2012 QCCQ 14899, 2012 QCCQ 14899

LSJPA — 1240 2012 QCCQ 14899 JG2072 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ... “Youth Division” No.: 505-03-020247-120 DATE: December 3, 2012 ______________________________________________________________________ THE HONORABLE MARIO GERVAIS, PRESIDING ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v.

X Young person – Applicant ______________________________________________________________________ JUDGMENT [1] ______________________________________________________________________ [ 1 ] X, the young person, is standing trial on the following charges: 1. On or about August 2, 2011, at St-Rémi, District of Longueuil, did have in his possession, for the purpose of trafficking, cannabis (marijuana), thereby committing an indictable offence under subsections 5(2)(4) of the Controlled Drugs and Substances Act. 2.

On or about August 2, 2011, at St-Rémi, District of Longueuil, did deliberately obstruct Alain Lemieux, badge number ..., a peace officer acting in the execution of his duty, thereby committing an indictable offence under paragraphs 129 ( a )(

d) of the Criminal Code . [ 2 ] During a voir dire , the young person filed a motion under sections 7 , 8 , 9 , and paragraphs 10(

a) and (

b) of the Canadian Charter of Rights and Freedoms (the " Charter ") in which he basically alleges the unlawfulness of his arrest, the undue force used against him on that occasion, the unlawfulness of the search and resulting drug seizure, and the violation of his right to counsel of choice. [ 3 ] As a remedy, the young person seeks a stay of proceedings or, in the alternative, the exclusion of the evidence obtained, the whole under subsections 24(1) and (2) of the Charter . [ 4 ] The Facts [ 5 ] Officers Alain Lemieux and Bruno Lefebvre work for the Sûreté du Québec. [ 6 ] During the summer of 2011, the officers were informed that municipal councillors were complaining about loitering in Saint-

Rémi and wanted the by-laws governing such matters to be more rigorously enforced. [ 7 ] In the evening of August 2, 2011, Officers Lemieux and Lefebvre were in their police car patrolling in the municipality of Saint- Rémi. [ 8 ] Around 8:55 p.m., on the corner of Notre-Dame and Lachapelle Streets, they observed four young persons near a garbage dumpster in a restaurant parking lot. The establishment was open, but the parking lot was empty. [ 9 ] The officers turned around and parked the patrol car near the scene. They exited their vehicle and approached the group, which consisted of three girls and one boy.

The boy was sitting on the ground, while the three girls were standing near him. [ 10 ] The officers observed the scene. They had not yet decided whether to issue a ticket; indeed, if the young persons had been cooperative and identified themselves, the officers might simply have informed them of the by-law prohibiting loitering in public places. [ 11 ] Moving toward the young persons, the officers observed that the boy in the group noticed them, hurriedly put various objects in his backpack, and fled.

When he began to run, he was about 25 to 30 metres away from the police officers. [ 12 ] The girls, for their part, watched the scene impassively, remaining where they were. [ 13 ] Officer Lemieux yelled out to the boy: [ translation ] "Police! Stop running!" [2] But the young person continued to flee. [ 14 ] The two officers ran after the young person. Suddenly, Officer Lemieux's radio slid and became tangled around his legs, hobbling him and forcing him to stop the pursuit.

Bystanders witnessing the scene erupted in laughter. [ 15 ] Officer Lefebvre, for his part, continued to run but lost sight of the young person. The two officers were now separated. [ 16 ] One of the officers used his radio to call his colleagues for backup. [ 17 ] Officer Lemieux then climbed into the automobile of a citizen witnessing the events, who agreed to help him. They quickly caught up to the suspect. [ 18 ] Officer Lemieux exited the vehicle. Again, he ordered the boy to stop running. The young person, out of breath, obeyed for a brief moment.

He then continued to move away, now walking slowly while looking behind him. [ 19 ] This time, Officer Lemieux told him to stop and lie down on the ground. The young person continued to move away. [ 20 ] In his testimony, Officer Lemieux stated that, at that moment, he could no longer see the young person's right hand, which seemed to be moving. He repeatedly instructed the boy to lie down on the ground with his arms spread. [ 21 ] Officer Lemieux then drew his firearm and pointed it at the young person.

According to Officer Lemieux, the young person [ translation ] "sat or squatted down", [3] but Officer Lefebvre states that he [ translation ] "knelt down". [4] The young person then obeyed the orders and lay on the ground, prone, his arms extended. [ 22 ] When Officer Lefebvre caught up with Officer Lemieux, he observed that his colleague was aiming his gun at the young person. About three metres separated the two. The young person was on his knees, arms outstretched.

