this question in the affirmative and, after finding that there had been an abuse ofprocess in the residual category under s. 7 of the Charter, entered a stay of proceedings for all of the appellants under s. 24(1). Onappeal, the Quebec Court of Appeal ordered a new trial for all of the appellants on the ground that the Superior Court had failed toascertain whether each of them had standing to obtain a stay of proceedings.

The Court of Appeal was of the view that if the SuperiorCourt had done so, it would have concluded that some appellants did not have standing to obtain a remedy under s. 24(1).

[ 4 ] The Court of Appeal was also of the view that ascertaining the appellants’ standing required the Superior Court to determine whether each appellant’s right under s. 10(

b) of the Charter had been infringed, which it had not done. Moreover, standing had to be ascertained before the Superior Court considered whether there had been an abuse of process in the residual category under s. 7 . This layering of analytical frameworks raises the second main question in this appeal: 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 . [ 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. II.

Factual Background [ 6 ] The police operation at the centre of this appeal arose out of an investigation known as “Project Nandou” that began in November 2014 in the districts of Trois-Rivières, Québec and Chicoutimi. The investigation concerned allegations of organized trafficking in narcotics, mainly cannabis. [ 7 ] At the end of the investigation, on March 29, 2016, a first information was laid against the majority of the appellants. It charged them with having committed various indictable offences related to production of and trafficking in narcotics.

Some of the appellants were also charged with criminal organization offences. After the information was laid, a number of arrest and search warrants were issued. [ 8 ] A large-scale police operation was planned. More than 250 police officers were to take

part in it. A preparatory meeting, led by Detective Toussaint, was organized to arrange how the operation would unfold. During that meeting, the detective reiterated the importance of respecting the right of those arrested to retain and instruct counsel without delay as guaranteed by s. 10(

b) of the Charter . However, he gave no indication of when the exercise of that right should be facilitated. He said he had assumed that the arresting officers knew the rules and would know when to do so. [ 9 ] The operation got under way the morning of March 31, 2016, shortly before 7:00 a.m. The 31 appellants were almost all arrested at their residences in the first few minutes of the operation.

The others were arrested at various locations later the same day or during the days that followed. [ 10 ] 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. [ 11 ] 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. [ 12 ] In the course of the Project Nandou investigation, the police obtained a number of warrants under the Criminal Code , R.S.C. 1985, c. C-46 , and the Controlled Drugs and Substances Act , S.C. 1996, c. 19 .

Most of the warrants were authorized in the district of Trois-Rivières, but some were executed in another judicial district without being endorsed in that district. [ 13 ] Forty-four of the warrants obtained were general warrants authorized under s. 487.01 of the Criminal Code , and 40 of them required the police to give notice of a covert search to the persons concerned before the date specified in the warrant.

Twenty of those warrants were executed, but no notice was given for any of them by the specified date. [ 14 ] Following a preliminary inquiry, the 31 appellants were ordered to stand trial and later 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 with the Superior Court.

The motion contained several allegations relating to the police investigation and operation that had led to them being arrested and charged, three of which remain relevant in this appeal: (

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 withinthe meaning of the former s. 487(2) of the Criminal Code, which also allegedly resulted in the infringement of the right to be secureagainst unreasonable search or seizure guaranteed by s. 8 of the Charter. [15] During the hearing on their motion, the appellants in group 1 alleged that the accumulation of these infringements,some of them planned and intended by the police, reflected a situation of blatant disregard for their rights, met the threshold forestablishing abuse of process and left the court with no choice but to stay the proceedings against each of them.

That being said, theappellants did not focus on the breaches of trial fairness which would have resulted from the infringements, and they acknowledged thatsome of the infringements affected only part of the group and could not justify a stay of proceedings on their own. III. Judicial History A. Quebec Superior Court, 2018 QCCS 6155 (Dumas J.) [16] On August 27, 2018, the Superior Court judge granted the motion brought by the appellants in group 1 and stayed theproceedings against them.

Dealing with the right to retain and instruct counsel without delay, the Superior Court judge found from theevidence that when an appellant indicated a desire to contact counsel, [translation] “the systematic reply was that this would be donelater” at the police station (para. 75 ), even though there was no evidence that the police had examined the situation beforepostponing the exercise of the right to counsel.

In the judge’s view, that practice infringed the right of all of the appellants in group 1 toretain and instruct counsel without delay because it [translation] “amounts to a reverse onus” (para. 84; see also para. 196): the policeofficers should have assessed whether the immediate exercise of the appellants’ right to counsel was feasible as soon as the appellantsasked to exercise it, and not only when they insisted on exercising it at the scene. [17] He added that while police officers do not have to allow a person under arrest to use a seized telephone and are notrequired to provide their own cell phones, there is no reason why they cannot be equipped with inexpensive cell phones to lend to suchpersons. [18] The Superior Court judge then considered the failure by the police to give notice of a covert search within the allottedtime.

He rejected the Crown’s argument that the disclosure of evidence could substitute for the notice of a covert search required in thewarrants, finding rather that this position amounted to saying that [translation] “despite a specific order by a justice, no notice of a covertsearch will be given if the search does not yield concrete results and the person is not charged” (para. 131).

