R v Z (MJ), 2022 MBCA 61

Citation: R v Z (MJ), 2022 MBCA 61 Date: 20220705 Docket: AR21-30-09598 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Madam Justice Karen I. Simonsen Madam Justice Lori T. Spivak BETWEEN : HER MAJESTY THE QUEEN ) A. J. Kavanagh ) for the Appellant ) Respondent ) M. A. Bodner ) for the Respondent - and - ) ) Appeal heard: M. J. Z. ) December 8, 2021 ) ) Judgment delivered: (Accused) Appellant ) July 5, 2022 NOTICE OF RESTRICTION ON PUBLICATION : No one may publish, broadcast or transmit any information that could disclose the identity of the victim(

s) or witness(es) (see

section 486.4 of the Criminal Code ). COVID-19 NOTICE: As a result of the COVID-19 pandemic and pursuant to r 37.2 of the MB, Court of Appeal Rules , MR 555/88R , this appeal was heard remotely by videoconference. On appeal from 2020 MBQB 115 simonsen JA [ 1 ] The accused was convicted of several offences related to the historical sexual assaults of three of his husband’s nephews, who were then children (the victims). He appeals the convictions on the sole ground that the trial judge (the judge) erred by dismissing his motion for a stay of proceedings under section 24(1) of the Canadian Charter of Rights and Freedoms (the Charter ) based on an abuse of process constituting a breach of

section 7 . The alleged

section 7 violation arose from the manner in which a police officer conducted an interview of the accused. [ 2 ] The accused asserts that the judge found a

section 7 breach and, alternatively, says that, if she failed to do so, she erred by mischaracterizing the officer’s conduct and determining that no breach had been established; and she erred by failing to conclude that the test for a stay of proceedings, as set out in R v Babos , 2014 SCC 16 , was met. [ 3 ] The Crown maintains that the judge found that there was no

section 7 breach, and that she made no error in that determination or in her conclusion that a stay of proceedings was not an appropriate remedy. [ 4 ] For the reasons that follow, I would conclude that, although the judge did not make an express finding as to whether there had been a

section 7 breach, a finding of no breach is implicit in her reasoning; she made a palpable and overriding error in finding that the officer did not denigrate the accused and his husband (the husband) based on their sexual orientation; and she erred in law by

failing to conclude that there had been a

section 7 violation. [5] Nonetheless, applying the correct law to the facts and, in particular, balancing the officer’s conduct with theseriousness of the charges against the accused, this is not one of the “clearest of cases” (R v O’Connor, (SCC), [1995] 4SCR 411 at para 68; and Babos at para 31) where the exceptional remedy of a stay of proceedings is warranted. [6] Therefore, I would dismiss the appeal.

The Background [7] When the victims came forward to the police, the accused was interviewed twice by Detective Sergeant Elton Hall ofthe Winnipeg Police Service. (By the time he testified, he held the rank of Staff Sergeant.) [8] The first interview occurred on June 15, 2016, following the accused’s arrest in connection with the complaints of twoof the victims, and resulted in the accused making a statement.

The second interview was conducted on July 6, 2016, after a complainthad been made by the third victim. [9] The video recording of the statement made at the first interview was entered into evidence at trial, and the accusedconceded the admissibility of that statement. The accused’s Charter challenge relates only to the second interview, at which nostatement was provided. [10] Between the two interviews, there were a number of developments. Detective Sgt. Hall had contact with the husband atthe police station, on the telephone and at his home, during which the husband was angry and confrontational.

Following the firstinterview, the husband attended at the police station with his and the accused’s three children and angrily challenged the police about theaccused’s arrest. When Det. Sgt. Hall later called the accused to advise him of the further allegations, the husband took the phone andberated the officer, calling him and his partner Nazis. Detective Sgt. Hall was also made aware of the husband having posted publiccomments on Facebook that he thought could be considered threatening or harassing to two of the victims and their families. [11] Detective Sgt.

Hall further learned that the husband had complained about him to professional agencies and named himpublicly on social media. As well, the officer’s online investigation, in particular, of the husband’s public Facebook page, revealed thatthe husband was very prolific, had what the officer characterized as “left wing politics”, and was a social activist for gay rights andagainst child sexual abuse. [12] With respect to the approach adopted by Det. Sgt. Hall in the second interview (the interview), he testified that hediscussed his strategy with his partner, Det. Comte, and his superior, Sgt. Dudek.

They agreed that he would use a tactic that they didnot employ often. He would be very aggressive and would mimic the husband’s behaviour with the accused in an effort to prompt theaccused to speak about the allegations. The interview was approximately 32 minutes in duration and was essentially a monologue byDet. Sgt. Hall directed at the accused, with the accused invoking his right to silence. The interview, again, was video recorded. Theaccused refused to make any comment. [13] The accused moved for a stay of proceedings in relation to all of the charges against him on the basis that Det.

Sgt.Hall’s behaviour in the interview constituted an abuse of process and, thus, a breach of his

section 7 rights, and that continuing theprosecution would undermine public confidence in the integrity of the criminal justice system. [14] The motion for a stay of proceedings was heard together with the evidence at trial on the substantive charges. Thejudge gave comprehensive reasons for decision dismissing the motion for a stay of proceedings (see 2020 MBQB 114) (Z (MJ) #1) andconvicting the accused (see 2020 MBQB 115) (Z (MJ) #2).

She found him guilty of three counts of sexual assault, three counts of sexualinterference and two counts of invitation to sexual touching; the convictions for sexual assault were subsequently judicially stayed on thebasis of the principles in Kienapple v The Queen, (SCC), [1975] 1 SCR 729. [15] In convicting the accused, the judge found that his sexual assaults on two of the victims, who are brothers, started whenthey were four years old and continued for a number of years.