Officer Lefebvre noted that five seconds passed before the young person moved from a kneeling position to a prone position. [ 23 ] Officer Lefebvre does not know what happened. Seeing that his colleague's weapon was drawn, he realized that the situation was [ translation ] "high risk". [5] He was very careful not to enter the line of fire. [ 24 ] Once the young person was on the ground with his arms spread, Officer Lemieux signalled to Officer Lefebvre that he could intervene. Officer Lefebvre handcuffed the young person. [ 25 ] As he was doing so, Officer Lemieux asked the young person why he had run away.

The young person answered that he was in possession of cannabis. [6] [ 26 ] Officer Lemieux holstered his firearm once the young person was in handcuffs. [ 27 ] Officer Lemieux searched the young person's trouser pockets and backpack. He seized a wallet containing $205 from his trousers, along with $20, two electronic scales, two small bags containing plant matter, and about twenty empty small plastic bags from his backpack. [ 28 ] Around 9:00 p.m., the young person was arrested for possession of drugs for the purpose of trafficking and for obstructing a peace officer. He was given a

summary caution informing him of [ translation ] "his right to silence, his right to counsel, his right to his parents". [7] [ 29 ] Sergeant Miclette and Officer Angers then arrived at the scene as backup. [ 30 ] The young person was escorted to the patrol car, where the caution was repeated by the same officer, who this time referred to a document entitled [ translation ] " Youth Criminal Justice Act, minors under arrest". [8] [ 31 ] This document was read to him in its entirety. On a few occasions, Officer Lemieux asked him if he understood the meaning. Every time, the young person answered in the affirmative.

It took two minutes for the caution to be read. [ 32 ] The young person then asked to speak with his father. To this end, Officer Lemieux dialled the telephone number, spoke briefly

with the father, and gave his cell phone to the young person. The two officers exited the patrol vehicle to allow the young person to speak with his father privately. [ 33 ] The police officers then drove the young person to his father's home. A written statement was taken in the patrol vehicle, in the presence of the father and the two officers. [ 34 ] After filling out a few documents, the young person was released at his domicile into the care of his father.

He was informed that he would receive a summons. [ 35 ] No ticket for contravening the loitering by-law was issued. [ 36 ] During their testimony, each of the officers respectively raised various grounds to justify the pursuit and arrest of the young person: ➢ the young person's suspicious behaviour when he hurriedly picked up various objects, put them in his backpack, and fled; ➢ the need to identify him to issue a ticket for loitering; ➢ the need to know his reasons for fleeing. [ 37 ] Analysis [ 38 ] The peace officers' powers of arrest [ 39 ] The Quebec Code of Penal Procedure confers on peace officers the power to arrest in certain circumstances.

It states: 72. A peace officer who has reasonable grounds to believe that a person has committed an offence may require the person to give him his name and address, if he does not know them, so that a statement of offence may be prepared. A peace officer who has reasonable grounds to believe that the person has not given him his real name and address may require further information from the person to confirm their accuracy. 73. A person may refuse to give his name and address or further information to confirm their accuracy so long as he is not informed of the offence alleged against him. 74.

A peace officer may arrest without a warrant a person informed of the offence alleged against him who, despite the peace officer's demand, fails or refuses to give him his name and address or further information to confirm their accuracy. The person so arrested must be released from custody by the person detaining him once he gives his name and address or once their accuracy is confirmed. 75. A peace officer who finds a person committing an offence may arrest him without a warrant if that is the only reasonable means available to him to put an end to the commission of the offence.

The person so arrested must be released from custody by the person detaining him once the latter person has reasonable grounds to believe that detention is no longer necessary to prevent, for the time being, the repetition or continuation of the offence. [ 40 ] Under these provisions, a peace officer who has reasonable grounds to believe that a person has committed an offence may, after informing the person of the offence alleged, require the person to identify himself or herself. [ 41 ] If the person asked to identify himself or herself in such circumstances fails to do so, the peace officer may proceed with an arrest without a warrant.

As soon as the person complies with the order to provide identification, however, he or she must be released immediately. [ 42 ] In this case, the Court is of the view that Officers Lemieux and Lefebvre had reasonable grounds to believe that the accused had contravened the municipal by-law against loitering, given their observations: ➢ Four young persons were in the parking lot of a public area, near a garbage dumpster. ➢ The parking lot was deserted. ➢ The four young persons were not moving around very much; the male young person was even sitting on the ground. ➢ After the peace officers drove by in their patrol car, made a half-turn, parked the car, exited the vehicle, and began their approach, the young persons remained in similar positions, with the boy sitting down and the girls standing near him. [ 43 ] The officers were therefore entitled to require the young person to identify himself after having informed him of the offence in question.

