R. v. Brunelle

R. v. Brunelle
Collection
Supreme Court Judgments
Date
2024-01-26
Neutral citation
2024 SCC 3
Case number
39917
Judges
Wagner, Richard; Karakatsanis, Andromache; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas; Jamal, Mahmud; O’Bonsawin, Michelle
On appeal from
Quebec
Subjects
Constitutional law
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Brunelle, 2024 SCC 3
Appeal Heard: February 8, 2023 Judgment Rendered: January 26, 2024 Docket: 39917
Between:
Daniel Brunelle, Siobol Chounlamountry, Simon Girard, Frédéric Thompson, Jonathan Verret-Casaubon, Jérémie Béliveau-Laliberté, Bernard Mailhot, Alexandre Bouchard, Yves Fernand Buonora, Denis Bilodeau, Carl Chevarie, Terrence Willard, Keven Faucher, Guillaume Fleurent, Éric Guerrier, Danny Guilbeault, Tammy Lamontagne, Olivier Lamothe, André Lauzier, Ambrose Mahoney, Yannick Manseau-Dufresne, Maxime Ménard, Louis-Philippe Noël, Éric Normandin, Robin Roy, Gail Denise Caron, Jérôme Fleury, Henry Bergeron, Alexandre Livernois-Grenier, Laurent Michel and Shanny Plante Appellants
and
His Majesty The King Respondent
- and -
Director of Public Prosecutions, Attorney General of Ontario, Attorney General of Quebec, Attorney General of British Columbia, Attorney General of Alberta, Criminal Lawyers’ Association (Ontario), Association québécoise des avocats et avocates de la défense and Association des avocats de la défense de Montréal-Laval-Longueuil Interveners
Official English Translation: Reasons of O’Bonsawin J.
Coram: Wagner C.J. and Karakatsanis, Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ.
Reasons for Judgment: (paras. 1 to 124)
O’Bonsawin J. (Wagner C.J. and Karakatsanis, Martin, Kasirer and Jamal JJ. concurring)
Concurring Reasons: (paras. 125 to 130)
Rowe J.
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
Daniel Brunelle, Siobol Chounlamountry, Simon Girard,
Frédéric Thompson, Jonathan Verret-Casaubon,
Jérémie Béliveau-Laliberté, Bernard Mailhot, Alexandre Bouchard,
Yves Fernand Buonora, Denis Bilodeau, Carl Chevarie,
Terrence Willard, Keven Faucher, Guillaume Fleurent,
Éric Guerrier, Danny Guilbeault, Tammy Lamontagne,
Olivier Lamothe, André Lauzier, Ambrose Mahoney,
Yannick Manseau-Dufresne, Maxime Ménard, Louis-Philippe Noël,
Éric Normandin, Robin Roy, Gail Denise Caron, Jérôme Fleury,
Henry Bergeron, Alexandre Livernois-Grenier,
Laurent Michel and Shanny Plante Appellants
v.
His Majesty The King Respondent
and
Director of Public Prosecutions,
Attorney General of Ontario,
Attorney General of Quebec,
Attorney General of British Columbia,
Attorney General of Alberta,
Criminal Lawyers’ Association (Ontario),
Association québécoise des avocats et avocates de la défense and
Association des avocats de la défense de Montréal-Laval-Longueuil Interveners
Indexed as: R. v. Brunelle
2024 SCC 3
File No.: 39917.
2023: February 8; 2024: January 26.
Present: Wagner C.J. and Karakatsanis, Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ.
on appeal from the court of appeal for quebec
Constitutional law — Charter of Rights — Remedy — Stay of proceedings — Abuse of process — Residual category — Standing — Some 30 persons arrested during large‑scale police operation — Accused persons filing motion for stay of proceedings on basis that police investigation and operation were vitiated by abuse of process in residual category resulting from accumulation of infringements of their constitutional rights, even though several of them were not victims of any of these infringements — First instance judge granting stay of proceedings but Court of Appeal setting it aside — Whether all accused had standing to seek stay of proceedings — Whether first instance judge erred in finding abuse of process in residual category and in entering stay of proceedings for all accused — Analytical framework that applies where allegation of abuse of process in residual category is based on infringement of other constitutional rights — Canadian Charter of Rights and Freedoms, ss. 7 , 24(1) .