In his view, this positionarose from [translation] “institutional laxity” (para. 131). [19] With regard to the warrants authorized in the judicial district of Trois-Rivières and executed in other districts, theSuperior Court judge held that they should have been endorsed in those other judicial districts before being executed.

If this had been theonly infringement shown, he would have found that it was an error made in good faith, but in the circumstances it had to be added to theother breaches already identified. [20] Relying on the cumulative effect of these infringements and violations of the prescribed procedures, the most seriousof which were the infringements relating to the right to retain and instruct counsel without delay, the Superior Court judge held that therehad been an abuse of process in the residual category.

He found that the case involved a [translation] “systemic and persistent problem”and infringements that could bring the administration of justice into disrepute (paras. 216 and 219), which were so extreme that theyjustified entering a stay of proceedings for the seven appellants in group 1. In his opinion, continuing the proceedings would perpetuatethe prejudice to the integrity of the justice system caused by the abuse and would encourage the police to carry on acting as they had inthis case. B.

Quebec Superior Court, 2019 QCCS 6006 (Dumas J.) [21] On September 5 and 6, 2018, the other three groups of appellants (groups 2, 3 and 4) filed motions similar to the onefiled by group 1. After conferring with one another, the appellants in groups 2, 3 and 4 and the Crown consented to the evidence andarguments on group 1’s motion being entered for the hearing on the motions brought by groups 2, 3 and 4.

Without waiving their right toappeal, those parties also agreed that the decision regarding group 1 was applicable to groups 2, 3 and 4. [22] For the reasons given in the judgment rendered with respect to group 1 on August 27, 2018, and in light of theadmissions made by the parties at the hearing, the Superior Court judge stayed the proceedings against the appellants in groups 2, 3 and4 on May 7, 2019. C.

Quebec Court of Appeal, 2021 QCCA 1317, 75 C.R. (7th) 74 (Thibault, Hogue and Beaupré JJ.A.) [23] On September 3, 2021, the Court of Appeal allowed the appeals, set aside the two judgments rendered by theSuperior Court and ordered that a new trial be held, including a new hearing on the motion for a stay of proceedings and for theexclusion of evidence, before a different judge.

In its analysis, the Court of Appeal began by noting that because the rules on standing (itused the French term “qualité pour agir”) (para. 55) provide that a remedy can be granted only to a person whose own constitutionalrights have been infringed, it was therefore necessary to assess the situation of each appellant on a case-by-case basis.

The Court ofAppeal found that the Superior Court judge had erred in adopting an approach that led him to enter a stay of proceedings for all of theappellants without first assessing whether the right to retain and instruct counsel without delay guaranteed to each of them by s. 10(

b) ofthe Charter had been infringed. It also noted that some of the appellants had said that they did not wish to speak to counsel after beinginformed of their right, while others had had an opportunity to do so immediately after being arrested. [24] The Court of Appeal also identified several errors of law in the analysis of the “implementational” component of theright to retain and instruct counsel without delay and held that the Superior Court judge had erred by imposing a more onerous duty onthe police than the law imposed on them. [25] Finally, turning to the remedy granted, the Court of Appeal held that the Superior Court judge had erred in failing to

consider less drastic remedies that could have sufficed to redress the abuse of process he had found in this case. IV. Issues [26] The resolution of the appeal requires an answer to the following four questions: 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 thearrest of each appellant in groups 2, 3 and 4 after consenting to judgment? In my view, the four questions must be answered in the affirmative. V. Analysis [27] The law on abuse of process is well settled. The “key point” is that abuse of process “refers to Crown conduct that isegregious and seriously compromises trial fairness and/or the integrity of the justice system” (R. v. Anderson, 2014 SCC 41, [2014] 2S.C.R. 167, at para. 50).

As the preceding passage suggests, two types of state conduct meet the threshold for establishing abuse ofprocess: conduct that compromises trial fairness (“main category”) and conduct that, without necessarily threatening the fairness of theaccused’s trial, nevertheless undermines the integrity of the justice system (“residual category”) (Canada (Minister of Citizenship andImmigration) v. Tobiass, (SCC), [1997] 3 S.C.R. 391, at para. 89; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, atpara. 55; R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566, at para. 36; R. v.

Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31; seealso Brind’Amour v. R., 2014 QCCA 33, at para. 53). [28] While there is no actual “right against abuse of process” in the Charter, different guarantees will be engageddepending on the circumstances (R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411, at para. 73). Abuse of process in themain category engages the Charter provisions aimed primarily at protecting trial fairness for accused persons, namely ss. 8 to 14, as wellas the principles of fundamental justice set out in s. 7.

Abuse of process in the residual category, on the other hand, engages only theprinciples of fundamental justice in s. 7, which protect accused persons from any state conduct that, while not caught by ss. 8 to 14, isnevertheless unfair or vexatious to such a degree that it contravenes fundamental notions of justice and thus undermines the integrity ofthe justice system (O’Connor, at para. 73; Tobiass, at para. 89; Regan, at para. 50; Nixon, at para. 41; Babos, at para. 31). [29] When abuse of process is found in either category and a Charter guarantee has been infringed, s. 24(1) of the Chartergives a court of competent jurisdiction the power to grant “such remedy as [it] considers appropriate and just in the circumstances”.