If he failed to identify himself, the officers were entitled to arrest him without a warrant. [ 44 ] Because the young person fled so quickly, it was impossible for the police officers to fulfill their obligation to inform the young person of the offence before arresting him without a warrant. [ 45 ] In this context, did the failure to inform him beforehand prevent the peace officers from proceeding with the young person's arrest without a warrant?

[ 46 ] This question can only be answered in the negative. The Court reiterates: it was impossible for the officers to fulfil this obligation. For all legal purposes, they cannot be blamed for failing to do so. They were within their rights to pursue the young person and arrest him. [ 47 ] With respect, a different finding could only be based on a literal, out-of-context

interpretation, that would easily neutralize the power of peace officers to arrest without a warrant. [ 48 ] Moreover, it is settled law that, in addition to their power of arrest, police officers also have the power to detain a person for investigative purposes. [ 49 ] As the Supreme Court states in R. v. Mann , [9] this power must be based on the existence of reasonable grounds to suspect that the person is connected to the commission of an offence. [ 50 ] In this test, the threshold for police involvement is less stringent than that in cases of arrest without a warrant.

France Charbonneau J. has written the following on this subject: [10] [ translation ] [18] As for the first ground of appeal, it refers to the notion of investigative detention. This notion has frequently been analyzed by the courts.

The lawfulness of this type of police intervention, which is based not on reasonable grounds but on "reasonable suspicion", finds its origins in the common law and has been developed mostly in the United States. [ 51 ] Investigative detention represents a specific application of the general mandate of police officers to keep the peace and investigate crimes, as well as the usefulness of empowering them "to respond quickly, effectively, and flexibly to the diversity of encounters experienced daily on the front lines of policing". [11] [ 52 ] In this case, the Court finds that Officers Lemieux and Lefebvre had a "reasonable suspicion" that the young person had committed an offence because, in addition to their observations listed in paragraph [41] above, they saw: ➢ that the young person saw them; ➢ that the young person immediately gathered up various objects and hurriedly put them in his backpack; ➢ that the young person began to flee on foot. [ 53 ] It was therefore legitimate for the peace officers to pursue him with a view to detaining and questioning him for investigative purposes. [ 54 ] As soon as the young person began to flee, the officers gave him the order to stop.

This order, lawfully given in light of the situation described above, was repeated. The young person did not comply and tried to evade the police officers. [ 55 ] It is at this point in the sequence of events that the justification for the police intervention begins to take a different shape. At first a purely provincial statutory matter of arrest for identification purposes or a matter of investigative detention, the situation now concerned obstruction of a peace officer and the power of a peace officer to arrest without a warrant under the Criminal Code . In this respect, section 495(1) states:

(1) A peace officer may arrest without warrant: (

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence; (

b) a person whom he finds committing a criminal offence; (

c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in

Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.

(2) A peace officer shall not arrest a person without warrant for (

a) an indictable offence mentioned in

section 553, (

b) an offence for which the person may be prosecuted by indictment or for which he is punishable on

summary conviction, or (

c) an offence punishable on

summary conviction, in any case where

(

d) he believes on reasonable grounds that the public interest, having regard to all the circumstances including the need to (

i) establish the identity of the person, (ii) secure or preserve evidence of or relating to the offence, or (iii) prevent the continuation or repetition of the offence or the commission of another offence, may be satisfied without so arresting the person, and (

e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to be dealt with according to law.

(3) Notwithstanding subsection (2), a peace officer acting under subsection (1) is deemed to be acting lawfully and in the execution of his duty for the purposes of (

a) any proceedings under this or any other Act of Parliament; and (

b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (2). [ 56 ] In R. v. Storrey , [12] the Supreme Court affirms that reasonable grounds for arrest are both objective and subjective, stating: In

summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds.

Specifically they are not required to establish a prima facie c ase for conviction before making the arrest. [ 57 ] In their testimony, the police officers listed the elements constituting subjectively reasonable grounds that led them to arrest the young person for obstructing a peace officer. [ 58 ] As for the objective assessment of these grounds, the Court finds that the young person's initial flight, his refusal to obey an order that was lawfully given at the outset and then repeated, and his subsequent running at breakneck speed, in light of all of the circumstances described above, objectively created reasonable grounds for arresting the young person for obstructing a peace officer. [ 59 ] Therefore, the Court finds that the police officers had the power to arrest the young person without a warrant for the offence of obstructing a peace officer. [ 60 ] The Charter violations [ 61 ] That said, however, peace officers are required to exercise their powers of arrest and investigative detention reasonably.