During a large‑scale police operation arising out of an investigation into allegations of organized narcotics trafficking, 31 persons were arrested. They were divided into four different groups for separate trials. The accused in group 1, who were to be tried first, filed a motion for a stay of proceedings under s. 24(1) of the Charter on the basis that the police investigation and operation that led to the court proceedings against them were vitiated by an abuse of process. Specifically, they alleged that an accumulation of infringements of their constitutional rights under ss. 8 and 10(b) of the Charter met the threshold for establishing an abuse of process in the residual category for all of them, even though several of them were not the victims of any of these infringements. The accused in groups 2, 3 and 4 filed motions similar to the one filed by group 1.
The first instance judge entered a stay of proceedings for all of the accused in group 1. He held that the police practice of postponing the exercise by the accused of the right to retain and instruct counsel without delay until they were taken to the police station infringed the right of all of the accused in that group under s. 10(b) of the Charter . Relying on the cumulative effect of these infringements, which he considered to be the most serious ones, and other infringements and violations of the prescribed procedures, the judge held that there had been an abuse of process in the residual category. Groups 2, 3 and 4 and the Crown agreed that the decision rendered with respect to group 1 was applicable to those groups, and a stay of proceedings was also entered for them. The Court of Appeal allowed the Crown’s appeals, set aside the two judgments and ordered that a new trial be held, including a new hearing on the motion, on the ground that some of the accused did not have standing to obtain a stay of proceedings and that the first instance judge had failed to determine whether each accused’s s. 10(b) right had been infringed before finding an abuse of process under s. 7. The accused appeal to the Court.
Held: The appeal should be dismissed.
Per Wagner C.J. and Karakatsanis, Martin, Kasirer, Jamal and O’Bonsawin JJ.: It is appropriate to hold a new trial for group 1 and for groups 2, 3 and 4, including new hearings on the motions for a stay of proceedings. All of the accused had standing to apply for a stay of proceedings under s. 24(1) of the Charter even though some of them were not the victims of any of the infringements constituting the alleged abuse of process or of any breach of trial fairness. However, the first instance judge erred in failing to determine whether each accused’s right under s. 10(b) of the Charter had been infringed, a determination that had to be made in order to decide whether the allegation of abuse of process in the residual category was well founded. The first instance judge also erred in entering a stay of proceedings for all of the accused without first considering whether there were less drastic remedies that could have fully redressed the prejudice to the integrity of the justice system that he thought he had identified.
Two types of state conduct meet the threshold for establishing abuse of process: conduct that compromises trial fairness (“main category”) and conduct that, without necessarily threatening the fairness of the accused’s trial, nevertheless undermines the integrity of the justice system (“residual category”). Abuse of process in the main category engages the Charter provisions aimed at protecting trial fairness for accused persons, namely ss. 8 to 14 of the Charter , as well as the principles of fundamental justice set out in s. 7. Abuse of process in the residual category, on the other hand, engages only the principles of fundamental justice in s. 7 of the Charter , which protect accused persons from any state conduct that is unfair or vexatious to such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the justice system, regardless of the impact of the conduct on the accused’s other constitutional rights or on the fairness of their trial. When abuse of process is found in either category and a Charter guarantee has been infringed, s. 24(1) of the Charter gives a court of competent jurisdiction the power to grant such remedy as it considers appropriate and just in the circumstances. A stay of proceedings will be ordered only where the situation meets the high threshold of being one of the clearest of cases. This requires three conditions to be met: (1) there must be prejudice to the accused’s right to a fair trial or to the integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of the trial or by its outcome; (2) there must be no alternative remedy capable of redressing the prejudice; (3) where there is still uncertainty over whether a stay of proceedings is warranted after steps 1 and 2, the court is required to balance the interests in favour of granting a stay against the interest that society has in having a final decision on the merits.