Awide range of remedies is available to the court (see, e.g., O’Connor, at para. 77). However, a stay of proceedings is by far the remedymost sought by victims of abuse of process. Since it has been characterized as the “ultimate remedy” (Tobiass, at para. 86), a stay ofproceedings will be ordered only where the situation meets the high threshold of being one of the “clearest of cases” (O’Connor, atpara. 69).

This requires three conditions to be met: (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 balancethe interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “theinterest that society has in having a final decision on the merits” (Regan, at para. 57; Babos, at para. 32). [30] This legal framework has been refined by this Court over a period of several decades and has been applied in a varietyof circumstances.

Even so, this is the first time an appeal to the Court has raised the question of how the law on abuse of process in theresidual category applies to a group of accused persons, all of whom apply for a stay of proceedings on the ground that an accumulationof infringements of Charter rights, of which several but not all of them were the victims, causes prejudice to the integrity of the justicesystem. [31] Indeed, all of the appellants applied for a stay of proceedings under s. 24(1) of the Charter on the basis that the policeinvestigation and operation that led to the court proceedings against them were vitiated by an abuse of process in the residual category.Specifically, they alleged that an accumulation of infringements of their constitutional rights under ss. 8 and 10(

b) of the Charter met thethreshold for establishing an abuse of process in the residual category for all of them, even though several of them were not the victims ofany of these infringements or of any breach of trial fairness. This type of allegation raises two main questions. [32] The first question, focused on by the Crown and the Court of Appeal, relates to the standing of the appellants whoserights under ss. 8 and 10(

b) of the Charter were not infringed and who were not the victims of any breach of trial fairness. In the absenceof any personal prejudice, it must be asked whether these persons have standing to apply for a remedy under s. 24(1) of the Charter. [33] The second question relates to the analytical framework that the Superior Court judge had to apply in determiningwhether there had been an abuse of process in the residual category that, while falling under s. 7 of the Charter, nonetheless resultedfrom an accumulation of infringements of ss. 8 and 10(b).

When several provisions of the Charter are invoked together, what needs to beconsidered is how to reconcile the relevant frameworks, that is, the s. 7 framework and the frameworks for ss. 8 and 10(

b) of theCharter. After this question has been answered, it will then have to be determined whether the Superior Court judge correctly applied theproper framework before finding that there had been an abuse of process in the residual category.

[34] In addition to these two main questions, the Crown argues that the Superior Court judge erred in entering a stay ofproceedings for all of the appellants without considering less drastic remedies for each of them, and the appellants argue that the Crownwas precluded from raising, on appeal, the Superior Court judge’s failure to consider the particular circumstances of the arrest of eachappellant in groups 2, 3 and 4 after agreeing that the decision rendered with respect to group 1 was applicable to them. [35] The following sections address these four questions, beginning with standing. A.

Did the Appellants All Have Standing to Apply for a Remedy Under Section 24(1) of the Charter? [36] The appellants submit that they all have standing to apply for a remedy under s. 24(1) of the Charter because anaccused does not need to have suffered a [translation] “directly personal” infringement of a constitutional right in order for their rightunder s. 7 of the Charter to be infringed as a result of an abuse of process in the residual category (A.F., at para. 27).

According to them,this category concerns [translation] “the prejudice caused to the integrity of the justice system and address[es] the situation in which anaccused, without being directly targeted by the abusive conduct or affected by the prejudice resulting from it, is nonetheless the subjectof a prosecution involving such conduct” (para. 53). In other words, an accused can in some cases [translation] “make an abuse ofprocess claim without having to show that the conduct in question directly affects them” (para. 56).

For the purposes of standing, s. 24(1)of the Charter requires only [translation] “that a person be charged, or that their right to life, liberty and security of the person otherwisebe jeopardized, in a context where oppressive or vexatious state conduct related to the investigation or court proceedings concerning theperson impinges on the integrity of the justice system to such a degree that s. 7 of the Charter is infringed” (para. 72). [37] The Crown, for its part, argues that in order to have standing to apply for a remedy under s. 24(1), an accused mustallege a personal infringement of one of their Charter rights.

An accused who applies for a stay of proceedings on the basis of an abuseof process in the residual category must allege an infringement of their s. 7 right. To be able to do so, the accused does not need to havebeen personally targeted by the abusive state conduct but must be able to show that the conduct in question had a [translation] “sufficientimpact” on them (R.F., at para. 72).

According to the Crown, the Court of Appeal was therefore correct in stating that the Superior Courtjudge had erred in failing to look at the situation of each appellant individually, especially with regard to the “implementational”component of the right to counsel. That was the only way to determine whether the abusive conduct had had a sufficient impact on eachof them for the purposes of s. 7. [38] For the reasons that follow, I conclude that all of the appellants had standing to apply for a stay of proceedings unders. 24(1).

An accused has standing to apply for a remedy under s. 24(1) where they allege that one of their Charter rights has beeninfringed. The s. 7 right is one of these rights. It protects accused persons from abuse of process in the residual category.

