SUPREME
COURT OF CANADA
Between:
Riccardo
Bellusci
Appellant
and
Her
Majesty The Queen
Respondent
-
and -
Attorney
General of Ontario
Intervener
Coram: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Moldaver
and Karakatsanis JJ.
|
Reasons
for Judgment:
(paras. 1 to 47)
|
Fish J. (McLachlin C.J. and LeBel,
Deschamps, Abella, Moldaver and Karakatsanis JJ. concurring)
|
R. v. Bellusci, 2012 SCC 44, [2012] 2 S.C.R. 509
Riccardo
Bellusci Appellant
v.
Her Majesty
The Queen Respondent
and
Attorney
General of Ontario Intervener
Indexed as: R. v. Bellusci
2012 SCC 44
File No.: 34054.
2012: February 16; 2012: August 3.
Present: McLachlin C.J. and LeBel, Deschamps, Fish, Abella,
Moldaver and Karakatsanis JJ.
on appeal from the court of appeal for quebec
Constitutional law — Charter of
Rights — Remedy — Stay of proceedings — Accused prisoner and prison guard both
suffering injuries as a result of altercation — Accused charged with assault
and intimidation of a justice system participant — Trial judge acquitting
accused of assault charges and staying charge of intimidation of a justice
system participant on ground that his s. 7 Charter rights had been
breached — Whether stay of proceedings was a proper remedy — Canadian Charter
of Rights and Freedoms, s. 24(1) .
Criminal law — Appeals —
Powers of Court of Appeal — Court of Appeal overturning stay of proceedings
entered by trial judge and remitting matter back to trial court for
continuation of trial — Whether Court of Appeal erred in interfering with trial
judge’s decision to grant stay — Whether Court of Appeal has power to order
continuation of trial — Criminal Code, R.S.C. 1985, c. C‑46, s. 686(4) ,
(8) .
B, a prisoner, was charged with
assault causing bodily harm, assault of a peace officer and intimidating a
justice system participant following an altercation with A, a prison guard,
during which both men suffered injuries. The trial judge acquitted B of both
charges of assault and entered a stay of proceedings on the charge of
intimidating a justice system participant on the ground that B’s rights under
s. 7 of the Charter had been violated. The Court of Appeal quashed
the stay and remitted the matter to the trial court for continuation of B’s
trial.
Held: The appeal should be
allowed and the stay of proceedings entered by the trial judge should be
restored.
Section 24(1) of the Charter
vests in trial judges broad discretion in granting “such remedy as the
court considers appropriate and just in the circumstances”. It is well
established that remedies granted by trial judges under s. 24(1) should be
disturbed on appeal only where trial judges misdirect themselves or their decision
is so clearly wrong as to amount to an injustice. Absent an error of law or
reviewable finding of fact, appellate courts must defer to the broad discretion
vested in trial judges by s. 24(1) of the Charter .
The trial judge in this case
carefully and correctly considered all the relevant principles. He assessed
the gravity of the prejudice and explained why he thought alternative remedies
were inadequate. He did not misdirect himself on the applicable law or commit a
reviewable error of fact. His exercise of discretion to grant a stay of
proceedings was not so clearly wrong as to amount to an injustice. It is clear
from his analysis that he felt that the Charter breach in issue here
fell within the “residual” and “exceptional” category of cases where the
misconduct was so egregious that the mere fact of going forward in the light of
it will be offensive. Having found that B had been provoked and subjected by a
state actor to intolerable physical and psychological abuse, it was open to the
trial judge to stay the proceedings against him. Appellate intervention in
these circumstances was therefore unwarranted.
A court of appeal, upon setting
aside a stay of proceedings, may in appropriate circumstances remit the matter
to the trial court for continuation of the trial, pursuant to ss. 686(4)
and 686(8) of the Criminal Code . In allowing an appeal and setting
aside an acquittal or a stay of proceedings, the court exercises a power under
s. 686(4) . An appellate court need not order a new trial or enter a
verdict of guilty in order to trigger the application of s. 686(8) , which
depends only on the exercise of any of the powers conferred by s. 686(4) .