The assaults on the third victim, their cousin, occurred when he wasalmost nine years old. [16] The abuse of the first two victims was repeated. It included the accused touching and rubbing the victims’ penises andhaving them touch his penis. In the case of the first victim, there were repeated instances of the accused having the victim perform oralsex on him and one attempted anal penetration of the victim. As for the third victim, the accused stroked his penis over his clothing ontwo occasions.

The accused’s actions caused significant harm to the mental health of all three victims. [17] On sentencing, the judge applied the principles, set out by the Supreme Court of Canada in R v Friesen, 2020 SCC 9,regarding sentencing for sexual offences against children and imposed a total sentence of 10 years’ imprisonment. The Legal Framework [18] In O’Connor, L’Heureux-Dubé J, writing for the majority, found that the common law principles of abuse of processwere, for the most part, analogous to those in

section 7 (see paras 70-72). She stated, “The principles of fundamental justice [in section7] both reflect and accommodate the nature of the common law doctrine of abuse of process” (at para 71), and concluded that there is “noreal utility in maintaining two distinct analytic regimes” (ibid). She noted that the doctrine of abuse of process can involve aninfringement of an accused’s right to a fair trial protected by

section 7, and that there is also a residual category of Crown conductinvolving abuse of process caught by

section 7 that does not affect the fairness of an individual accused’s trial but, rather, involves stateconduct that undermines the integrity of the judicial system (see para 73). [19] In Babos, Moldaver J, for the majority, addressed the availability of a stay of proceedings for an abuse of process, andconfirmed what had been said in O’Connor, namely, that such a remedy will be warranted only in the “clearest of cases” (at para 31).

Moldaver J also confirmed that abuse of process cases generally fall into the two categories identified in O’Connor : “state conduct [that] compromises the fairness of an accused’s trial (the ‘main’ category); and . . . state conduct [that] creates no threat to trial fairness but risks undermining the integrity of the judicial process (the ‘residual’ category)” ( ibid ). [ 20 ] Moldaver J outlined the test to be applied in determining whether a stay of proceedings is warranted in both categories. It is comprised of three requirements (at para 32): . . .

(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” ( Regan [ R v Regan , 2002 SCC 12 ], at para 54);

(2) There must be no alternative remedy capable of redressing the prejudice; and

(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits” ( ibid. , at para. 57). [ 21 ] With respect to the first step of the test, in the context of the residual category, Moldaver J stated that “the question is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system” (at para 35). [ 22 ] At the second step of the test, “the question is whether any other remedy short of a stay is capable of redressing the prejudice” (at para 39).

Where the residual category is invoked, and the “prejudice complained of is prejudice to the integrity of the justice system, remedies must be directed towards that harm [and] the focus is on whether an alternate remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward” ( ibid ). [ 23 ] Where, after the first two steps of the test have been completed, it is still uncertain as to whether a stay should be granted, the balancing at the third step of the test should be undertaken.

The balancing takes on “added significance” (at para 40) when the residual category is invoked. Moldaver J described the approach to be taken in the balancing (at para 41): . . . Where prejudice to the integrity of the justice system is alleged, the court is asked to decide which of two options better protects the integrity of the system: staying the proceedings, or having a trial despite the impugned conduct. This inquiry necessarily demands balancing.

The court must consider such things as the nature and seriousness of the impugned conduct, whether the conduct is isolated or reflects a systemic and ongoing problem, the circumstances of the accused, the charges he or she faces, and the interests of society in having the charges disposed of on the merits. Clearly, the more egregious the state conduct, the greater the need for the court to dissociate itself from it.

When the conduct in question shocks the community’s conscience and/or offends its sense of fair play and decency, it becomes less likely that society’s interest in a full trial on the merits will prevail in the balancing process. But in residual category cases, balance must always be considered. [footnotes omitted] The Judge’s Decision on the Motion for a Stay of Proceedings [ 24 ] The judge did not specifically address and decide whether there had been a breach of

section 7 in the residual category as was alleged but, instead, went directly to the Babos test. [ 25 ] The accused contends that a finding of a breach is reasonably implied by the judge’s reasons for decision because she focussed on the appropriate remedy. The Crown argues that implicit in the judge’s analysis is a finding that no

section 7 breach occurred, given her determination that the first step of the Babos test had not been met. Furthermore, the Crown says that the fact that the judge found no breach was acknowledged by counsel for the accused during sentencing submissions and confirmed by the judge in her reasons for decision on sentence. I will say more about this later, once I have discussed the applicable legal test for a breach of

section 7 based on abuse of process. [ 26 ] In her reasons for decision, the judge commented that the conduct of the interview was “in dangerous territory” ( Z ( MJ ) #1 at para 25) and could have had the effect of rendering any statement made by the accused inadmissible. The judge agreed with counsel for the accused that the interview was a “rant” (at para 13), and found that it was delivered in a tone and manner that was “angry and aggressive throughout” (at para 11). She summarized some of the comments made by Det. Sgt. Hall during the interview that were relied upon by the accused in support of his application for a stay of proceedings (at para 12):

. . . • referring to [the husband] as “a fucking lunatic” and “a fucking sociopath”; • telling the accused that he will do everything he can to have the accused’s three children removed from their home by Child and Family Services; • disparaging the accused’s and [his husband’s] “left-wing opinions”, calling the accused “out to fucking lunch”; • calling the accused “a fucking coward”; • alleging that [the husband] is abusive to the accused saying “he fucking uses you, he treats you like a bitch. I can tell by his personality. I can tell by the way he acts.