This type ofabuse of process occurs where state conduct is unfair or vexatious to such a degree that it contravenes fundamental notions of justice andthus undermines the integrity of the justice system, regardless of its impact on the accused’s other constitutional rights or on the fairnessof their trial. [39] However, this does not mean that every accused will have standing to apply for a remedy under s. 24(1) of theCharter on the basis of any abusive state conduct, no matter what the causal connection between that conduct and the proceedingsagainst them.

To have standing, the accused must allege that the abusive conduct tainted the police investigation or operation targetingthem or the court proceedings against them. In this case, each of the appellants meets this requirement, since all of them assert that theywere directly targeted by the police investigation and operation that resulted in the alleged abusive conduct. [40] Each of these elements is explained further in the paragraphs that follow. Before discussing them, however, I believeit is important to clear up some terminological confusion.

(1) Confusion Between “Intérêt Pour Agir” and “Qualité Pour Agir” [41] In their respective factums, the Crown and the appellants use the French legal terms “intérêt pour agir” and “qualitépour agir” interchangeably (R.F., at paras. 16-17 and 53-54; A.F., at paras. 67-68). The Court of Appeal seems to have done the same(paras. 45 and 55). It is true that this Court has sometimes used these two terms, or their derivatives, in the same judgment to refer to thesame idea, that is, to what in English is called “standing” or “locus standi” (see, e.g., Finlay v.

Canada (Minister of Finance), (SCC), [1986] 2 S.C.R. 607, at pp. 615-18; Canadian Council of Churches v. Canada (Minister of Employment andImmigration), (SCC), [1992] 1 S.C.R. 236, at p. 243; Brunette v. Legault Joly Thiffault, s.e.n.c.r.l., 2018 SCC 55,[2018] 3 S.C.R. 481, at paras. 10-11). [42] In this case, it is the appellants’ “intérêt pour agir” (standing) that is being challenged by the Crown, not the “qualité”(capacity) in which they are acting, because each of them is acting in their own name and not in a particular “capacity” for one or moreother persons (see, e.g., Brunette, at para. 2).

Indeed, the Crown is disputing the appellants’ right to “seek particular relief” from a court,namely a stay of proceedings under s. 24(1) of the Charter, and to obtain a judgment on the merits of their application seeking this relief(Finlay, at p. 635; T. A. Cromwell, Locus Standi: A Commentary on the Law of Standing in Canada (1986), at pp. 7 and 9). This right isgenerally reserved to those who have a “sufficient interest” in obtaining the relief sought (Brunette, at para. 12).

As will be explainedmore fully below, the “interest” or standing of an accused is considered sufficient for the purposes of an application under s. 24(1) wherethe accused is alleging an infringement of any of their Charter rights.

(2) Standing Under Section 24(1) of the Charter Is Accorded to Accused Persons Alleging That Their Own Rights Have BeenInfringed [43] The starting point in determining whether a person has standing to apply for a remedy under s. 24(1) of the Charteris the text of this provision, which reads as follows: 24

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court ofcompetent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. [44] The Court has interpreted this text and has found it to mean that a person has standing to apply for a remedy under

s. 24(1) where the person is “alleging a violation of their own constitutional rights” (R. v. Albashir, 2021 SCC 48, at para. 33; R. v.Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 61; see also R. v. Edwards, (SCC), [1996] 1 S.C.R. 128, atpara. 55; R. v. Rahey, (SCC), [1987] 1 S.C.R. 588, at p. 619; R. v. Big M Drug Mart Ltd., (SCC), [1985]1 S.C.R. 295, at p. 313). In other words, a person’s standing will be considered sufficient only if they are alleging an infringement of anyof their Charter rights. [45] Some decisions have suggested, on the basis of a literal

interpretation of the text of s. 24, that an accused has standingto apply for a remedy under this provision and to obtain a judgment on the merits of the application only if the accused establishes thatone of their Charter rights has been infringed (see, e.g., Edwards, at para. 45(1.) and (3.)). That

interpretation conflates standing to bringproceedings with the merits of a claim (Cromwell, at p. 2; F. Bachand, “Le droit d’agir en justice” (2020), 66 McGill L.J. 109, atpp. 110-11; K. Roach, Constitutional Remedies in Canada (2nd ed. (loose-leaf)), at § 5:10). In Finlay, this Court stated that it is essentialto distinguish between standing, or the right to seek particular relief, and the entitlement to such relief (p. 635). This distinction waseloquently clarified by Scheibel J. in R.L. Crain Inc. v. Couture (1983), (SK KB), 6 D.L.R. (4th) 478 (Sask.

Q.B.): . . . the establishment of a violation of rights is prerequisite to the obtaining of a remedy. It is not a prerequisite to the commencing ofa s. 24(1) application. There should be no doubt that in order to bring a s. 24(1) application it is necessary only that the applicant allegethat his rights have been infringed or denied. [Emphasis added; p. 517.] [46] Indeed, 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 atleast 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). [47] The Court of Appeal found that standing could be accorded only to the appellants who were alleging an infringementof their own right to retain and instruct counsel without delay or, although the court did not expressly refer to it, their own right to besecure against unreasonable search or seizure (paras. 55 and 59).