Cases Cited
Referred to: R. v.
Regan, 2002 SCC 12, [2002] 1 S.C.R. 297; Canada (Minister of Citizenship
and Immigration) v. Tobiass, [1997] 3 S.C.R. 391; R. v. Bjelland, 2009
SCC 38, [2009] 2 S.C.R. 651; R. v. Walcott (2008), 57 C.R. (6th) 223; R.
v. Maskell, 2011 ABPC 176, 512 A.R. 372; R. v. Jackson, 2011 ONCJ
228, 235 C.R.R. (2d) 289; R. v. Mohmedi, 2009 ONCJ 533, 72 C.R. (6th)
345; R. v. J.W., 2006 ABPC 216, 398 A.R. 374; R. v. R.L.F., 2005
ABPC 28, 373 A.R. 114; R. v. Wiscombe, 2003 BCPC 418 (CanLII); R. v.
Murphy (2001), 29 M.V.R. (4th) 50; R. v. Spannier, 1996 CanLII 978; R.
v. Jewitt, [1985] 2 S.C.R. 128; R. v. Hinse, [1995] 4 S.C.R. 597; R.
v. Provo, [1989] 2 S.C.R. 3; R. v. Yelle, 2006 ABCA 276, 397 A.R.
287; R. v. Smith, 2004 SCC 14, [2004] 1 S.C.R. 385; R. v. Thomas,
[1998] 3 S.C.R. 535.
Statutes and Regulations
Cited
Canadian Charter of Rights and Freedoms,
ss. 7 , 24(1) .
Criminal Code, R.S.C. 1985, c. C‑46,
ss. 423.1(1) (b), (2) (a), 686(4) , (8) .
APPEAL from a judgment of the Quebec
Court of Appeal (Morissette, Giroux and Gagnon JJ.A.), 2010 QCCA 2118, 83
C.R. (6th) 388, [2010] Q.J. No. 11919 (QL), 2010 CarswellQue 15627, upholding
the accused’s acquittal on assault charges and setting aside the stay of
proceedings entered on charges of intimidating a justice system participant by
Legault J., 2008 QCCQ 21567, [2008] J.Q. no 24115 (QL),
2008 CarswellQue 15028. Appeal allowed and stay of proceedings restored.
Francis Pilotte and Henri‑Pierre Labrie, for
the appellant.
Carole Lebeuf and Michel Pennou, for the
respondent.
Louis Belleau, as amicus curiae.
James K. Stewart and Robert Gattrell, for the
intervener.
The judgment
of the Court was delivered by
Fish J. —
I
[1]
This appeal concerns a
prisoner and a prison guard who both suffered injuries during the
transportation of the prisoner by the prison guard between the court house in
Montréal and a penitentiary in nearby Laval.
[2]
The prisoner was
charged as a result with assault causing bodily harm, assault of a peace
officer and intimidation of a justice system participant. The appellant,
Riccardo Bellusci, was the prisoner. And the alleged victim, in all three
cases, was the prison guard, Michel Asselin.
[3]
Mr. Bellusci was
acquitted at trial of both charges of assault, and his acquittals are not in
issue before us.
[4]
This appeal relates
solely to the charge of intimidation. The trial judge found that Mr.
Bellusci’s guilt on that count had been established by the Crown. He
nonetheless declined to enter a conviction on the ground that Mr. Bellusci’s
rights under s. 7 of the Canadian Charter of Rights and Freedoms had
been violated (2008 QCCQ 21567 (CanLII)).
[5]
Mr. Bellusci stood charged with uttering threats
to a prison guard who had recklessly provoked him and then, in response
to the threats, grievously assaulted him while he was chained, shackled,
handcuffed and defenceless — in the prison guard’s custody. For this egregious
breach of his constitutional rights, Mr. Bellusci was entitled under s. 24(1)
of the Charter to a constitutional remedy.
[6]
Section 24(1) of the Charter vests in
trial judges broad discretion in granting, according to its terms, “such remedy
as the court considers appropriate and just in the circumstances”. After
considering lesser alternatives, the trial judge concluded that nothing short
of a stay of proceedings would be an appropriate and just remedy in the
exceptional circumstances of this case.