You’re his bitch, you do what he says and when he says it”; • alluding to violent retaliation by the complainants or their family members, such as: “you are so fortunate that that father didn’t come down and take care of you.

I know if that was my kid you wouldn’t be sitting here right now....” and, with reference to the complainants who are now adults, “I hope they knock your fucking block off”; • belittling the accused’s own experience of, and recovery from, sexual abuse referring to the accused as “a professional victim” and telling him that he has not been “cured” and he is not “fixable”; • denigrating his legal counsel by referring to the accused’s “slimeball lawyer”; and • suggesting to the accused that he will enjoy jail: “I would say enjoy jail, but you probably will.” [ 27 ] The judge also found that Det. Sgt.

Hall’s language was “offensive and profane” (at para 31); his insults and verbal attacks on the accused and his husband were “extremely rude”; and the officer had “denigrated the . . . expressed political views” of the accused and his husband, and “belittled the accused’s experience of, and recovery from, sexual abuse” ( ibid ). [ 28 ] The judge recognized that a denigration of an individual’s personal characteristics, including sexual orientation, “would be inconsistent with fundamental values of our society, including respect for equality and human dignity” (at para 27). However, she accepted Det. Sgt.

Hall’s evidence that he had not criticized the accused and his husband for their gay rights activism or attacked them based on their status as a gay couple. She also inferred from a number of statements made by the officer during the interview (including some of the comments listed at para 38 herein) that he had not been critical of the accused and his husband based on their gay rights activism or them as a gay couple. [ 29 ] As for Det. Sgt.

Hall’s comment, “I would say enjoy jail, but you probably will”, made at the conclusion of the interview, the judge noted that the officer had denied that this comment contained any sexual innuendo, but that he had acknowledged that, as an experienced police officer, he had heard people talk about going to jail and being sexually assaulted. The judge found that Det. Sgt. Hall had made the comment “somewhat inexplicably” (at para 31), that the words used were rather ambiguous and that, in the absence of evidence, “a particular

interpretation of that comment as a sexual innuendo, is not within the proper scope of judicial notice” ( ibid ). She went on to say that, even if Det. Sgt.

Hall’s comment was interpreted by the accused, or intended by the officer, to contain a sexual innuendo, that would not change her conclusion ( ibid ). [ 30 ] Having made these findings, the judge concluded that none of the three steps in Babos had been met. [ 31 ] Regarding the first step of that test, she stated (at para 32): In my view, the Officer’s conduct of the interrogation, rife as it was with insults and profanity, was inappropriate in the circumstances.

However, I have concluded that [the officer’s conduct] was not so troublesome that society would take umbrage at the carrying forward of the prosecution. Interrogations of suspects may sometimes require the use of language and tone that many would find impolite or offensive. Such interrogation tactics do not necessarily offend society’s sense of fair play and decency. Proceeding with the case would not do further harm to the integrity of the justice system.

[ 32 ] The judge then considered step two regarding alternative remedies, pointing to the complaints that had been made to both the Law Enforcement Review Agency (the LERA) and the Manitoba Human Rights Commission (the MHRC). She observed that “ remedies sought through those avenues include prospective measures such as training for police officers to avoid similar interrogation techniques in the future” (at para 33).

She concluded that the second step had not been met. [ 33 ] Finally, the judge undertook the balancing in step three and found that society’s strong interest in having the serious allegations of sexual assault against three young children decided on their merits outweighed the court’s interest in dissociating itself from the police conduct. She stated (at para 34) : . . . The Officer’s conduct was offensive and verbally aggressive but did not include physical violence or harm, unlawful deprivation of liberty, or dishonest conduct.

Even if the police conduct in this case did offend society’s sense of fair play and decency, on balance a stay of proceedings would not be warranted. The Standard of Review [ 34 ] This Court, in R v Richard (DR) et al , 2013 MBCA 105 , summarized the standard of review for Charter determinations (at para 48): The standard of review to be applied to a Charter finding where the accused is appealing a conviction was considered by this court in R. v. Farrah (D.) , 2011 MBCA 49 , 268 Man.R. (2d) 112.

In that case, Chartier J.A. (as he then was) reviewed the several steps and related standards of appellate review of a trial judge’s determination of a Charter issue. First, the court reviews the decision to ensure that the correct legal principles were stated and that there was no misdirection in their application. The standard of review is correctness. Next, the evidentiary foundation forming the basis of the judge’s decision is reviewed to see if there was an error. At this stage, deference is applied and, absent palpable and overriding error, the facts as found by the judge should not be disturbed.

The appellate court then examines the application of the legal principles to the facts of the case to see if the facts, as found by the judge, satisfy the legal test. In criminal law, the standard at this stage is correctness. See also R v Farrah (D) , 2011 MBCA 49 at para 7 . [ 35 ] All findings of fact are reviewed on the standard of palpable and overriding error. As stated in HL v Canada (Attorney General) , 2005 SCC 25 (at para 53 ): . . . In recent years, the phrase “palpable and overriding error” resonates throughout the cases.

Its application to all findings of fact — findings as to “what happened” — has been universally recognized; its applicability has not been made to depend on whether the trial judge’s disputed determination relates to credibility, to “primary” facts, to “inferred” facts or to global assessments of the evidence.