In other words, it held that the appellants who did not allege that at leastone of their rights under s. 8 or 10(

b) of the Charter had been infringed did not have standing to apply for a stay of proceedings unders. 24(1) (paras. 58-59). With respect, I cannot agree with that position, because it disregards the allegation of abuse of process in theresidual category. [48] All of the appellants alleged an infringement of their right under s. 7 of the Charter on the basis of an abuse of processin the residual category (A.R., vol. XI, at pp. 101-2).

It is true that they argued that the abuse resulted from an accumulation ofinfringements of the right to be secure against unreasonable search or seizure and the right to retain and instruct counsel without delay(A.R., vol. I, at pp. 150, 154-55 and 158; see also A.R., vol. X, at pp. 55-56). It is also true that, on the face of the record, some of theappellants 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 toobtain a judgment from the court on the merits of their application if they had duly alleged all the essential elements that had to be shownin order to establish an infringement of their s. 7 right on the basis of an abuse of process in the residual category. [49] I agree with the appellants that the existence of directly personal prejudice is not one of these essential elements.

Aswill be explained more fully below, this Court has repeatedly recognized that an infringement of s. 7 of the Charter may result solelyfrom the fact that state conduct causes prejudice to the integrity of the justice system, irrespective of whether the conduct had an impacton the other rights of the person alleging it or on the fairness of their trial.

(3) 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 [50] Indeed, under the residual category of abuse of process, “prejudice . . . is better conceptualized as

an act tending toundermine society’s expectations of fairness in the administration of justice” (Nixon, at para. 41).

As L’Heureux-Dubé J. noted inO’Connor, the residual category of abuse of process does not relate to conduct affecting the fairness of the trial or impairing other procedural rights enumerated in the Charter, but insteadaddresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as toconnote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrityof the judicial process. [para. 73] [51] In other words, impairment of the accused’s other rights or of the fairness of their trial, “although relevant, is notdeterminative” (Nixon, at para. 41), because the type of prejudice addressed by the principles of fundamental justice in s. 7 goes wellbeyond personal prejudice (O’Connor, at para. 64).

All that must be found is that there is state conduct with repercussions on a largerscale, that is, conduct that causes prejudice to the integrity of the justice system in the eyes of society. [52] Of course, the personal prejudice resulting from an alleged abuse of process in the residual category will not bewithout significance when it comes time to determine whether the abuse in question occurred. In fact, breaches of the fairness of anaccused’s trial are often inseparable from and in addition to prejudice to the integrity of the justice system (O’Connor, at para. 64; seealso R. v.

Scott, (SCC), [1990] 3 S.C.R. 979, at p. 1007). [53] However, the fact remains that an accused’s s. 7 right may be infringed as a result of state conduct that meets thethreshold for establishing an abuse of process in the residual category without the accused having suffered any personal prejudice, suchas another of their constitutional rights being impaired or the fairness of their trial being compromised. [54] This does not mean that every accused will have standing to apply for a remedy under s. 24(1) on the basis of anystate conduct that undermines the integrity of the justice system, regardless of the causal connection between the abusive conduct and theproceedings against them.

For a court to find that an accused’s right under s. 7 of the Charter has been infringed as a result of an abuse ofprocess in the residual category, there must be a “sufficient causal connection” between the abusive conduct and the proceedings againstthe accused (Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at paras. 75-78). It is this connection to which

I now turn.

(4) The Proceedings Against the Accused Must Have Been Tainted by the Abusive State Conduct [55] In my opinion, the causal connection between, on the one hand, the state conduct that undermines the integrity of thejustice system and, on the other, the engagement of the accused’s interests protected by s. 7 of the Charter, that is, life, liberty andsecurity of the person, will be considered sufficient where the criminal proceedings against the accused are “tainted” (in French,entachées) by the abusive conduct (see R. v.

Conway, (SCC), [1989] 1 S.C.R. 1659, at p. 1667). [56] The proceedings against an accused will be regarded as tainted where abusive conduct occurred in the course of theproceedings or in the course of a police investigation or operation that targeted the accused or otherwise served to gather evidence toprove that the accused was guilty of the charge or charges laid against them. Obviously, the abusive conduct need not have had animpact on the accused’s other Charter rights or on the fairness of their trial in order to meet this requirement.

It need only have occurredin the course of the investigation or police operation targeting the accused or the criminal proceedings against them. In the absence ofthis connection, I have difficulty seeing how the accused’s life, liberty and security of the person are engaged by the abusive conduct. [57] This requirement is consistent with the purpose of the doctrine of abuse of process in the residual category, which is toenable courts to protect the integrity of the justice system by dissociating themselves from state conduct that constitutes an abuse of thejudicial process (D. M.

Paciocco, “The Stay of Proceedings as a Remedy in Criminal Cases: Abusing the Abuse of Process Concept”(1991), 15 Crim. L.J. 315, at p. 338). When there is no connection between the abusive conduct and the proceedings against the accused,the fact that the court dissociates itself from the conduct will not have the effect of preserving the integrity of the justice system. [58] This requirement is also consistent with the applicable framework for granting a stay of proceedings under s. 24(1)of the Charter.

