R v Kuzyk (C), 2016 MBCA 97

Citation: R v Kuzyk (C), 2016 MBCA 97 Date: 20161003 Docket: AR15-30-08440 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Alan D. MacInnes Mr. Justice William J. Burnett Madam Justice Jennifer A. Pfuetzner BETWEEN : HER MAJESTY THE QUEEN ) S. E. Pinx, Q.C. and ) J. C. Pinx Respondent ) for the Appellant ) - and - ) K. S. J.

Elgert ) for the Respondent ) CHRISTOPHER KUZYK ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) October 3, 2016 On appeal from 2014 MBQB 158 , 308 ManR (2d) 128 PFUETZNER JA (for the Court): [ 1 ] The accused appeals his convictions for possession of cocaine for the purpose of trafficking and possession of proceeds of crime. [ 2 ] A search warrant for the accused’s residence was obtained by a police officer based on information provided to the officer by a confidential informant.

After preparing his information to obtain the warrant, the officer destroyed the notes he had made of his conversation with the informant. [ 3 ] At trial, the accused sought a judicial stay of proceedings under section 24(1) of the Canadian Charter of Rights and Freedoms (the Charter ) on the basis that the actions of the officer breached the accused’s right under

section 7 of the Charter to make full answer and defence. Although she found a breach of the accused’s

section 7 rights, the trial judge did not grant the stay of proceedings and convicted the accused. [ 4 ] Although the accused raises several grounds of appeal, the essential issue is whether the trial judge erred by concluding that this was not one of the “clearest of cases” in which the extraordinary remedy of a judicial stay of proceedings should be granted (at para 12). [ 5 ] Whether or not to grant a judicial stay of proceedings is a discretionary decision.

The standard of review of such a decision was described in R v Forster (HR) et al , 2005 SKCA 107 , 269 SaskR 275 , as follows (at para 13): An appellate court cannot reverse such an order merely because it would have exercised the discretion in a different way. It is justified in intervening in a trial judge’s discretion to grant such a remedy only if the trial judge misdirected herself as to the law or if, in the exercise of her discretion, she gave no weight, or no sufficient weight, to relevant considerations, or where the decision is so clearly wrong as to amount to an injustice.

[6] In determining whether to grant a stay of proceedings, the trial judge correctly applied the test set out in R vO’Connor, (SCC), [1995] 4 SCR 411 (at para 82): [A] stay of proceedings is only appropriate “in the clearest of cases”, where the prejudice to the accused’s right to make full answer anddefence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution werecontinued. [7] The trial judge turned her mind to the deficiencies in the Crown’s case, including the strengths and weaknesses in theofficer’s evidence, and weighed the evidence appropriately.

Given the evidence before the trial judge and the overall context of the case,the trial judge made reasonable findings of fact and credibility that cannot be described as palpable and overriding errors. [8] We are not persuaded that the trial judge made any misapprehensions of fact or law. Nor are we persuaded that herdecision is so clearly wrong as to amount to an injustice. [9] Accordingly, the trial judge’s discretionary decision is entitled to significant deference, and there is no basis forappellate intervention. The appeal is dismissed. JA JA JA