[7]
In exercising his
discretion as he did, the trial judge committed no error of law, nor any
reviewable error of fact. His conclusion was not manifestly unjust, within the
meaning of the governing authorities.
[8]
On an appeal by the
Crown, the Quebec Court of Appeal nonetheless quashed the stay and remitted the
matter to the trial court for continuation of Mr. Bellusci’s trial (2010 QCCA
2118 (CanLII)). For the reasons that follow, I believe the Court of Appeal
erred in setting aside the stay of proceedings entered at trial.
[9]
This alone is
sufficient to allow Mr. Bellusci’s appeal to this Court against the judgment of
the Court of Appeal, and to restore the stay of proceedings entered by the
trial judge.
[10]
It is thus unnecessary,
in order to dispose of the appeal, for us to consider a second question raised
by the appellant, with leave of the Court. And the question is this: Was the
Court of Appeal entitled, upon setting aside the stay, to order continuation
of the proceedings before the trial court, or was it bound instead to order
a new trial?
[11]
This is an important
issue, not previously resolved by the Court. It was thoroughly canvassed by
both parties, by the amicus curiae, and by the intervener as well. In
these circumstances, I think it appropriate to provide guidance on the issue
for the benefit of appellate courts before which it is bound to arise as an
actual ― and not theoretical ― matter.
II
[12]
On May 15, 2007, Mr.
Bellusci was a prisoner being transported in a van driven by Mr. Asselin.
[13]
The Crown alleged that
Mr. Bellusci, on that occasion, assaulted Mr. Asselin without provocation and
threatened to rape his wife and children. Mr. Bellusci admitted the threats
but contended that Mr. Asselin had in fact assaulted him.
[14]
The trial judge was
left with a reasonable doubt whether Mr. Bellusci had assaulted Mr. Asselin,
but he was satisfied that Mr. Bellusci had threatened to sexually assault Mr.
Asselin’s wife and children. The judge therefore acquitted Mr. Bellusci of the
assault charges, but found that Mr. Bellusci was guilty of intimidating Mr.
Asselin, a justice system participant.
[15]
However, the trial
judge was persuaded, on a balance of probabilities, that the encounter in the
prison van had unfolded as follows: (a) Mr. Bellusci had subjected Mr. Asselin [translation] “to verbal attacks that
were abusive, insulting and crude” (para. 26); (b) Mr. Asselin had placed Mr.
Bellusci in danger by disclosing to the other prisoners in the van that Mr.
Bellusci was a rapist; (c) Mr. Bellusci then, in response, threatened to rape
Mr. Asselin’s wife and children; (d) Mr. Asselin was injured when, as he was
opening the cell door, Mr. Bellusci forced it upon him; and (e) Mr. Asselin
then assaulted and injured Mr. Bellusci, who was at the time, chained, handcuffed
and shackled in a secure cell in the prison van.
[16]
On the basis of these
findings ― which are not in dispute ― the trial judge held that Mr.
Bellusci’s constitutional rights under s. 7 of the Charter had been
violated. It would shock informed members of the public to enter a conviction
against Mr. Bellusci for having uttered verbal threats recklessly provoked and
unlawfully punished by the prison guard to whom the threats had been made.
After considering other available remedies, including a reduction of sentence
and the possibility of legal or disciplinary proceedings against Mr. Asselin,
the trial judge held that a stay of proceedings was the only appropriate remedy
in the unusual and troubling circumstances of this case.
III
[17]
It is well established
that a trial judge’s order under s. 24(1) of the Charter should be
disturbed on appeal “only if the trial judge misdirects himself or if his
decision is so clearly wrong as to amount to an injustice”: R. v. Regan,
2002 SCC 12, [2002] 1 S.C.R. 297, at para. 117; Canada (Minister of
Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, at
para. 87.