This framework, which involves three cumulative conditions, is used to screen applications for stays of proceedings toensure that this remedy is available only in the “clearest of cases”, which excludes cases in which the proceedings against the accusedare not already tainted by abusive conduct. [59] This can be confirmed simply by looking at the first condition, which reflects the fact that a stay of proceedings is aprospective remedy (Tobiass, at para. 91; Regan, at para. 54).

This condition is aimed at preventing the perpetuation of prejudice to theintegrity of the justice system that, if left alone, will continue to trouble the parties and the community as a whole in the future(O’Connor, at para. 75; Tobiass, at para. 91; Regan, at para. 54; Nixon, at para. 42; Babos, at para. 35).

To this end, the court must askwhether “proceeding in light of the impugned conduct would do further harm to the integrity of the justice system” (Babos, at para. 38).This question cannot be divorced from the specific context of the court proceedings against each accused, since those are the proceedingsfor which a stay is sought (Paciocco, at p. 341).

In other words, to meet the first condition for establishing that a stay of proceedings is anappropriate remedy, the accused must satisfy the court that carrying on with the proceedings against them would in itself do further harmto the integrity of the justice system. [60] But it is only where the proceedings against an accused are tainted by abusive conduct that the accused can arguethat refusing to stay the proceedings will manifest, perpetuate or aggravate prejudice to the integrity of the justice system, as required bys. 24(1) of the Charter.

Conversely, where the proceedings against the accused are not first tainted by abusive state conduct, theaccused’s application for a stay of proceedings under s. 24(1) on the basis of the abuse will have no chance of success. For this reason, itis entirely logical and desirable that such an accused not have standing to apply for a stay of proceedings under s. 24(1) on the basis ofthat conduct. [61] Finally, the condition requiring that the proceedings be tainted by abusive conduct is consistent with the case law. InR. v.

Castro, 2001 BCCA 507, 47 C.R. (5th) 391, the British Columbia Court of Appeal had to determine whether the accusedMr. Castro and his co-accused had standing to apply for a stay of proceedings on the basis of an abuse of process in the residual categoryin a context where there was only an indirect connection between the abusive conduct and the court proceedings against them. The caseconcerned two related investigations: Project Escudo and Project Eye Spy. The latter was an undercover operation targeted at moneylaundering and drug trafficking. It led to Mr. Castro being identified as a possible drug trafficker.

Project Escudo was then put in place totarget Mr. Castro directly and was conducted in parallel with Project Eye Spy. The Crown argued that the accused, including Mr. Castro,did not have standing to assert the illegality of the transactions conducted as part of Project Eye Spy because Mr. Castro and hisco-accused were not alleging that they had participated in those transactions (para. 26). The Court of Appeal rejected that argument onthe ground that the proceedings against Mr. Castro and his co-accused were tainted by the abusive police conduct associated with ProjectEye Spy: In

summary, the appellants have standing to argue the illegality of the police conduct in Project Eye Spy because it was intended toproduce and in fact produced evidence directly leading to the appellants’ prosecution. The conduct formed a sufficiently close link withthe prosecution that it can be reasonably argued that the prosecution is tainted with illegality. Whether this amounts to an abuse ofprocess requiring a stay will be for the judge who hears the matter to decide in light of all the circumstances, including the legalopinions. [Emphasis added; para. 39.] [62] Babos provides another illustration.

In that case, one of the three forms of misconduct that Mr. Babos alleged againstthe Crown in support of his application for a stay of proceedings under s. 24(1) of the Charter for abuse of process in the residualcategory was a Crown attorney’s use of improper means to obtain the medical records of his co-accused, Mr. Piccirilli, from thedetention centre where the latter was being held pending trial. Even though that conduct was not directed at Mr. Babos and did not affectthe proceedings against him in any way, it occurred during his criminal proceedings, and no one questioned the fact that, likeMr.

Piccirilli, he had standing to allege it in support of his application for a stay of proceedings. [63] It follows that one of the essential elements that must be shown for an accused to establish that their right under s. 7of the Charter has been infringed as a result of an abuse of process in the residual category is that the abusive conduct tainted theproceedings against them. An accused who does not allege expressly or implicitly that the abusive state conduct tainted the proceedingsagainst them will therefore not have standing to apply for a remedy under s. 24(1) on the basis of such conduct.

(5) Application to the Facts [64] In this case, all of the appellants alleged that the police conduct they characterized as abusive had tainted theproceedings against them. Indeed, all of the misconduct alleged by each of them — (

i) failure to facilitate the requested access to counselat the first reasonably available opportunity during the police operation on March 31, 2016, (ii) failure to give notice to the personsagainst whom a covert search warrant was executed, contrary to the terms of the warrant, and (iii) failure to have the warrants endorsedbefore they were executed outside the district of Trois-Rivières — took place in the course of the police investigation and operationknown as Project Nandou, which directly targeted all of the appellants and served to gather evidence to prove their guilt. [65] That being said, having standing is only the first step in an application under s. 24(1) of the Charter.

Whether therewas an abuse of process in the residual category remains an open question. However, before addressing this question, I believe it will beuseful to clarify the analytical framework that applies where the existence of an abuse of process in the residual category contrary to s. 7is based on allegations that there has been an accumulation of infringements of other Charter rights, in this case the rights guaranteed byss. 8 and 10(b). B. Did the Superior Court Judge Err in Finding That There Had Been an Abuse of Process in the Residual Category?