An accused has standing to apply for a remedy under s. 24(1), including a stay of proceedings, where the accused’s allegations set out the essential elements that will have to be shown in order to establish that one of their Charter rights has been infringed. The existence of directly personal prejudice is not one of the essential elements that must be shown to establish an infringement of the s. 7 right on the basis of an abuse of process in the residual category. Impairment of the accused’s other rights or of the fairness of their trial, although relevant, is not determinative, because the type of prejudice addressed by the principles of fundamental justice in s. 7 goes well beyond personal prejudice; all that must be found is that there is state conduct with repercussions on a larger scale, that is, conduct that causes prejudice to the integrity of the justice system in the eyes of society.
However, for a court to find that an accused’s s. 7 right has been infringed as a result of an abuse of process in the residual category, there must be a sufficient causal connection between the abusive conduct and the proceedings against the accused. This connection will be considered sufficient where the criminal proceedings against the accused are tainted by the abusive conduct, which will be the case where abusive conduct occurred in the course of the investigation or police operation targeting the accused or the criminal proceedings against them. This requirement is consistent with the purpose of the doctrine of abuse of process in the residual category, which is to enable courts to protect the integrity of the justice system by dissociating themselves from state conduct that constitutes an abuse of the judicial process. It is also consistent with the applicable framework for granting a stay of proceedings under s. 24(1), whose three cumulative conditions allow for the screening of applications for stays of proceedings to ensure that this remedy is available only in the clearest of cases, which excludes cases in which the proceedings against the accused are not already tainted by abusive conduct.
When an infringement of s. 7 of the Charter is alleged together with an infringement of one or more procedural guarantees, the order of priority that a court should follow will depend on the factual record, on the nature of the Charter rights at play and on how they intersect. In the abuse of process context, both s. 7 and the specific procedural guarantees in ss. 8 to 14 of the Charter are intended to protect individuals from conduct that is vexatious to such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the justice system. Section 7 plays a role complementary to that of ss. 8 to 14 by providing residual protection against abuse of process that goes beyond the protection offered by the specific guarantees in ss. 8 to 14 . It is therefore not uncommon for s. 7 of the Charter to be invoked at the same time as one or more other procedural guarantees. Indeed, abusive state conduct may take all sorts of forms, and abuse of process in the residual category can be based on an accumulation of incidents or state misconduct. Furthermore, there is no reason why such incidents or misconduct cannot take the form of infringements of a procedural Charter guarantee and, consequently, why the alleged abuse of process cannot result from an accumulation of infringements of one or more guarantees. It follows that the frameworks for analyzing s. 7 and ss. 8 to 14 can coexist, and it is entirely appropriate to use the framework developed for the purposes of s. 7 to analyze any accumulation of infringements of one or more procedural guarantees in order to determine whether the infringements as a whole meet the threshold for establishing abuse of process, that is, prejudice to the integrity of the justice system. Of course, the framework applicable to each of these guarantees will remain relevant in determining whether the infringements making up the accumulation of infringements actually occurred. In fact, this determination will logically have to be made before the court decides whether there has been an abuse of process in the residual category.
In this case, each of the accused has standing to apply for a remedy under s. 24(1) of the Charter , since all of them assert that they were directly targeted by the police investigation and operation that resulted in the alleged abusive conduct. The abuse of process alleged by the accused results from an accumulation of infringements of rights guaranteed by ss. 8 and 10(b) of the Charter that reflects a situation of blatant disregard for their rights by the police. In these circumstances, the framework developed for the purposes of s. 7 of the Charter for analyzing abuse of process in the residual category should be adopted to determine whether the alleged infringements as a whole meet the threshold for establishing abuse of process. However, this exercise makes it necessary to apply the framework for each of the provisions at issue, ss. 8 and 10(b), to determine whether the allegations of infringements are well founded. Once each of the alleged infringements has been examined, it will then be possible to determine whether all of the infringements, considered together, amount to conduct that is vexatious to such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the justice system.