Their execution must be measured, in accordance with the guidelines established by law, and without the use of excessive force or constraint. [ 62 ] This is the context in which the Court will now analyze and interpret Officer Lemieux's use of a firearm. [ 63 ] In short, peace officers have a general duty to protect lives and property in the performance of their duties. When carrying out an arrest, they may use the force required to arrest a person or prevent them from escaping.

Police officers must perform this mandate effectively and safely. [13] [ 64 ] There is no need, however, for a long legal discussion to state that firearms should be used by peace officers as a last resort and only in cases presenting an imminent danger or an absolute need to protect human life, especially in cases involving the arrest of a minor. [ 65 ] All other methods of intervention are preferred, given the serious risk to human life associated with the use of a firearm.

Police officers are specifically instructed and trained to use alternative methods of intervention and to use a firearm only as a last resort. [ 66 ] In a free and democratic society, the right to "life, liberty and security of the person" [14] may be infringed only "in accordance with the principles of fundamental justice". [15] It goes without saying that, at its most basic level, this statement means that this right – namely, the right to life – must not be endangered by the unreasonable use of force and a firearm by the police. [ 67 ] The Court repeats that in such cases peace officers are required to act with prudence and common sense. [ 68 ] Here, Officer Lemieux described the circumstances leading to the use of his firearm as follows: [16] [ translation ]

2 Q. About the weapon, can you say 3 at what moment exactly you drew your weapon? 4 A. Ah well. As soon as I saw that the verbal commands 5 that I was giving....there was nothing that... I saw 6 no reaction indicating that he was listening or that..., and when 7 I saw that his hands, I... I couldn't see his 8 hands. At that moment I drew my gun. 9 Q. So he was ahead of you, his back turned, walking, looking 10 sideways, he was out of breath and... as soon as, he 11 in fact didn't respond to your orders, you gave him 12 the order to stop several times, and then, 13 at that moment you took out your weapon. 14 A.

Yeah well, you made a mistake there: ... he 15 wasn't looking sideways, he was looking behind him to see whether 16 I was following him. And then it's yes. 17. Q. So that was when you drew your 18 weapon. At that moment... he had his back to you, at what 19 moment did he... 20 A. He was like, he was walking... how... I 21 could almost say at a 45-degree angle, but moving away 22 the whole time toward... from me. 23 Q. And at what moment did he decide to stop? 24 A. He took maybe about a dozen steps. He 25 stopped, he sat down.

Now I couldn't see his hands [ 69 ] Although Officer Lemieux testified that he was concerned or even worried about the fact that he could not see the young person's hands, he never indicated that he truly and seriously feared for his safety. Officer Lemieux's subjective apprehension of imminent danger is not demonstrated by the evidence. Quite the contrary, in fact. [ 70 ] Let us move on to the objective circumstances. The evidence as a whole reveals the following: ➢ The young person was out of breath. Officer Lemieux states that the young person's breathlessness was evident.

He had run a long time, he was breathing rapidly, [ translation ] "you could see his lungs..." [17] , as Officer Lemieux put it, in all likelihood referring to the movement of his ribcage. Although the Court does not conclude that the young person was totally incapable of attacking at that moment due to his condition, this objective circumstance does mitigate the apprehension of a sudden and dangerous attack. ➢ The young person displayed no aggression. [18] Indeed, at no time did the young person have an attitude that could suggest any form of aggression on his part.

The young person showed no hostility or any other negative emotion likely to generate a reasonable fear. ➢ Despite repeated orders to stop, the young person continued to move away, his back turned to the officer. Ignoring the orders to stop, the young person, who was out of breath, slowly moved away from Officer Lemieux [ translation ] "so that I wouldn't get closer to him". [19] By moving away, the young person was trying to put more distance between himself and the police officer.

Once again, this attitude is inconsistent with the perception of a sudden and dangerous attack. ➢ As he moved away, the young person turned his back (at a 45-degree angle) to Officer Lemieux. Although a pivot is a quick manoeuvre quickly, having one’s back turned is not a favourable basic position from which to launch an attack.

➢ There were about two or three metres between the two of them. This was a distance maintained by the police officer himself, since the young person was trying to move away. ➢ Officer Lemieux could not see the young person's hands. He drew his firearm, once again ordering the young person to lie face down on the ground and extend his arms away from his body. Out of all of the evidence, this circumstance is the only one that can create a certain objective apprehension because it leaves various possibilities open.