(1) The Analytical Framework That Applies Where Abuse of Process in the Residual Category Results From the Infringement ofOther Charter Rights [66] In O’Connor, this Court stated that both s. 7 of the Charter and the specific procedural guarantees set out in ss. 8 to 14are intended to protect the individual interest of accused persons in a fair trial as well as the integrity of the justice system as a whole(paras. 64 and 73). In doing so, the Court did not recognize any “right against abuse of process” in the Charter.

It preferred to state that,“[d]epending on the circumstances, different Charter guarantees may be engaged” (para. 73). [67] Sometimes, the Charter’s specific procedural guarantees will be the best fit for remedying abuse of process. Forexample, where an accused alleges that misconduct by the Crown has prejudiced their ability to have a trial within a reasonable time, theapplication should be dealt with by applying the framework for s. 11(

b) of the Charter (O’Connor, at para. 73). [68] Where none of the specific procedural guarantees addresses the alleged misconduct, this Court has established thats. 7 of the Charter acts as a safeguard and provides accused persons with additional protection from state conduct that affects trialfairness in other ways and from “residual” conduct that otherwise undermines the integrity of the justice system (Nixon, at para. 36).

Inthis sense, s. 7 plays a role complementary to that of ss. 8 to 14 by providing residual protection against abuse of process that goesbeyond the protection offered by the specific guarantees in ss. 8 to 14. This role has also been recognized many times by the Courtoutside the abuse of process context (R. v. J.J., 2022 SCC 28, at para. 113; R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, at para. 24;R. v. White, (SCC), [1999] 2 S.C.R. 417, at para. 44; R. v. Mills, (SCC), [1999] 3 S.C.R. 668, atparas. 72 and 76; R. v. Pearson, (SCC), [1992] 3 S.C.R. 665, at p. 688; R. v.

Seaboyer, (SCC), [1991] 2S.C.R. 577, at p. 603; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade PracticesCommission), (SCC), [1990] 1 S.C.R. 425, at pp. 537-38). [69] It is therefore not uncommon for s. 7 of the Charter to be invoked at the same time as one or more other proceduralguarantees. This will be the case, for example, where alleged abusive state conduct involves more than just the infringement of aprocedural guarantee set out in ss. 8 to 14. Indeed, abusive state conduct may take all sorts of forms.

This Court has also specificallyrecognized that there may be cases in which “the nature and number of incidents, though individually unworthy of a stay, will requireone when considered together” (Babos, at para. 73). This statement applies equally at the stage of determining whether abuse of processhas occurred.

Abuse of process in the residual category can thus result from an accumulation of incidents or state misconduct.Furthermore, there is no reason why such incidents or misconduct cannot take the form of infringements of a procedural Charterguarantee and, consequently, why the alleged abuse of process cannot result from an accumulation of infringements of one or moreguarantees. [70] In these circumstances, how are the relevant analytical frameworks to be reconciled?

This Court has attempted in thepast to establish the order of priority it should follow when an infringement of s. 7 of the Charter is alleged together with aninfringement of one or more procedural guarantees (R. v. Harrer, (SCC), [1995] 3 S.C.R. 562, at para. 13; Canada(Attorney General) v.

Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392, at para. 76; J.J., at paras. 213 and 327), but because these provisionsare “inextricably” intertwined (Seaboyer, at p. 603; Mills, at para. 69; J.J., at para. 114) and complementary, the Court preferred to findas follows: The appropriate methodology for assessing multiple Charter breaches alleged by the accused may depend on the factual record, thenature of the Charter rights at play, and how they intersect.

This Court has repeatedly affirmed that the methodology for assessingmultiple alleged Charter breaches is highly context- and fact-specific . . . . (J.J., at para. 115) [71] It bears repeating that, in the abuse of process context, both s. 7 and ss. 8 to 14 of the Charter are intended to protectindividuals from conduct that is unfair or vexatious to such a degree that it contravenes fundamental notions of justice and thusundermines the integrity of the justice system (O’Connor, at paras. 64 and 73). It follows that the frameworks for analyzing theseprovisions can coexist.

Indeed, it is entirely appropriate to use the framework for abuse of process in the residual category developed forthe purposes of s. 7 to analyze any accumulation of infringements of one or more procedural guarantees in order to determine whether theinfringements as a whole meet the threshold for establishing abuse of process, that is, prejudice to the integrity of the justice system. [72] Of course, the framework applicable to each of these procedural guarantees will remain relevant in determiningwhether the infringements making up the accumulation of infringements actually occurred.

In fact, this determination will logically haveto be made before the court decides whether there has been an abuse of process in the residual category. In this way, the frameworkscoexist, those for the procedural guarantees being intertwined with the s. 7 framework.

[73] Before turning to the framework applicable in this case, I want to reiterate that proof of one or more infringements isnot necessary to establish an abuse of process in the residual category, because the focus with this type of abuse is on conduct thatundermines the integrity of the justice system, regardless of whether it breaches other Charter rights.