The standard of review of palpable and overriding error applies “not only to findings of fact, but to the characterization of police conduct” ( R v Moyles, 2019 SKCA 72 at para 61 ). [ 36 ] As for the judge’s decision not to grant a stay of proceedings, it is well established that a trial judge’s order under section 24(1) of the Charter should be disturbed on appeal only if the trial judge misdirects themselves or if their decision is so clearly wrong as to amount to an injustice ( see R v Bellusci , 2012 SCC 44 at para 17 ; and Babos at para 48 ).

Analysis and Decision Denigration Based on Sexual Orientation [ 37 ] As noted earlier, I am satisfied that the judge made a palpable error in finding that Det. Sgt. Hall did not criticize the accused and his husband based on their sexual orientation; this includes her failure to find that the officer’s concluding comment contained any sexual innuendo. The evidence to the contrary was considerable — and, with respect, common sense inferences could have readily been drawn without resort to judicial notice. [ 38 ] Detective Sgt.

Hall’s concluding comments, at the very end of the interview, were, “You fucking sicken me, I’m done with this. Don’t even have the balls to apologize. Classic. I would say enjoy jail, but you probably will.” He provided no explanation for these remarks, except to say, “I wasn’t referencing anything, I just made a comment.” That explanation is clearly not meaningful or credible, particularly when considered in the context of other statements that he made in the course of the interview.

Direct or oblique, and mostly disparaging, references made by the officer to the sexual orientation of the accused and his husband were:

(1) When referring to the husband bringing the children to the police station and having one of them video-record the attendance, the officer said:

. . . . . . What is wrong with you fucking people? And just so you know by “fucking people”, I mean you and [the husband], it has nothing to do with your sexual preference as adults, so don’t get that in your mind. I have a lot of gay friends, just like [the husband] pointed out on social media. . . .

(2) When speaking of the mother of one of the victims calling the husband to put forward the allegations against the accused, and describing the husband’s response, the officer said: . . . . . . “Well, there’s no way. We’re a gay couple, this couldn’t have happened. No, there’s no way. I was always at home.” Same excuse, “I was always home when [the accused] was here.” . . . . . .

(3) When speaking of the accused’s earlier sexual offender treatment that he had undertaken when the mother of one of the victims confronted him before calling the police, the officer said: . . . . . . [You] go do your little retreat out in Ontario, have fun, you’re cured because that’s what happens to every sexual offender they get cured. “I’m cured. A month ago I wanted to jerk off six year olds and I enjoyed it. No, I’m cured now, I like grown men instead.” . . . . . .

(4) When referring to the husband, the officer said, “[H]e treats you like a bitch . . . You’re his bitch.”

(5) When explaining that he had called the accused to ask that he come to the police station and the accused had put the husband on the phone, the officer said that was “because [he was] too much of a fucking coward and a pussy to talk to [him].”

(6) After asking the accused about apologizing for what he had done to the third victim, the officer said, “It’s pretty damning. Like that’s pretty fucked up on your end. But you are the stereotypical, fucking, liberal bitch that lives in this country.” [ 39 ] In my view, these statements, considered in their entirety, lead to the conclusion that the judge made a palpable error in accepting the officer’s testimony as to the characterization of his remarks, and in drawing an inference that his comments did not denigrate the accused based on his sexual orientation.

The interview was rife with inappropriate sexual innuendo and disparagement based on sexual orientation. The judge made a palpable error to find otherwise. [ 40 ] As I will explain, the judge’s palpable error was overriding on the question of whether a

section 7 breach was established, but not on the issue of whether a stay of proceedings was called for.

Section 7 [ 41 ] An analysis as to whether the judge erred with respect to

section 7 starts with a consideration of the correct legal test for a breach. [ 42 ] Despite apparent conflation in some authorities of the test for a

section 7 breach based on abuse of process in the residual category and the first step of the Babos test, I am of the view that the two are different . The first step in Babos incorporates the concept of a breach, but also sets out additional criteria to be met to justify the remedy of a stay of proceedings.

Section 7 Breach Based on Abuse of Process in the Residual Category/The First Step of Babos [ 43 ] Historically, under the common law, a stay of proceedings was the remedy for an abuse of process. Perhaps due to this history, the tests for abuse of process and a stay of proceedings have not always been differentiated.

When it became clear that remedies besides a stay of proceedings could be ordered for an abuse of process, early commentators urged that the tests for abuse of process and stays of proceedings be uncoupled (see, for example, David M Paciocco, “The Stay of Proceedings as a Remedy in Criminal Cases: Abusing the Abuse of Process Concept” (1991) 15 Crim LJ 315; and Lee Stuesser, “Abuse of Process: The Need to Reconsider” (1994) 29 CR (4 th ) 92 ).

[44] On this issue, a useful starting point is O’Connor. L’Heureux Dubé J, drawing on Dickson CJC’s test for abuse ofprocess as set out in R v Jewitt, (SCC), [1985] 2 SCR 128, defined the “residual” category of abuse of process casesunder

section 7 of the Charter (at para 73): . . .

This residual category does not relate to conduct affecting the fairness of the trial or impairing other procedural rights enumerated inthe Charter, but instead addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution isconducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justiceand thus undermines the integrity of the judicial process. [emphasis added] See also the dissent in R v Curragh Inc, (SCC), [1997] 1 SCR 537 at para 118. [45] O’Connor further indicated that two separate analyses had to be untaken with respect to a determination of an abuse ofprocess constituting a breach of

section 7 and a stay of proceedings as a remedy. L’Heureux Dubé J stated that, “even if a violation of s.7 is proved on a balance of probabilities, the court must still determine what remedy is just and appropriate under s. 24(1)” (at para 68).