As in each of the preceding circumstances, however, it must be considered both in terms of what it represents and creates both on its own and in light of the circumstances as a whole. [ 71 ] The Court has no hesitation in finding that the objective circumstances identified above could not reasonably create a reasonable apprehension of an imminent danger of harm to Officer Lemieux. [ 72 ] In the general context described above, the young person's rapid flight, coupled with nothing more than the fact that his hands were not clearly visible, do not lead to an apprehension of an imminent danger to the officer's safety.

Clearly, when taken together, the circumstances are inconsistent with such a fear. [ 73 ] Even allowing for some clemency and giving Officer Lemieux a bit of latitude since he made a split-second decision without the benefit of any deep thought beforehand, this conclusion remains unchanged. [ 74 ] In this case, there is no basis whatsoever for finding that Officer Lemieux used his weapon as a last resort. [ 75 ] But there is more. [ 76 ] The Court will also consider the manner in which the firearm was used. [ 77 ] In his testimony, Officer Lefebvre stated: [20] [ translation ] 15 Q.

And, when you arrived at the scene, 16 the individual, in fact Mr. X., was on his knees and 17 your colleague was aiming the weapon in the direction of 18 Mr. X ? 19 A. Yes . 20 Q. And, then, at that moment, you stated that 21 your colleague, Officer Lemieux, 22 asked him to lie down on the ground, correct? 23 A. Yes. 24 Q. And in fact to extend his hands away from his body 25 so he could lie down. Did that individual 1 comply with this request? 2. A.

Not at the exact moment I arrived there, but it 3. didn't take long, I would say five seconds . [ 78 ] Honestly, this narrative sends shivers down my spine. [ 79 ] The Court recognizes the basis of the Crown's argument whereby this case cannot be treated as nothing more than a violation of a municipal by-law prohibiting loitering. It is true that successive events transformed the grounds for the initial intervention. [ 80 ] Then again, this does not mean that the grounds of the initial intervention ought to be disregarded entirely.

Essentially, this case concerned merely the violation of a municipal by-law prohibiting loitering in public places. It was not a manhunt following an armed robbery or a home invasion, situations that would obviously have been more worrying in terms of the safety of the peace officers. [ 81 ] What the Court sternly deplores is the escalation and recklessness of the police intervention. It is one thing for a peace officer to bring his hand to his weapon. It is another to draw it and keep it aimed at the ground.

But to draw a gun on a young person in a situation like the one described above – such an action is utterly appalling. [ 82 ] The Court finds that there was no imminent danger to Officer Lemieux during his intervention. Moreover, during the entire sequence of events where the young person was kneeling on the ground, then lying face-down with arms stretched out along his body, and then brought under control and handcuffed by Officer Lefebvre, the threat to Officer Lemieux's safety was non-existent. The young person was completely helpless and vulnerable.

Why did he continue to aim his gun at the young person the entire time?

[ 83 ] This last situation, described by Officer Lefebvre himself as [ translation ] "high-risk", constitutes a flagrant, serious, reckless, and dangerous violation of the right to life, freedom and security of the person enshrined in

section 7 of the Charter . [ 84 ] Moreover, this completely aberrant and extreme police misconduct clearly exceeds a peace officer's power of arrest without a warrant under the Criminal Code and the Code of Criminal Procedure (the latter of which is limited to the purpose of identifying the offender or issuing a ticket) or the power of investigative detention. [ 85 ] And what of the subsequent events? [ 86 ] While the young person was on the ground, overpowered and handcuffed, at no point was he informed of the reasons for his detention, his right to silence, or his right to instruct counsel without delay . [ 87 ] Instead, he was questioned about his reasons for running away.

An incriminating response was obtained. There followed a search of his person and his backpack. After a few objects were seized, including two pouches of drugs from the backpack, he was formally arrested for drug trafficking and obstructing a peace officer. He was given a

summary caution. [ 88 ] This sequence of events featured numerous Charter violations.

A review of a few elementary notions in connection with the facts of this case is in order. ➢ The Charter applies to provincial offences as well as criminal offences; [21] ➢ Basically, a person who has been overpowered and handcuffed is detained within the meaning of the Charter because of the "deprivation of liberty by physical constraint"; [22] ➢ The fact that the young person was not formally arrested until a little while later, around 9:00 p.m., after he had been questioned and searched, does not delay his acquisition of the status of detainee and the rights that flow therefrom; ➢ The treatment of a person who is detained through the "deprivation of liberty by physical constraint", a formal arrest, or an investigative detention must be compliant with the Charter . [23] [ 89 ] Since the young person was a detainee when he was overpowered and handcuffed, the peace officers should have informed him at that moment of the grounds for detention, his right to silence, and his right to instruct counsel without delay.