The first instance judge in this case erred in law in finding that the allegations that the s. 10(b) right to retain and instruct counsel without delay had been infringed were well founded with respect to all of the accused in group 1 solely on the basis of the police practice of systematically postponing the exercise of this right without first considering the particular circumstances of each arrest. The first instance judge had to correctly apply the s. 10(b) framework in relation to each of the accused and draw the necessary conclusions, which he did not do. This error on its own justifies holding a new hearing on the motion for a stay of proceedings for group 1, because the first instance judge’s conclusion that the right of the accused to retain and instruct counsel without delay had been infringed was an essential underpinning of his ultimate conclusion that the s. 7 right of the accused in group 1 had been infringed as a result of an abuse of process in the residual category. Since the fate of the accused in groups 2, 3 and 4 depends on the fate of those in group 1, new hearings must also be held on the motion for a stay of proceedings for groups 2, 3 and 4.
Lastly, the first instance judge erred in entering a stay of proceedings for all of the accused without considering less drastic remedies for each of them. The three conditions that must be met for a stay of proceedings to be granted are cumulative, and none of them is optional. The judge failed to ensure that the second condition was met in this case.
Per Rowe J.: There is agreement with the majority as to the result and in large measure as to its statement of the law and its application of the law in the instant case. However, greater clarity is warranted with respect to the methodology to be used when an accused seeks a stay of proceedings under s. 24(1) of the Charter for alleged infringements of their rights protected under ss. 8 to 14 and also seeks a stay under s. 24(1) for abuse of process under s. 7. Courts should apply a consistent approach to the analysis where s. 7 and ss. 8 to 14 of the Charter are relied on by an accused in order to obtain a stay of proceedings. The appropriate order of operations is as follows: where a right under ss. 8 to 14 is relied on, along with s. 7, reviewing courts should address the specific right first, including (if necessary) under s. 1 ; and if there is no infringement of the specific right, or if the infringement is justified under s. 1 , only then should reviewing courts have regard to s. 7, and, if necessary, s. 1 once again.
Cases Cited
By O’Bonsawin J.
Considered: R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309; R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. Castro, 2001 BCCA 507, 47 C.R. (5th) 391; R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495; referred to: R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167; Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297; R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566; Brind’Amour v. R., 2014 QCCA 33; Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607; Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236; Brunette v. Legault Joly Thiffault, s.e.n.c.r.l., 2018 SCC 55, [2018] 3 S.C.R. 481; R. v. Albashir, 2021 SCC 48; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96; R. v. Edwards, [1996] 1 S.C.R. 128; R. v. Rahey, [1987] 1 S.C.R. 588; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R.L. Crain Inc. v. Couture (1983), 6 D.L.R. (4th) 478; R. v. Scott, [1990] 3 S.C.R. 979; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; R. v. Conway, [1989] 1 S.C.R. 1659; R. v. J.J., 2022 SCC 28; R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443; R. v. White, [1999] 2 S.C.R. 417; R. v. Mills, [1999] 3 S.C.R. 668; R. v. Pearson, [1992] 3 S.C.R. 665; R. v. Seaboyer, [1991] 2 S.C.R. 577; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. Harrer, [1995] 3 S.C.R. 562; Canada (Attorney General) v. Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. McColman, 2023 SCC 8; R. v. Bellusci, 2012 SCC 44, [2012] 2 S.C.R. 509; R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651; R. v. Bartle, [1994] 3 S.C.R. 173; R. v. Manninen, [1987] 1 S.C.R. 1233; R. v. Evans, [1991] 1 S.C.R. 869; R. v. Brydges, [1990] 1 S.C.R. 190; R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460; R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689; R. v. Strachan, [1988] 2 S.C.R. 980; R. v. Martel, C.Q. Trois‑Rivières, Nos. 400‑01‑064968‑118, 400‑01‑064969‑116, 400‑01‑064970‑114, January 27, 2016; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579.
By Rowe J.
Referred to: R. v. J.J., 2022 SCC 28; Canada (Attorney General) v. Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392; R. v. Harrer, [1995] 3 S.C.R. 562; R. v. Généreux, [1992] 1 S.C.R. 259; R. v. Pearson, [1992] 3 S.C.R. 665; R. v. Pan, 2001 SCC 42, [2001] 2 S.C.R. 344; R. v. Cawthorne, 2016 SCC 32, [2016] 1 S.C.R. 983; R. v. St‑Onge Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309; R. v. MacDonnell, [1997] 1 S.C.R. 305.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , ss. 1 , 7 , 8 to 14 , 24 .