She also observed that “[r]emedies less drastic than a stay of proceedings are of course available under s. 24(1) in situations where the‘clearest of cases’ threshold is not met but where it is proved, on a balance of probabilities, that s. 7 has been violated” (at para 69). [46] It is also notable that, in R v Regan, 2002 SCC 12, a majority of the Supreme Court of Canada stated that a stay ofproceedings would be available when “the prejudice caused by the abuse in question will be manifested, perpetuated or aggravatedthrough the conduct of the trial, or by its outcome” (at para 54) (emphasis added).

The majority also observed that whether theimpugned conduct amounted to an abuse of process and whether a stay was therefore warranted were two separate questions (see paras 2,48; see also R v Nixon, 2011 SCC 34). [47] Cases from provincial appellate courts, including this Court’s decision in R v Johnston, 2018 MBCA 8 (which referredto an abuse of process as conduct that “was offensive to societal notions of fair play and decency” at para 43), have focussed onO’Connor as providing the framework for assessing whether an abuse of process in the residual category has occurred (see R v Cece(2004), (ON CA), 189 CCC (3d) 294 at para 17 (Ont CA); R v MT, 2013 ONCA 476 at para 76; R v Gibbons, 2015ONCA 47 at para 7; R v AK, 2016 NLCA 23 at paras 58-59; R v Hunt, 2016 NLCA 61 at para 80; and R v Villanti, 2020 ONCA 436 atpara 45). [48] However, some comments in Babos about the first step of the test for a stay of proceedings may, at first blush, appearto conflate the test for an abuse of process in the residual category with the first step of the test for a stay (at para 35): . . . [W]hen the residual category is invoked, the question is whether the state has engaged in conduct that is offensive to societal notionsof fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justicesystem.

To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution of offences. At times,state conduct will be so troublesome that having a trial — even a fair one — will leave the impression that the justice system condonesconduct that offends society’s sense of fair play and decency. This harms the integrity of the justice system.

In these kinds of cases, thefirst stage of the test is met. [49] As well, since (and before) Babos, there has been no shortage of cases where courts seem to have blended the test for anabuse of process with a determination as to the availability of a stay of proceedings.

For example, in R v Bacon, 2020 BCCA 140, theCourt stated, in the context of a residual category case, that “[t]he first stage of Babos requires the judge to determine whether theimpugned conduct amounts to an abuse of process” (at para 44; see also R v Potvin, (SCC), [1993] 2 SCR 880 at 915-16; R v Power, (SCC), [1994] 1 SCR 601 at 615; R v Plummer, 2018 BCCA 302 at para 26 (in Chambers); and AdrienIafrate, “Unleashing the Paper Tiger: How the Abuse of Process Doctrine Can Overcome Charter Limitations” (2017) 64 Crim LQ 147,Part 1). [50] That being said, in my view, a careful review of Babos indicates that the tests are, in fact, separate.

In Babos, MoldaverJ, referencing Regan, described the first step of the test for a stay of proceedings, in relation to the residual category, as requiringprejudice to the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or byits outcome” (at para 32). These words reflect what earlier authorities said about the purpose of a stay of proceedings.

A stay ofproceedings is a prospective remedy that does not merely address a past wrong but, rather, “aims to prevent the perpetuation of a wrongthat, if left alone, will continue to trouble the parties and the community as a whole, in the future” (Regan at para 54).

In a residualcategory case, the focus should be on further harm to the integrity of the justice system, directed at “prospective prejudice” (R vZarinchang, 2010 ONCA 286 at para 57; see also Canada (Minister of Citizenship and Immigration v Tobiass, (SCC),[1997] 3 SCR 391 (Tobias)). [51] Moldaver J recognized this in Babos when he quoted Tobiass at para 91 (at para 36):

In Canada (Minister of Citizenship and Immigration) v. Tobiass, (SCC), [1997] 3 S.C.R. 391, this Court described theresidual category in the following way: For a stay of proceedings to be appropriate in a case falling into the residual category, it must appear that the state misconduct is likely tocontinue in the future or that the carrying forward of the prosecution will offend society’s sense of justice.

Ordinarily, the latter conditionwill not be met unless the former is as well — society will not take umbrage at the carrying forward of a prosecution unless it is likelythat some form of misconduct will continue. There may be exceptional cases in which the past misconduct is so egregious that the merefact of going forward in the light of it will be offensive.

But such cases should be relatively very rare. . . . [52] Moldaver J continued (at para 38): . . . [I]n a residual category case, regardless of the type of conduct complained of, the question to be answered at the first stage of the testis the same: whether proceeding in light of the impugned conduct would do further harm to the integrity of the justice system. While Ido not question the distinction between ongoing and past misconduct, it does not completely resolve the question of whether carrying onwith a trial occasions further harm to the justice system.

The court must still consider whether proceeding would lend judicialcondonation to the impugned conduct. [53] Several post-Babos cases confirm that the first part of the Babos test requires a separate consideration of prospectiveprejudice. [54] In R v Gowdy, 2016 ONCA 989, the Court, when discussing the first step of the Babos test, said that it requires “furtherharm to the integrity of the justice system” (at para 60); “state misconduct [that] is likely to continue into the future, or that pursuit of theprosecution will offend society’s sense of justice” (at para 63); and a determination that “the infringement caused prejudice to theintegrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of even a fair trial or its outcomebecause the [state] conduct at issue is so offensive to societal notions of fair play and decency”(at para 69). [55] Although a case involving entrapment, Beveridge JA, in R v Derbyshire, 2016 NSCA 67, leave to appeal to SCCrefused, 37337 (30 March 2017), faulted the Crown for failing “to keep separate the traditional remedy for conduct found to beabusive⸺a stay of proceedings⸺from the ability of a trial judge to find abuse” (at para 80; see also Auclair c R, 2016 QCCA 1361 atparas 11-14). [56] In R v Howley, 2021 ONCA 386, the Court said that an abuse of process in the residual category “risks undermining theintegrity of the judicial process” and that, “[i]n the most drastic cases, an abuse of process may justify a stay of proceedings” (at para51).