[18]
That this is the
appropriate standard of review was unanimously reaffirmed by the Court, citing Regan,
in R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651 (Rothstein J., at
para. 15; Fish J., at para. 51). Speaking for myself and Justices Binnie and
Abella, dissenting in the result, I elaborated as follows on the agreed
standard of review:
On
an application under s. 24(1) of the Canadian Charter of Rights and Freedoms ,
once an infringement has been established, the trial judge must grant “such
remedy as [is] appropriate and just in the circumstances”. The remedy granted
must vindicate the rights of the claimant, be fair to the party against whom it
is ordered, and consider all other relevant circumstances. Appellate courts may
interfere with a trial judge’s exercise of discretion only if the trial judge
has erred in law or rendered an unjust decision. This is particularly true of
remedies granted by trial judges under s. 24(1) of the Charter , which by
its very terms confers on trial judges the widest possible discretion.
Finally, appellate courts must take particular care not to substitute their own
exercise of discretion for that of the trial judge merely because they would
have granted a more generous or more limited remedy. [Emphasis in original;
para. 42.]
[19]
Accordingly, the
outcome of this appeal depends on whether the trial judge misdirected himself
in law, committed a reviewable error of fact or rendered a decision that is “so
clearly wrong as to amount to an injustice”. In my view, his decision suffers
from none of these fatal flaws.
[20]
The trial judge first
clearly and correctly outlined the applicable principles of law and relevant
jurisprudence. He then considered the appropriate factors in light of the
evidence before him.
[21]
It is clear from the
substance of his analysis that he felt the Charter breach in issue here
fell within the “residual” and “exceptional” category of cases where the
misconduct was “so egregious that the mere fact of going forward in the light
of it will be offensive” (Tobiass, at para. 91).
[22]
The trial judge held
that this was a case of unlawful extrajudicial punishment that would shock the
public. Mr. Bellusci was attacked by an agent of the state while chained,
handcuffed, shackled and confined to his cell in a secure prison van. This was
an apparent act of revenge by a prison guard who decided to make Mr. Bellusci [translation] “pay physically” for his unacceptable conduct (para. 21). The injuries inflicted on Mr. Bellusci were
hardly trivial. They included [translation]
“imprints of wire mesh with petechiae on the back of the left shoulder at the
level of the shoulder blade, . . . injuries causing deformation of the left
forearm, [and] bumps and injuries on the head and neck” (para. 34). As a
result of his head injury, Mr. Bellusci was kept under observation overnight in
the prison infirmary.
[23]
The trial judge was
satisfied that the appellant’s threats, however reprehensible, would in all
likelihood not have been uttered but for Mr. Asselin’s inappropriate disclosure
to the other prisoners that the appellant was a sexual offender. The trial
judge was clearly alive to the difficult position of prison guards, but this
could not justify Mr. Asselin’s disclosure, which jeopardized Mr. Bellusci’s
personal safety while imprisoned.
[24]
The integrity of the
justice system was further tarnished, in the judge’s view, by the reticence and
[translation] “sclerotic
solidarity” that characterized the testimony at trial of Mr. Asselin’s fellow
prison guards (para. 79).
[25]
Having found that Mr.
Bellusci had been provoked and subjected by a state actor to intolerable
physical and psychological abuse, it was open to the trial judge to decline to
enter a conviction against him. As the Court explained in Tobiass, “if
a past abuse were serious enough, then public confidence in the administration
of justice could be so undermined that the mere act of carrying forward in the
light of it would constitute a new and ongoing abuse sufficient to warrant a
stay of proceedings” (para. 96).
[26]
I am therefore unable
to share the conclusion of the Court of Appeal that the trial judge, in
granting a stay, committed a reviewable error by overlooking the “non
sequitur” between the state misconduct and the stay of proceedings (para.
21).
[27]
Nor am I able to agree
that the trial judge erred in failing to consider the availability of less
drastic remedies. On the contrary, as mentioned earlier, he expressly
considered various alternatives and found that none were adequate in the
circumstances.
[28]
Given the seriousness
and the impact of the prison guard’s misconduct, the trial judge concluded that
only a stay would be sufficient and appropriate in the circumstances.