Controlled Drugs and Substances Act , S.C. 1996, c. 19 .
Criminal Code , R.S.C. 1985, c. C‑46, ss. 487(2) [repl. c. 25, s. 191], 487.01.
Authors Cited
Bachand, Frédéric. “Le droit d’agir en justice” (2020), 66 McGill L.J. 109.
Cromwell, Thomas A. Locus Standi: A Commentary on the Law of Standing in Canada. Toronto: Carswell, 1986.
Paciocco, David M. “The Stay of Proceedings as a Remedy in Criminal Cases: Abusing the Abuse of Process Concept” (1991), 15 Crim. L.J. 315.
Roach, Kent. Constitutional Remedies in Canada, 2nd ed. Toronto: Canada Law Book, 2013 (loose‑leaf updated October 2023, release 2).
APPEAL from a judgment of the Quebec Court of Appeal (Thibault, Hogue and Beaupré JJ.A.), 2021 QCCA 1317, 75 C.R. (7th) 74, [2021] AZ‑51792396, [2021] J.Q. no 10437 (Lexis), 2021 CarswellQue 13674 (WL), setting aside the stays of proceedings entered by Dumas J., 2019 QCCS 6006, [2019] AZ‑51792549, [2019] J.Q. no 28228 (Lexis), 2019 CarswellQue 18981 (WL), and 2018 QCCS 6155, [2018] AZ‑51792548, [2018] J.Q. no 23911 (Lexis), 2018 CarswellQue 20267 (WL), and ordering a new trial. Appeal dismissed.
Tristan Desjardins and Michel Lebrun, for the appellants.
Nicolas Abran, Pauline Lachance, Benoit Larouche and Julien Beauchamp‑Laliberté, for the respondent.
Mathieu Stanton and Éric Marcoux, for the intervener the Director of Public Prosecutions.
Holly Loubert and Vallery Bayly, for the intervener the Attorney General of Ontario.
François Hénault and Catheryne Bélanger, for the intervener Attorney General of Quebec.
Micah B. Rankin and Rome Carot, for the intervener Attorney General of British Columbia.
Andrew Barg, for the intervener Attorney General of Alberta.
Andrew Burgess, for the intervener the Criminal Lawyers’ Association (Ontario).
Ariane Gagnon‑Rocque and Maude Cloutier, for the intervener Association québécoise des avocats et avocates de la défense.
Molly Krishtalka, Alexandra Belley‑McKinnon and Geoffroy Huet, for the intervener Association des avocats de la défense de Montréal‑Laval‑Longueuil.
English version of the judgment of Wagner C.J. and Karakatsanis, Martin, Kasirer, Jamal and O’Bonsawin JJ. delivered by
O’Bonsawin J. —
I. Overview
[1] The courts have a duty to protect the integrity of the justice system by dissociating themselves from state conduct that constitutes an abuse of the judicial process. This type of abusive conduct may take all sorts of forms. In this case, the alleged abuse of process is unusual in that it results from an accumulation of infringements of the rights guaranteed by ss. 8 and 10(b) of the Canadian Charter of Rights and Freedoms , infringements of which several but not all of the 31 appellants were the victims. These infringements allegedly occurred in the course of a large‑scale police investigation and operation known as [translation] “Project Nandou” that led to the arrest of the 31 appellants.
[2] The unusual nature of the alleged abuse of process raises two main questions. The first relates to the standing of the appellants who, for one reason or another, were not the victims of any of the infringements constituting the abuse or of any breach of trial fairness. In the absence of any personal prejudice, it must be asked whether these appellants were entitled to apply for a remedy under s. 24(1) of the Charter .
[3] The Superior Court answered this question in the affirmative and, after finding that there had been an abuse of process in the residual category under s. 7 of the Charter , entered a stay of proceedings for all of the appellants under s. 24(1). On appeal, the Quebec Court of Appeal ordered a new trial for all of the appellants on the ground that the Superior Court had failed to ascertain whether each of them had standing to obtain a stay of proceedings. The Court of Appeal was of the view that if the Superior Court had done so, it would have concluded that some appellants did not have standing to obtain a remedy under s. 24(1).