Paragraphs 10(

a) and (

b) of the Charter were violated. [ 90 ] The question the young person was asked at that moment (why did he flee) and his answer (he was in possession of cannabis) were the key elements that triggered the search of his backpack in which the drug was found. This search was carried out in the context of a violation of paragraphs 10(

a) and (

b) of the Charter . Had this not been so , there would have been no indication that this crime was being perpetrated. Therefore, the search was performed without the requisite foundation of reasonable grounds. It was unreasonable and contrary to

section 8 of the Charter . [24] [ 91 ] For the purposes of this discussion, the Court adds that, even if the peace officer had acted in the context of a lawful, Charter - compliant search incidental to an arrest, only the search of the person would have been permitted. Searching the backpack in which the drugs were hidden still would not have been permitted. [ 92 ] In Cloutier v.

Langlois , [25] the Supreme Court describes a typical search incidental to arrest: In this regard a "frisk" search is a relatively non-intrusive procedure: outside clothing is patted down to determine whether there is anything on the person of the arrested individual. Pockets may be examined but the clothing is not removed and no physical force is applied. The duration of the search is only a few seconds.

Though the search, if conducted, is in addition to the arrest, which generally entails a considerably longer and more sustained loss of freedom and dignity, a brief search does not constitute, in view of the objectives sought, a disproportionate interference with the freedom of persons lawfully arrested. There exists no less intrusive means of attaining these objectives. [ 93 ] In the case at bar, the circumstances as a whole as revealed by the evidence did not justify proceeding in any manner other than the usual one described in the excerpt above.

The young person should have simply been frisked and his pockets examined. The backpack should not have been searched. Only a wallet containing $205 would have been seized, which in itself would have raised no suspicion that any law was being broken and would not have justified a more thorough search. [ 94 ] The remedy [ 95 ] The young person seeks a stay of proceedings as a remedy. [ 96 ] It is trite law that the criteria for ordering a stay of proceedings are very stringent. A stay of proceedings is exceptional, an ultimate remedy available in only the clearest of cases. ➢ In R. v.

Power , [26] the Supreme Court writes: I, therefore, conclude that, in criminal cases, courts have a residual discretion to remedy an abuse of the court's process but only in the "clearest of cases", which, in my view, amounts to conduct which shocks the conscience of the community and is so detrimental to the proper administration of justice that it warrants judicial intervention. ➢ In R. v. Regan , [27] it states: A stay of proceedings is only one remedy to an abuse of process, but the most drastic one: “that ultimate remedy”, as this Court in Tobiass , supra , at para. 86 , called it.

It is ultimate in the sense that it is final. Charges that are stayed may never be prosecuted; an

alleged victim will never get his or her day in court; society will never have the matter resolved by a trier of fact. For these reasons, a stay is reserved for only those cases of abuse where a very high threshold is met: “the threshold for obtaining a stay of proceedings remains, under the Charter as under the common law doctrine of abuse of process, the ‘clearest of cases’” ( O’Connor , supra , at para. 68). ➢ In R. v. Alexandre , [28] the Court of Appeal writes: [ translation ] [63] The criteria for determining whether a stay of proceedings should be ordered are exceptionally strict.

Because a permanent stay of proceedings is the ultimate remedy in abuse of process cases, it may be applied only in "the clearest of cases". ... ➢ In R. v. Gorenko , [29] the Court of Appeal writes: [ translation ] [32] ...

(3) A permanent stay of proceedings is a drastic remedy to abuse of process. Such a remedy must therefore be reserved for only the most serious or clearest of cases; [ 97 ] When it is ordered, the following principles apply: ➢ In R. v.

Regan , [30] the Supreme Court states: [54] Regardless of whether the abuse causes prejudice to the accused, because of an unfair trial, or to the integrity of the justice system, a stay of proceedings will only be appropriate when two criteria are met: (1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and (2) no other remedy is reasonably capable of removing that prejudice. [ O’Connor , at para. 75]. The Court’s judgment in Tobiass , at para. 91 , emphasized that the first criterion is critically important.

It reflects the fact that a stay of proceedings is a prospective rather than a retroactive remedy. A stay of proceedings does not merely redress a past wrong. It aims to prevent the perpetuation of a wrong that, if left alone, will continue to trouble the parties and the community as a whole, in the future. [55] As discussed above, most cases of abuse of process will cause prejudice by rendering the trial unfair.