For a stay, there must be prejudice that will be “manifested, perpetuated, or aggravated through the conduct of the trial, or by itsoutcome” (ibid). [57] Logically, a distinction between the tests for abuse of process and a stay of proceedings makes sense. One should notbegin to inquire about whether a Charter remedy should be granted until it has been established that a Charter right has been breached. The Court’s remedial jurisdiction under section 24(1) is only engaged once a person’s Charter rights have been infringed. It is alsoimportant to separate these two inquiries because the standard of proof for a

section 7 violation is the balance of probabilities (seeO’Connor at para 68), whereas a stay of proceedings is only available in the clearest of cases. [58] To summarize, the test for abuse of process in the residual category, as articulated in O’Connor, requires that aprosecution be conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamentalnotions of justice and thus undermines the integrity of the judicial process.

The first step of the Babos test goes further to addressprospective considerations, in that there must be an abuse that causes prejudice to the integrity of the justice system which “will bemanifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” (Babos at para 32). [59] In this case, it is understandable that the judge did not address the question of a

section 7 breach separately from thefirst step in Babos. That is the way oral arguments were presented. Further, the only remedy sought was a stay, such that addressing theBabos test was the key to the determination she was asked to make. However, despite the fact that the first step of Babos incorporatesthe essential requirement of the test for a breach (prejudice to the integrity of the justice system), the two tests are distinct. Thus, thejudge should have identified and applied the legal test for determining whether there had been a breach, before proceeding to aconsideration of Babos and whether a stay of proceedings was warranted. Application of the Test for a

Section 7 Breach [60] Reading the judge’s reasons in the context of the correct legal test for a breach of

section 7 based on abuse of process inthe residual category, I am satisfied that, despite her not specifically addressing the issue, she implicitly found that there was no suchinfringement. As I have explained, this conclusion does not necessarily follow from her determination that the first step in Babos had notbeen established.

Rather, it is based on the whole of her analysis. [61] In the judge’s reasons regarding the first step of the Babos test, she commented that police interrogations that “manywould find impolite or offensive . . . do not necessarily offend society’s sense of fair play and decency” (at para 32). Furthermore, inconnection with the third step of the Babos test, she stated, “Even if the police conduct in this case did offend society’s sense of fair playand decency”(at para 34)—suggesting that she had not reached such a conclusion, which is central to a finding of a

section 7 breach

grounded in abuse of process. [62] Moreover, during sentencing submissions, counsel for the accused conceded that “there is no relief because the Charterbreach hasn’t been found”. Reflecting this comment, the judge, in her reasons for decision on sentence, stated: . . . . . .

As defence counsel properly conceded at the sentencing hearing, in the absence of a Charter breach, [the accused] is not entitled to areduction in sentence as a Charter remedy. . . . (The judge went on to recognize that, even in the absence of a breach, it was open to her to consider the officer’s conduct a mitigatingfactor that would warrant a reduction in sentence, but she declined to do so.) [63] The accused further argues that, if the judge found no breach, she mischaracterized the evidence, in that she did notappreciate the seriousness of the officer’s verbal attack, which led her to erroneously conclude that the legal standard for a breach hadnot been met.

While the accused contends that the judge failed to adequately consider the effect of the officer’s words on him, he doesnot go so far as to assert that she erred by not finding an infringement of

section 7 on the basis of a violation of the security of the personwhich protects the psychological integrity of an individual (see New Brunswick (Minister of Health and Community Services) v G (J), (SCC), [1999] 3 SCR 46 at para 60; R v Donnelly, 2016 ONCA 988; and Gowdy). Instead, the allegation is that therewas a breach of

section 7 based on an abuse of process in the residual category. [64] As noted in R v Singh, 2007 SCC 48, “The importance of police questioning in the fulfilment of their investigative rolecannot be doubted” (at para 28). As recognized by the judge, “the investigation of crime and the detection of criminals is not a game tobe governed by the Marquess of Queens-bury rules” (Rothman v The Queen, (SCC), [1981] 1 SCR 640 at 697). Thejurisprudence undoubtedly allows a police interrogation to be tough and aggressive. Nonetheless, in my view, the approach taken hereexceeded permissible boundaries.

Applying the correct legal test to the interview, I would find that it was conducted in such a manner asto be an abuse of process constituting a

section 7 breach. [65] To begin with, the officer denigrated the accused and his husband based on their sexual orientation. In addition, theofficer’s conduct included wilful abuse and name-calling of the accused and his husband; implied threats to remove the accused’schildren; disparagement of the accused’s lawyer; belittling of the accused’s experience of, and recovery from, sexual abuse; and alludingto violent retaliation by the victims or their family members. The language and tone of the interview were more than offensive, profaneand extremely rude. They were threatening, abusive and wholly unacceptable.