[4] The Court of Appeal was also of the view that ascertaining the appellants’ standing required the Superior Court to determine whether each appellant’s right under s. 10(b) of the Charter had been infringed, which it had not done. Moreover, standing had to be ascertained before the Superior Court considered whether there had been an abuse of process in the residual category under s. 7. This layering of analytical frameworks raises the second main question in this appeal: What approach should a court take in determining whether there has been an abuse of process in the residual category that, while falling under s. 7 of the Charter , nonetheless results from an accumulation of infringements of other Charter rights? Indeed, what needs to be considered is how to reconcile the relevant frameworks, that is, the s. 7 framework and the frameworks for ss. 8 and 10(b) of the Charter .
[5] For the reasons that follow, I would dismiss the appeal, partly for the reasons given by the Court of Appeal. Unlike that court, I am of the view that all of the appellants have standing to apply for a remedy under s. 24(1) of the Charter even though some of them were not the victims of any of the infringements constituting the alleged abuse of process or of any breach of trial fairness. However, I agree with the Court of Appeal that the Superior Court had to determine whether each appellant’s right under s. 10(b) of the Charter had been infringed and that it failed to do so, thereby committing a reviewable error. In light of the appellants’ arguments, that determination had to be made in order to decide whether the infringements as a whole met the threshold for abuse of process in the residual category. This is therefore a situation in which the frameworks for ss. 8 and 10(b) of the Charter are complementary to the s. 7 framework. Finally, I am of the view that the Superior Court also erred in entering a stay of proceedings for all of the appellants without first considering less drastic remedies that could have fully redressed the prejudice to the integrity of the justice system that it thought it had identified. These errors justify holding new trials, including new hearings on the appellants’ motion for a stay of proceedings and for the exclusion of evidence.
II. Factual Background
[6] The police operation at the centre of this appeal arose out of an investigation known as “Project Nandou” that began in November 2014 in the districts of Trois‑Rivières, Québec and Chicoutimi. The investigation concerned allegations of organized trafficking in narcotics, mainly cannabis.
[7] At the end of the investigation, on March 29, 2016, a first information was laid against the majority of the appellants. It charged them with having committed various indictable offences related to production of and trafficking in narcotics. Some of the appellants were also charged with criminal organization offences. After the information was laid, a number of arrest and search warrants were issued.
[8] A large‑scale police operation was planned. More than 250 police officers were to take part in it. A preparatory meeting, led by Detective Toussaint, was organized to arrange how the operation would unfold. During that meeting, the detective reiterated the importance of respecting the right of those arrested to retain and instruct counsel without delay as guaranteed by s. 10(b) of the Charter . However, he gave no indication of when the exercise of that right should be facilitated. He said he had assumed that the arresting officers knew the rules and would know when to do so.
[9] The operation got under way the morning of March 31, 2016, shortly before 7:00 a.m. The 31 appellants were almost all arrested at their residences in the first few minutes of the operation. The others were arrested at various locations later the same day or during the days that followed.
[10] All of the appellants acknowledge that they were informed of their right to retain and instruct counsel without delay at the time they were arrested. However, the evidence shows that they did not all respond in the same way: many indicated a desire to exercise their right as soon as they were informed of it, some did not ask to exercise their right until they were at the police station, and the others said that they did not wish to retain and instruct counsel or that they had already done so.
[11] In the end, out of the appellants who were arrested the morning of March 31, 2016, and who indicated a desire to immediately exercise their right to retain and instruct counsel without delay, only one was given an opportunity to do so while in the police vehicle. The others had to wait until they arrived at the police station. The time between being arrested and being given an opportunity to contact counsel ranged from 23 minutes to 1 hour and 6 minutes, depending on the case. No one was questioned during that time. It should also be noted that one of the appellants arrested later in the day or during the days that followed surrendered himself to the authorities at the courthouse while accompanied by his lawyer and that another of them was arrested at the airport, where he retained and instructed counsel.