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

When dealing with an abuse which falls into the residual category, generally speaking, a stay of proceedings is only appropriate when the abuse is likely to continue or be carried forward. Only in “exceptional”, “relatively very rare” cases will the past misconduct be “so egregious that the mere fact of going forward in the light of it will be offensive” ( Tobiass , at para. 91 ). (Emphasis added) ➢ The Court of Appeal, in R. v. Gorenko , [31] states: [ translation ] [32] ... (2) ...

This residual category does not relate to conduct impairing the fairness of the trial or other procedural rights, but instead addresses : ...the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process” . ... 4.

Regardless of whether the abuse causes prejudice to the accused because of an unfair trial, or to the integrity of the justice system, a stay of proceedings will only be appropriate when two criteria are met: (1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and (2) no other remedy is reasonably capable of removing that prejudice. 5. The first test is of critical importance. It reflects the prospective nature of a stay of proceedings as a remedy. It does not redress a past wrong.

It aims to prevent the perpetuation of a wrong that, if left alone, will continue to trouble the parties and the community as a whole in the future. When the abuse falls into the residual category, a stay of proceedings will generally constitute an appropriate remedy if the abuse is likely to continue or recur. It is only in exceptional, very rare, cases that the impugned conduct will be so serious that the very

act of continuing the trial would be troubling. 6. In this context, any risk of recurring abuse should the trial be continued must be assessed as against potential remedies that would be less drastic than a stay of proceedings. Once it has been established that the abuse will continue to undermine the judicial process and that no remedy other than a stay will correct the problem, the judge can exercise his discretionary power to order a stay. 7.

If there remains a degree of uncertainty as to the possibility of making the prejudice disappear, in light of the prospective nature of the first criterion, the judge may then apply the third criterion, that is, to balance the interests served by the granting of a stay of proceedings as against society’s interest in having a final decision on the merits. In some situations, society’s irresistible interest in seeing a debate on the merits may bring about a conclusion that the allegation of abuse of process cannot justify a judicial stay of proceedings.

With regard to the particular facts of cases brought before the Supreme Court, that court has determined that revocation of citizenship for war crimes as well as sexual assault allegations against vulnerable young girls and women were cases where the continuation of the trial did not take on an ongoing appearance of injustice. (Emphasis added) [ 98 ] The Court has found that Officer Lemieux's reprehensible conduct with respect to his use of his firearm was a flagrant, serious, reckless, and dangerous violation of the right to life, liberty and security of the person enshrined in

section 7 of the Charter . [ 99 ] Does this violation fall within the residual category [32] referred to in the judgments quoted above? [ 100 ] As Louis Legault J. points out in R. v.

Bellusci , [33] recently upheld by the Supreme Court, [34] the residual category calls into play [ translation ] "the integrity of the judicial process through police misconduct that renders the actions of agents of the State and even third parties to the dispute oppressive or even vexatious when the values and principles of fundamental justice are violated in a manner that shocks the conscience of the public and its sense of justice and decency.

This is a matter of public interest". [ 101 ] Will the prejudice caused by the abuse in question be manifested, perpetuated or aggravated through the conduct of the trial or by its outcome? [ 102 ] This question reflects the prospective, as opposed to retroactive, nature ofthe remedy sought by the young person. [ 103 ] In this case, Officer Lemieux's aiming of his firearm at a young person in the absence of any imminent threat to his safety is unacceptable and intolerable in a free and democratic society where police interventions are highly circumscribed. [ 104 ] A reasonable, well-informed citizen would be profoundly shocked to witness a scene in which a young person had a gun trained on him while he knelt down for five seconds as he prepared to lie down on the ground and while Officer Lefebvre took physical control of him and placed his hands in handcuffs behind his back. [ 105 ] Even taking into account that the situation developed into the offence of obstructing a peace officer the moment the weapon was drawn, Officer Lemieux's actions placed the young person's life at the mercy of a gun barrel pointed straight at him, merely for having violated a municipal loitering by-law. [ 106 ] In light of the preceding, the Court once again adopts the remarks of Louis Legault J. in R. v.

Bellusci , supra , which are entirely applicable in the present case: [ translation ] [76] Also in Conway , McLachlin J. recalls that prosecutions become oppressive or vexatious not only when the fairness of the trial is affected but also due to the public interest, which also demands not merely a fair and equitable trial but also the proper administration of justice. ... [78] Abuse of process is also a matter of fundamental justice and of the general individual rights that characterize the administration of justice as a whole ( R. v.