Taken in its entirety, the interview contravenedfundamental notions of justice and thus undermined the integrity of the judicial process⸺and, as such, infringed the accused`s section7 rights. Stay of Proceedings [66] Having determined that a

section 7 breach has been proven, I turn to a consideration of the remedy. [67] Regarding the appropriateness of a stay of proceedings, the accused points to two cases where stays were granted,United States of America v Cobb, 2001 SCC 19 (Cobb); and Bellusci. [68] In Cobb, the United States sought the extradition of the appellants on charges of fraud and conspiracy to commit fraud. The appellants contested the extradition on the basis of a

section 7 breach arising from statements made by the American judge andprosecuting attorney. When the assigned judge was sentencing a co-conspirator, he commented that those fugitives who did notcooperate, if found guilty, would get the “absolute maximum jail sentence that the law permit[ed] [him] to give” (at para 7) (emphasisomitted). The prosecuting attorney hinted during a television interview that uncooperative fugitives would be subject to homosexualrape in prison. The Supreme Court of Canada concluded that

section 7 was engaged in extradition proceedings, and that a stay ofproceedings was justified based on either a

section 7 breach or a common law abuse of process (see para 40). [69] In Bellusci, a trial judge found an accused guilty of intimidation of a justice official for uttering threats to a prisonguard, but ordered a stay of proceedings due to a violation of his

section 7 rights. The prison guard had verbally attacked Bellusci andendangered him by disclosing to other prisoners that he was a rapist. This provoked Bellusci’s threats, and, in response, the guard“grievously assaulted him while he was chained, shackled, handcuffed and defenceless” (at para 5 (emphasis omitted); see also para15). The Court of Appeal set aside the stay, finding that such an extreme remedy was not warranted.

The Supreme Court agreed withthe Court of Appeal that other remedies may have been sufficient but concluded that, absent an error of law or reviewable findings offact, the trial judge’s decision was owed deference (see para 30). [70] More generally, the case law reveals a reluctance on the part of courts to grant stays of proceedings. [71] In many of the cases where a stay of proceedings has been granted based on a breach of

section 7 resulting from policeconduct that constituted an abuse of process in the residual category, there has been unjustified physical violence used by the police,often together with other misconduct (see R v Drury et al, 2004 BCPC 188—involving a strip search; R v Tran, 2010 ONCA 471;

R v Y(X) , 2011 ONCA 259 — an accused was assaulted in detention as a result of the conduct of a police officer and then a prosecutor in violation of informer privilege; R v Singh , 2013 ONCA 750 ; and R v Kim , 2017 ONSC 5034 ). [ 72 ] Cases involving serious police misconduct, which did not result in a stay of proceedings, include: • R v Haevischer , 2014 BCSC 2172 — during an investigation, police officers engaged in exploitative sexual relationships with protected female witnesses, endangered their safety by revealing protected information about them to others, lied to their superiors, and manipulated overtime and expense claims to cover up their conduct.

In addition, the two accused endured very difficult conditions of confinement over 14 months. The Court held that, even assuming the facts alleged by the accused to be true, taking their case on a motion for stay of proceedings at its highest and assuming that the first and second steps of Babos had been met, balancing would weigh in favour of not granting a stay (see paras 133, 136, 153).

The Court noted that the officers had been suspended from the RCMP and criminally charged (see para 132) and that the crimes of which the two accused had been found guilty — six counts of first degree murder and one count of conspiracy to commit murder — were horrific ( see also Bacon ). • Derbyshire — the police engaged in “unfair coercion” (at para 59) in seeking information about the primary target of their investigation.

Two undercover officers pretended to be members of a fictitious criminal organization, and approached Derbyshire, intending to create an intimidating and threatening environment for her, and they did. Her incentive for giving them information was the fear of repercussions if she did not do so. As a consequence of the information she provided to them, she was charged with accessory after the fact to murder (see para 5).

The Court of Appeal upheld the trial judge’s decision which found an abuse of process, but declined to grant a stay of proceedings and, instead, ordered exclusion of the statement that had been given to the undercover officers as well as the physical evidence and its locations that had been identified (see paras 67, 162). • R v MacDonald , 2018 BCPC 135 — a police officer was assumed to have stolen from an accused’s residence while conducting a search.

The Court found that, despite “serious misconduct” (at para 37), there was “no evidence that carrying forward with this case [would] manifest, perpetuate or aggravate any abuse” (at para 27). The Court also found that the second and third steps in the Babos test had not been met, and dismissed the application for a stay of proceedings of eight serious charges alleging possession of illegal drugs for trafficking. [ 73 ] A case somewhat more factually similar to the one at bar is R v McCrea , 2004 BCCA 229 .

Following McCrea’s arrest for armed robbery, he was interviewed by a police officer who acted in a menacing fashion (see para 11), striking a wall behind his head and levelling significant, profane verbal abuse at him. The Court of Appeal described the officer’s barrage as “insulting, profane and vulgar” (at para 7).

In overturning the trial judge’s decision to grant a stay of proceedings, the Court held that, although the “officer’s behaviour was below standard and did not reflect the composure or judgment expected from him” (at para 11), the trial judge had given “inordinate consideration to the disciplinary influence of a stay upon the comportment of police officers and insufficient consideration” to the criteria for a stay (at para 18).

The Court concluded that none of the three steps to be met for a stay were established and, with respect to the balancing at the third step, noted that “the administration of justice in the community would be brought into disrepute by a stay of proceedings as a result of this incident” (at para 26). [ 74 ] Returning to the present case and the first step of the Babos test, I am of the view that, when the whole of the interview is considered, it was an improper verbal assault from which this Court must clearly dissociate itself—particularly when the strategy was planned by Det. Sgt.

Hall, together with his partner and his superior. As well, Det. Sgt. Hall’s evidence that they did not employ this strategy “often” indicates that this was not a one-time scenario. During his testimony, Det. Sgt.