[12] In the course of the Project Nandou investigation, the police obtained a number of warrants under the Criminal Code , R.S.C. 1985, c. C‑46 , and the Controlled Drugs and Substances Act , S.C. 1996, c. 19 . Most of the warrants were authorized in the district of Trois‑Rivières, but some were executed in another judicial district without being endorsed in that district.
[13] Forty‑four of the warrants obtained were general warrants authorized under s. 487.01 of the Criminal Code , and 40 of them required the police to give notice of a covert search to the persons concerned before the date specified in the warrant. Twenty of those warrants were executed, but no notice was given for any of them by the specified date.
[14] Following a preliminary inquiry, the 31 appellants were ordered to stand trial and later divided into 4 different groups for separate trials. On March 16, 2018, the seven appellants in group 1, who were to be tried first, filed a motion for a stay of proceedings and for the exclusion of evidence with the Superior Court. The motion contained several allegations relating to the police investigation and operation that had led to them being arrested and charged, three of which remain relevant in this appeal:
(i) failure to facilitate the requested access to counsel at the first reasonably available opportunity during the police operation on March 31, 2016, which allegedly resulted in the infringement of the right to retain and instruct counsel without delay guaranteed by s. 10(b) of the Charter ;
(ii) failure to give notice of a covert search within the allotted time, which allegedly resulted in the infringement of the right to be secure against unreasonable search or seizure guaranteed by s. 8 of the Charter ;
(iii) execution of search warrants outside the judicial district of the authorizing justices without the warrants being endorsed within the meaning of the former s. 487(2) of the Criminal Code , which also allegedly resulted in the infringement of the right to be secure against unreasonable search or seizure guaranteed by s. 8 of the Charter .
[15] During the hearing on their motion, the appellants in group 1 alleged that the accumulation of these infringements, some of them planned and intended by the police, reflected a situation of blatant disregard for their rights, met the threshold for establishing abuse of process and left the court with no choice but to stay the proceedings against each of them. That being said, the appellants did not focus on the breaches of trial fairness which would have resulted from the infringements, and they acknowledged that some of the infringements affected only part of the group and could not justify a stay of proceedings on their own.
III. Judicial History
A. Quebec Superior Court, 2018 QCCS 6155 (Dumas J.)
[16] On August 27, 2018, the Superior Court judge granted the motion brought by the appellants in group 1 and stayed the proceedings against them. Dealing with the right to retain and instruct counsel without delay, the Superior Court judge found from the evidence that when an appellant indicated a desire to contact counsel, [translation] “the systematic reply was that this would be done later” at the police station (para. 75 (CanLII)), even though there was no evidence that the police had examined the situation before postponing the exercise of the right to counsel. In the judge’s view, that practice infringed the right of all of the appellants in group 1 to retain and instruct counsel without delay because it [translation] “amounts to a reverse onus” (para. 84; see also para. 196): the police officers should have assessed whether the immediate exercise of the appellants’ right to counsel was feasible as soon as the appellants asked to exercise it, and not only when they insisted on exercising it at the scene.
[17] He added that while police officers do not have to allow a person under arrest to use a seized telephone and are not required to provide their own cell phones, there is no reason why they cannot be equipped with inexpensive cell phones to lend to such persons.
[18] The Superior Court judge then considered the failure by the police to give notice of a covert search within the allotted time. He rejected the Crown’s argument that the disclosure of evidence could substitute for the notice of a covert search required in the warrants, finding rather that this position amounted to saying that [translation] “despite a specific order by a justice, no notice of a covert search will be given if the search does not yield concrete results and the person is not charged” (para. 131). In his view, this position arose from [translation] “institutional laxity” (para. 131).
[19] With regard to the warrants authorized in the judicial district of Trois‑Rivières and executed in other districts, the Superior Court judge held that they should have been endorsed in those other judicial districts before being executed. If this had been the only infringement shown, he would have found that it was an error made in good faith, but in the circumstances it had to be added to the other breaches already identified.