[29]
Moreover, the trial
judge appreciated the need to balance the competing interests at play in
contemplating a stay of proceedings. He expressly took into account the
difficult position of prison guards, the importance to the justice system of
ensuring their protection, the seriousness of the charges against the accused,
the integrity of the justice system, and the nature and gravity of the
violation of Mr. Bellusci’s rights. Only then did he conclude that a stay was
warranted.
[30]
Like the Court of
Appeal, I might well have granted a lesser remedy. But absent an error of law
or reviewable finding of fact, appellate courts must defer to the broad
discretion vested in trial judges by s. 24(1) of the Charter . To
repeat, as I explained in Bjelland, “appellate courts must take
particular care not to substitute their own exercise of discretion for that of
the trial judge merely because they would have granted a more generous or more
limited remedy” (para. 42).
[31]
In short, the trial
judge in this case carefully and correctly considered all the relevant
principles. He assessed the gravity of the prejudice and explained why he
thought alternative remedies were inadequate. He did not misdirect himself on
the applicable law or commit a reviewable error of fact. Nor was his exercise
of discretion to grant a stay of proceedings “so clearly wrong as to amount to
an injustice” (Regan, supra). My conclusion in this regard
relates exclusively to the circumstances of the present matter. In fairness to
the trial judge, however, I note that other judges have considered a stay of
proceedings to be a proportionate remedy for mistreatment suffered at the hands
of law enforcement officers: R. v. Walcott (2008), 57 C.R. (6th) 223
(Ont. S.C.J.);
R. v. Maskell, 2011 ABPC 176, 512 A.R. 372; R. v. Jackson,
2011 ONCJ 228, 235 C.R.R. (2d) 289;
R. v. Mohmedi, 2009 ONCJ 533, 72 C.R. (6th) 345; R. v. J.W., 2006
ABPC 216, 398 A.R. 374;
R. v. R.L.F., 2005 ABPC 28, 373 A.R. 114;
R. v. Wiscombe, 2003 BCPC 418 (CanLII);
R. v. Murphy (2001), 29 M.V.R. (4th) 50 (Sask. Prov. Ct.); R. v. Spannier,
1996 CanLII 978 (B.C.S.C.).
[32]
With respect, appellate
intervention in these circumstances was therefore unwarranted.
IV
[33]
I turn now to consider
whether a court of appeal, upon setting aside a stay of proceedings, may in
appropriate circumstances remit the matter to the trial court for continuation
of the trial. I believe that it can, pursuant to ss. 686(4) and 686(8) of the Criminal
Code, R.S.C. 1985, c. C-46 .
[34]
Section 686(4) (b)
provides that a court of appeal, upon allowing an appeal by the Crown against
an acquittal at trial, may
(i) order a new trial, or
(ii) except
where the verdict is that of a court composed of a judge and jury, enter a
verdict of guilty with respect to the offence of which, in its opinion, the
accused should have been found guilty but for the error in law, and pass a
sentence that is warranted in law, or remit the matter to the trial court and
direct the trial court to impose a sentence that is warranted in law.
It
is well established that “acquittal”, in this context, includes a stay of
proceedings, since it brings the proceedings to a final conclusion in favour of
the accused: R. v. Jewitt, [1985] 2 S.C.R. 128.
[35]
Section 686(8)
provides, in turn, that a
court of appeal, upon exercising any of its powers under s. 686(4) , “may make
any order, in addition, that justice requires”.
[36]
Understandably, the phrase “in addition” has
been thought to connote that a court of appeal, in setting aside an acquittal
or stay of proceedings, may make an order under s. 686(8) only if it
substitutes a conviction or orders a new trial ― its only powers explicitly conferred by s. 686(4) .
[37]
However, in R. v.
Hinse, [1995] 4 S.C.R. 597, Lamer C.J. held that s. 686(8) must be
given a large and liberal interpretation consistent with its “broad remedial
purpose” (para. 30; see also R. v. Provo, [1989] 2 S.C.R. 3, at p. 20).