Hall also would not acknowledge that he had inadvertently crossed the line with any of his attempts to get the accused to speak — which suggests that he would have little difficulty adopting the same approach again. [ 75 ] In these circumstances, I am satisfied that, given the police misconduct, prejudice to the integrity of the justice system “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” (at para 32). Proceeding with the prosecution in light of the egregious conduct of Det. Sgt.

Hall, which is likely to continue, would do further harm to the integrity of the justice system.

The first step of the Babos test is met. [ 76 ] As for the second step of the test, the accused argues that the complaints he made to the LERA and the MHRC are not adequate alternative remedies because they do “not remove the stain of impropriety” or “protect this from happening again, and again”, and are not capable of redressing the prejudice to the justice system. [ 77 ] The Crown contends that systemic issues could be addressed by the LERA and the MHRC, and that, on an individual level, The Law Enforcement Review Act , CCSM c L75 (the Act ) provides commissioners (and Provincial Court judges who review commissioner decisions) with the power to terminate an officer’s employment for “oppressive or abusive conduct or language” (the Act at

section 29 (a)(iii); see also sections 13(2) , 30(1) (

a) and 33 ). In addition, the accused testified that he hoped to eventually launch a civil action regarding his treatment during the interview. [ 78 ] I note that there has been no adjudication in connection with either the MHRC or the LERA complaint. At the hearing of the appeal, counsel for the accused advised that the LERA matter has been placed in abeyance pending this Court’s decision.

At this stage, almost six years after the interview, no remedy has been granted by any tribunal nor is it apparent when that will occur. [ 79 ] As well, as I will later explain, I am of the view that this is not an appropriate case in which to grant the alternate remedy of a sentence reduction. [ 80 ] I now turn to the third step of the Babos test, as the balancing is critical to determining whether a stay of proceedings is justified in an abuse of process case in the residual category.

The Ontario Court of Appeal, in Zarinchang (cited by Moldaver J in Babos at para 43 ), observed that balancing is particularly important where the residual category is in issue because (at para 60): . . .In some sense, an accused who is granted a stay under the residual category realizes a windfall. Thus, it is important to consider if

the price of the stay of a charge against a particular accused is worth the gain. Does the advantage of staying the charges against this accused outweigh the interest in having the case decided on the merits? In answering that question, a court will almost inevitably have to engage in the type of balancing exercise that is referred to in the third criterion. . . . [ 81 ] A lthough Det. Sgt. Hall’s conduct was demeaning and deliberate, t he charges faced by the accused, involving the repeated sexual assault of three children to whom he was related, were very serious.

His offending continued for years and included major sexual assaults. In Friesen , the Supreme Court of Canada, in the context of sentencing, sent a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families and communities. [ 82 ] The seriousness of the charges and society’s interests in seeing justice done are the factors that weigh most heavily in the balance in this case.

When the state misconduct is weighed against society’s interest in entering the convictions, this is not, in my view, one of the “clearest of cases” ( O’Connor at para 68) where the exceptional remedy of a stay of proceedings is warranted. [ 83 ] With respect to the alternate remedy of a reduced sentence, the accused abandoned his sentence appeal well in advance of the appeal hearing. What he wanted was a stay of proceedings. The panel nonetheless raised whether a sentence reduction was an available and appropriate remedy under section 24(1) .

In response, counsel made brief oral submissions on the issue, with the only authority referenced being R v Nasogaluak , 2010 SCC 6 , but did not pursue it. [ 84 ] Nasogaluak is the leading case and dealt with an appeal from a sentence reduction granted in response to a Charter breach. LeBel J, writing for the Court, encouraged judges to take Charter breaches and other state misconduct into account under the usual sentencing framework, without recourse to section 24(1) . He described a “general rule” that “the proper

interpretation and application of the sentencing process will allow courts to effectively address most of the situations where Charter breaches are alleged” (at para 64), but did acknowledge that there may be exceptions to this general rule and that, in some exceptional cases, “sentence reduction outside statutory limits, under section 24(1) of the Charter , may be the sole effective remedy for some particularly egregious form of misconduct by state agents in relation to the offence and to the offender” ( ibid ).

As observed by Professor Hogg, “The implication of [ Nasogaluak ], never clearly spelled out, is that s. 24(1) is a remedy of last resort, to be invoked only where a Charter breach cannot be remedied by the application of the general law” (Peter W Hogg & Wade K Wright, Constitutional Law of Canada, 5th ed Supp (Toronto: Carswell, 2021) (loose – leaf updated 2021, release 1) at

section 40:22). [ 85 ] Because there is no sentence appeal, this Court cannot assess the application of the general principles of sentencing in sections 718 to 718.2 of the Criminal Code in light of the facts that underlie the

section 7 Charter breach. As for a sentence reduction as a remedy under section 24(1) , I have real difficulty treating this situation, where the accused deliberately abandoned his sentence appeal, was focussed on a stay of proceedings, and only addressed the question of a possible sentence reduction very briefly when asked by this Court, as an exception to the “general rule” described in Nasogaluak (at para 64 ) . Conclusion [ 86 ] In

summary, Det. Sgt. Hall’s conduct was a serious departure from the expected standard and undermined the integrity of the justice system, constituting a

section 7 breach. While the exceptional remedy of a stay of proceedings is not warranted, this strong rebuke dissociates the justice system from the officer’s actions and, importantly, makes clear that the police cannot conduct an interview in the manner that was undertaken here. [ 87 ] For the foregoing reasons, I would dismiss the appeal. JA I agree: JA I agree: JA