[20] Relying on the cumulative effect of these infringements and violations of the prescribed procedures, the most serious of which were the infringements relating to the right to retain and instruct counsel without delay, the Superior Court judge held that there had been an abuse of process in the residual category. He found that the case involved a [translation] “systemic and persistent problem” and infringements that could bring the administration of justice into disrepute (paras. 216 and 219), which were so extreme that they justified entering a stay of proceedings for the seven appellants in group 1. In his opinion, continuing the proceedings would perpetuate the prejudice to the integrity of the justice system caused by the abuse and would encourage the police to carry on acting as they had in this case.
B. Quebec Superior Court, 2019 QCCS 6006 (Dumas J.)
[21] On September 5 and 6, 2018, the other three groups of appellants (groups 2, 3 and 4) filed motions similar to the one filed by group 1. After conferring with one another, the appellants in groups 2, 3 and 4 and the Crown consented to the evidence and arguments on group 1’s motion being entered for the hearing on the motions brought by groups 2, 3 and 4. Without waiving their right to appeal, those parties also agreed that the decision regarding group 1 was applicable to groups 2, 3 and 4.
[22] For the reasons given in the judgment rendered with respect to group 1 on August 27, 2018, and in light of the admissions made by the parties at the hearing, the Superior Court judge stayed the proceedings against the appellants in groups 2, 3 and 4 on May 7, 2019.
C. Quebec Court of Appeal, 2021 QCCA 1317, 75 C.R. (7th) 74 (Thibault, Hogue and Beaupré JJ.A.)
[23] On September 3, 2021, the Court of Appeal allowed the appeals, set aside the two judgments rendered by the Superior Court and ordered that a new trial be held, including a new hearing on the motion for a stay of proceedings and for the exclusion of evidence, before a different judge. In its analysis, the Court of Appeal began by noting that because the rules on standing (it used the French term “qualité pour agir”) (para. 55) provide that a remedy can be granted only to a person whose own constitutional rights have been infringed, it was therefore necessary to assess the situation of each appellant on a case‑by‑case basis. The Court of Appeal found that the Superior Court judge had erred in adopting an approach that led him to enter a stay of proceedings for all of the appellants without first assessing whether the right to retain and instruct counsel without delay guaranteed to each of them by s. 10(b) of the Charter had been infringed. It also noted that some of the appellants had said that they did not wish to speak to counsel after being informed of their right, while others had had an opportunity to do so immediately after being arrested.
[24] The Court of Appeal also identified several errors of law in the analysis of the “implementational” component of the right to retain and instruct counsel without delay and held that the Superior Court judge had erred by imposing a more onerous duty on the police than the law imposed on them.
[25] Finally, turning to the remedy granted, the Court of Appeal held that the Superior Court judge had erred in failing to consider less drastic remedies that could have sufficed to redress the abuse of process he had found in this case.
IV. Issues
[26] The resolution of the appeal requires an answer to the following four questions:
A. Did the appellants all have standing to apply for a remedy under s. 24(1) of the Charter ?
B. Did the Superior Court judge err in finding that there had been an abuse of process in the residual category?
C. Did the Superior Court judge err in entering a stay of proceedings for all of the appellants?
D. Could the Crown raise, before the Court of Appeal, the Superior Court judge’s failure to consider the particular circumstances of the arrest of each appellant in groups 2, 3 and 4 after consenting to judgment?
In my view, the four questions must be answered in the affirmative.
V. Analysis
[27] The law on abuse of process is well settled. The “key point” is that abuse of process “refers to Crown conduct that is egregious and seriously compromises trial fairness and/or the integrity of the justice system” (R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 50). As the preceding passage suggests, two types of state conduct meet the threshold for establishing abuse of process: conduct that compromises trial fairness (“main category”) and conduct that, without necessarily threatening the fairness of the accused’s trial, nevertheless undermines the integrity of the justice system (“residual category”) (Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, at para. 89; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 55; R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566, at para. 36; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31; see also Brind’Amour v. R., 2014 QCCA 33, at para. 53).
[28] While there is no actual “right against abuse of process” in the Charter , different guarantees will be engaged depending on the circumstances (R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 73). Abuse of process in the main category engages the Charter provisions aimed primarily at protecting trial fairness for accused persons, namely ss. 8 to 14, as well as the principles of fundamental justice set out in s. 7. Abuse of process in the residual catego