(2) The Framework Applicable in This Case [74] In this case, the abuse of process alleged by the appellants results from an accumulation of infringements of Charterrights, specifically the right to be secure against unreasonable search or seizure and the right to retain and instruct counsel without delay,that reflects a situation of blatant disregard for their rights by the police (A.R., vol. X, at pp. 55-56; A.R., vol. XI, at pp. 15, 70-71 and108-9). The appellants do not focus on any breach of trial fairness resulting from these infringements.

Further, they acknowledge that theinfringements in question, considered individually, cannot justify the remedy they seek, namely a stay of the proceedings against them(Sup. Ct. reasons (2018), at paras. 5, 133 and 150).

Rather, they allege that the accumulation of infringements and the police disregardfor their rights that it reflects caused prejudice to the integrity of the justice system. [75] In these circumstances, the framework developed for the purposes of s. 7 of the Charter for analyzing abuse ofprocess in the residual category should be adopted to determine whether the alleged infringements as a whole meet the threshold forestablishing abuse of process.

However, this exercise makes it necessary to apply the framework for each of the provisions at issue, ss. 8and 10(b), to determine whether the allegations of infringements are well founded. Only once each of the alleged infringements has beenexamined will it then be possible to determine whether all of the infringements, considered together, amount to conduct that is vexatiousto such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the justice system. [76] I pause here for a moment.

The appellants argue that certain infringements were [translation] “planned and intended”and that the accumulation of these infringements reflects “blatant disregard” for their rights (A.R., vol. I, at p. 96).

The appellants alsodescribe the alleged infringements of the right to retain and instruct counsel without delay as being [translation] “systematic” (p. 92).Needless to say, the deliberate and widespread nature of one or more infringements of Charter rights is relevant in determining whetherthe threshold for establishing abuse of process in the residual category is met. [77] Indeed, the Court has previously recognized the relevance of these two factors under the framework for s. 24(2) ofthe Charter at the stage of determining the seriousness of the Charter-infringing conduct (R. v.

Harrison, 2009 SCC 34, [2009] 2 S.C.R.494, at paras. 22 and 25; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 75; R. v. McColman, 2023 SCC 8, at para. 58). It is truethat s. 24(2) is analytically distinct from ss. 8 and 10(

b) in the sense that it comes into play only at the remedy stage, after aninfringement has been found. However, the fact remains that the primary concern under s. 24(2), namely public confidence in theadministration of justice (Grant, at paras. 67-68), intersects with the interest protected by s. 7 when it comes to abuse of process in theresidual category, namely the integrity of the justice system (O’Connor, at para. 61).

(3) Application to the Facts [78] The Superior Court judge held that the police had committed an accumulation of infringements of the rights of theappellants in group 1 under ss. 8 and 10(

b) of the Charter and that, when considered together and in their entire context, theseinfringements revealed a “systemic and persistent problem” (Sup. Ct. reasons (2018), at para. 216) that was extremely serious and metthe threshold for establishing abuse of process in the residual category and warranting a stay of proceedings (paras. 210, 217 and 219-20,quoting Brind’Amour, at para. 93). In the paragraphs that follow, I will consider whether the Superior Court judge erred in arriving atthat conclusion.

For this purpose, I will apply the analytical framework for each of the rights relied upon, starting — as the SuperiorCourt and the Court of Appeal did — with the right to retain and instruct counsel without delay.

Once all the allegations of infringementshave been examined, I will be able to assess whether the identified infringements as a whole meet the threshold for abuse of process inthe residual category under s. 7 of the Charter. [79] Before I begin, I think it is helpful to reiterate that “[a]ppellate intervention is warranted only where a trial judgemisdirects him or herself in law, commits a reviewable error of fact, or renders a decision that is ‘so clearly wrong as to amount to aninjustice’” (Babos, at para. 48, quoting R. v.

Bellusci, 2012 SCC 44, [2012] 2 S.C.R. 509, at para. 19; Regan, at para. 117; Tobiass, atpara. 87; R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651, at paras. 15 and 51). (

a) Right to Retain and Instruct Counsel Without Delay (

i) Applicable Law [80]

Section 10(

b) of the Charter provides that everyone has the right on arrest or detention “to retain and instruct counselwithout delay and to be informed of that right”. In R. v.

Bartle, (SCC), [1994] 3 S.C.R. 173, Lamer C.J. summarized thethree duties that this provision imposes on the police: (1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legalaid and duty counsel; (2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise theright (except in urgent and dangerous circumstances); and (3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases ofurgency or danger). (p. 192, citing R. v.

Manninen, (SCC), [1987] 1 S.C.R. 1233, at pp. 1241-42; R. v. Evans, (SCC),[1991] 1 S.C.R. 869, at p. 890; R. v. Brydges, (SCC), [1990] 1 S.C.R. 190, at pp. 203-4.) [81] The purpose of these three duties is to protect any person whose detention puts them in a situation of vulnerabilityrelative to the state (R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 2 and 40-41). While under the control of the police, the

person suffers a deprivation of liberty and is at risk of involuntary self-incrimination (R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, atpara. 22, citing Bartle, at p. 191). [82] Although the first duty is triggered immediately upon detention (Suberu, at para. 41), the second and third duties ariseonly if the detainee indicates a desire to exercise their right to counsel. Where this is the case, the police are under a

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