O'Connor at para. 73 ). [ 107 ] Young persons, like all other citizens, have the right to be treated with dignity and with respect for their bodily integrity.

Moreover, to the extent that the creation of a separate criminal justice system is "based on recognition of the presumption of diminished moral blameworthiness of young persons and on their heightened vulnerability in dealing with the justice system" [35] and on their lack of maturity, Officer Lemieux's conduct is all the more reprehensible. [ 108 ] In this context, serious prejudice was suffered not only by the young person but also by society, whose image of justice is significantly tarnished by such police conduct. [ 109 ] Therefore, the remedy sought must also aim to preserve the integrity of and, consequently, public confidence in our criminal justice system. [ 110 ] Would any other remedy be reasonably capable of removing that prejudice? [ 111 ] In itself, the Court's conclusion that serious prejudice was suffered not only by the young person but also by society whose image of justice has been significantly tarnished does not really leave any room for another remedy in the specific circumstances of this case. [ 112 ] The interest of society requires a denunciation of the peace officer's misconduct as revealed by the evidence.

It also requires a reiteration of the fundamental rights of individuals targeted by a police intervention in a society based on the rule of law, particularly in a case involving a young person. And finally, it requires the maintenance of the integrity of our criminal justice system, including the

separate system applying to young persons. [ 113 ] In answering these needs, the Court will not go so far as to state that young persons are entitled to greater, broader Charter rights. Rather, it will simply state that, once a violation is found, the general considerations listed above must be taken into account, as must the guiding principles underlying the creation of a separate justice system for young persons, which have been undermined in this case.

The remedy must reflect all of these concerns. [ 114 ] The Crown asks the Court to order a different remedy, namely, the exclusion of evidence. [ 115 ] But which evidence? Which piece of evidence should be excluded under this precise point to sanction the improper use of firearm?

There must still be an appropriate balance between the remedy and the violation. [ 116 ] If a rational connection can be established in this case between: ➢ on the one hand, the violation of the young person's right to be informed of the reasons for his detention, his right to silence and to instruct counsel without delay, and his right to be secure against the unreasonable search of his backpack and ➢ on the other, the exclusion of the cannabis and other items seized the exclusion might be possible as a remedy for the unlawful search, given the violation of

section 8 and subsections 10(

a) and (

b) of the Charter . The analysis should then focus on the following elements: ➢ the seriousness of the Charter -infringing conduct of the State; ➢ the affect of the violation on Charter rights; ➢ the interest of society to see the matter judged on its merits; ➢ the outcome when all of these factors are weighed against each other. [ 117 ] The Court finds it difficult, however, to identify the evidence to be excluded as a suitable remedy for the violation of

section 7 of the Charter . What is the rational connection between any exclusion and the violation of the right to life, security of the person, and bodily integrity? [ 118 ] Moreover, given the violations of

section 8 and subsections 10(

a) and (

b) of the Charter , which in themselves could be raised as serious arguments for excluding evidence, the Court would simply be erasing the most serious violation, that of

section 7 of the Charter , by not allowing it to be revealed through the evidence. This intolerable and unacceptable violation would in a way be obscured by the remedy. [ 119 ] Thus, mere exclusion of the evidence would clearly strike an unsatisfying balance between the seriousness of the violation and the principles guiding the determination of a suitable remedy. [ 120 ] As for a possible sentence reduction, it is sufficient to recall that the young person is presumed innocent when standing trial.

Such a remedy cannot be considered. [ 121 ] One final word. [ 122 ] The Court recognizes that the violation of the young person's right to be informed of the reasons for his detention, his right to silence and to instruct counsel without delay, and his right to be secure against the unreasonable search of his backpack do not in themselves justify a stay of proceedings. [ 123 ] Can the cumulative effect of these violations on the fairness of the trial nevertheless influence the determination of the appropriate remedy? [36] [ 124 ] Let us be clear: the Court's conclusion that the young person's right to life, liberty, and security of the person protected by

section 7 of the Charter was violated in itself justifies a stay of proceedings. [ 125 ] The Court will simply add that, if judicial discretion allowed the entire police intervention and of the multiple Charter violations to be considered to further justify ordering a stay of proceedings, it would have taken this approach. [ 126 ] FOR THESE REASONS, THE COURT: [ 127 ] ORDERS a stay of the proceedings instituted in this file against young person X. ________________________________ Mario Gervais, J.C.Q.

Mtre Annie Trudel Criminal and penal prosecutor Mtre Marie-Pierre Blouin For the appellant