And, although the Chief Justice considered that s. 686(8) orders are
“fundamentally ancillary and supplemental” (para. 31), he nonetheless held that
“a court of appeal may enter an order under its residual power even if the court
of appeal has not previously and independently ‘exercise[d] any of the powers
conferred by subsection (2), (4), (6) or (7)’ of s. 686” (para. 30). This
solution was adopted by the Alberta Court of Appeal in R. v. Yelle, 2006
ABCA 276, 397 A.R. 287.
[38]
In R. v. Smith,
2004 SCC 14, [2004] 1 S.C.R. 385, Binnie J. reached the same conclusion by a
route that conforms more closely to the text of s. 686(8) . Dealing in Smith
with s. 686(2), which applies to an appeal from a conviction, Justice Binnie
stated:
Section
686(2) provides that where a Court of Appeal allows an appeal, “it shall quash
the conviction”, and s. 686(8) provides that, on the exercise of “any of the
powers” under s. 686(2), the court may make “any order, in addition, that
justice requires”. The quashing of the conviction is an exercise of the court’s
power under s. 686(2). [para. 22]
[39]
The same reasoning
applies to s. 686(4) . In allowing the appeal and setting aside the acquittal
(or stay of proceedings), the court exercises a power under s. 686(4) .
It follows, in my view, that an appellate court need not order a new trial or
enter a verdict of guilty in order to trigger the application of s. 686(8) ,
which depends only on the exercise of “any of the powers” conferred by
s. 686(4) .
[40]
Accordingly, s. 686(8),
which allows “any order . . . that justice requires”, authorizes an appellate
court to order the continuation of a trial ― but only where continuation
of the trial is what “justice requires” in the particular circumstances of the
case. Manifestly, an order under s. 686(8) must not be at variance with the
underlying judgment: R. v. Thomas, [1998] 3 S.C.R. 535, at para. 17.
[41]
Applying these
principles in Yelle, the Alberta Court of Appeal set aside a stay of
proceedings, but declined to either substitute a conviction or order a new
trial. Instead, the court ordered continuation of the trial because that is
what justice required in the circumstances of the case:
The implications of ordering a new trial
would be enormous in a case such as this. It would require the rehearing of
three months of evidence for no good reason. In addition to being completely
unnecessary, it would be a great waste of the court’s resources, the witnesses’
time, and the respondents’ money (requiring them to pay again for legal
services already provided).
Further,
there is no advantage to the parties or the administration of justice to start
anew. Indeed, there will be prejudice to all involved; the parties, witnesses,
and the reputation of the administration of justice. [paras. 17-18]
[42]
Continuation of the
trial will not always be preferable or even possible. It is in any event an
order that can properly be made only where the interests of justice require it,
where there is no undue prejudice to the parties, and where no unfairness would
result.
[43]
Finally, I believe the
trial court to which the matter is remitted should retain its discretion to
instead order a new trial where resumption of the interrupted proceedings
proves to be impractical or unfair.
[44]
On this appeal, as
mentioned earlier, both parties agree that a court of appeal may order
continuation of the trial upon setting aside a stay of proceedings. They both
submit, however, that a conviction should instead be entered in this case if
the stay is overturned, since the relevant findings of fact have in their view
already been made.
[45]
In view of my
conclusion that the stay was wrongly set aside by the Court of Appeal, I find
it unnecessary to express a decided view regarding its order that the trial
should be resumed. I think it sufficient to say there appears to be merit in
the submission of the amicus curiae that a conviction was not a foregone
conclusion.
[46]
As the amicus curiae
points out, the indictment against Mr. Bellusci alleges physical violence,
contrary to s. 423.1(1) (b) and (2) (a), whereas Mr. Bellusci was
only found to have uttered verbal threats, an offence under a different
subsection of the Code.
V
[47]
For all of these
reasons, I would allow the appeal and restore the stay of proceedings entered
by the trial judge.
Appeal allowed and stay of proceedings restored.
Solicitors for the appellant: Lord,
Poissant & Associés, Brossard.
Solicitor for the
respondent: Directeur des poursuites criminelles et pénales du
Québec, Montréal.
Solicitors appointed by the Court as amicus curiae: Shadley
Battista, Montréal.
Solicitor
for the intervener: Attorney General of Ontario, Toronto.
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