DATE: 20060616

DOCKET: C40544

COURT OF APPEAL FOR ONTARIO

SIMMONS, MACFARLAND AND ROULEAU JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Appellant

Philip Perlmutter for the appellant

• and -

Michael MacDonald for the respondent

GURKIRAN SINGH MANGAT

Respondent

Heard: March 27, 2006

On appeal from the order of Justice Kathryn L. Hawke of the Ontario Court of Justice dated July 30, 2003.

BY THE COURT:

[1] The Crown appeals an order made by Hawke J. staying proceedings against the respondent pursuant to s. 24(1) of the Charter based on a breach of s. 9 of the Charter. The trial judge’s order arose from the circumstances surrounding the respondent’s arrest on a charge of robbery. For the reasons that follow, we would allow the Crown’s appeal.

[2] The respondent was arrested as the result of an incident on September 16, 2001, during which a Rogers Video store employee was robbed while walking to the bank with the store’s deposit bag. The police alleged that the respondent, a fellow employee of the victim, was the mastermind of the robbery, but that others actually committed the offence.

[3] The respondent was arrested on October 19, 2001, at 7:10 a.m. Following his arrest, the police detained the respondent at a police station until October 20, 2001 at 8:40 a.m. when he was transported to court for a bail hearing.

[4] In her reasons, the trial judge concluded that the respondent’s detention did not comply with s. 503 of the Criminal Code. In that regard, the trial judge noted that the leading case dealing with the interpretation of s. 503 of the Criminal Code is R. v. Koszulap (1975), 1974 1461 (ON CA), 20 C.C.C. (2d) 193 in which this court stated “the obligation of the arresting officer is to bring the arrested person before a Justice ‘without unreasonable delay’…and that 24 hours is the outer limit of what is a reasonable period where a Justice is available within that period.” The trial judge found that, because the detention exceeded 24 hours and a Justice of the Peace could have been accessed up until the end of the first 10 hours of the period during which he was detained, the respondent’s detention did not comply with s. 503 of the Criminal Code and was therefore unlawful.

[5] Based on further findings that the arresting officer had a clear goal of obtaining an inculpatory statement and detained the respondent in contravention of s. 503 in order to achieve that purpose, the trial judge concluded that the respondent's detention was arbitrary.

[6] Finally, after finding that the respondent's arbitrary detention was "foreseeable, deliberate, serious, flagrant and part of an inappropriate course of conduct," the trial judge concluded that the only appropriate remedy was a stay of proceedings pursuant to s. 24(1) of the Charter.

[7] The Crown raises two issues on appeal. We called on the respondent only in relation to the second issue. Nevertheless, we will briefly address the first issue raised by the Crown, namely, that on her own findings of fact, the trial judge’s conclusions are, in part, unreasonable.

[8] In our view, the reasonableness of the trial judge’s finding concerning the arresting officer’s motive for continuing to detain the respondent is not undermined by the trial judge’s failure to advert to the fact that the arresting officer continued to detain the respondent after 3 p.m. on October 19, 2001, when the respondent completed his inculpatory statement.

[9] In that respect, we agree that the trial judge made findings that the arresting officer continued to detain the respondent in order to obtain an inculpatory statement and that, by his actions, the arresting officer conveyed a message that the respondent would continue to be detained until his attitude changed. However, on our reading of the trial judge’s reasons, her findings were in no way premised on a further conclusion that the arresting officer intended to release the respondent promptly once the respondent provided an inculpatory statement. In these circumstances, we see no basis for concluding that the trial judge’s findings are tainted by her failure to advert specifically to the respondent’s continued detention after 3 p.m.

[10] As part of the first issue, the Crown also submitted that the trial judge blurred the burdens of proof in relation to the voluntariness and Charter issues raised on the voir dire. In particular, the Crown submitted that the trial judge improperly held that the same evidence that fell short of establishing voluntariness was sufficient to establish a Charter breach. We disagree. In our view, the trial judge made clear findings of fact supporting her conclusions on the Charter issues and did not merely rely on the lacunae of evidence she had identified in relation to voluntariness.

[11] The second issue raised by the Crown is whether, on the facts of this case, the trial judge erred in ordering a stay. In particular, the Crown submits that even assuming the respondent's s. 9 Charter rights were breached, the trial judge failed to consider and apply the appropriate legal principles in holding that a stay of proceedings was warranted.

[12] We accept the Crown’s submission. A stay of proceedings is a drastic remedy reserved for the “clearest of cases”: R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411 at para. 68. Whether the wrongful conduct that is in issue causes prejudice to the accused because of an unfair trial, or is harmful to the integrity of the justice system, a stay of proceeding is appropriate only where the following two criteria are satisfied:

i. the prejudice caused by the breach will be manifested, perpetuated or aggravated through the conduct of the trial or its outcome; and

ii. no other remedy is reasonably capable of removing that prejudice: R. v. Regan (2002), 2002 SCC 12, 161 C.C.C. (3d) 97 (S.C.C.) at paras. 53 and 54. See also R. v. O’Connor, supra, and Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 322 (SCC), [1997] 3 S.C.R. 391.

[13] In deciding that a stay was the appropriate remedy in the circumstances of this case, the trial judge did not refer to any authorities, nor did she articulate specifically the test to be applied in deciding whether to grant a stay. While the respondent submits that it is implicit in her reasons that the trial judge applied the proper test, we are unable to accept that submission. On our review of the trial judge’s reasons, in deciding to grant a stay, she relied on the following factors:

i. the s. 9 Charter violation was serious and flagrant;

ii. the Crown failed to prove that the respondent’s statement was voluntary, and thus excluding the statement under s. 24(2) of the Charter would amount to granting no remedy; and

iii. there should be a remedy that would apply regardless of the outcome of the case on the merits, and reducing the respondent’s sentence in the event he was convicted would not be an appropriate remedy.

[14] While the findings of the trial judge raise important concerns about the arresting officer’s conduct, because the respondent’s statement to the police was excluded, there was no possibility that conduct would affect the fairness of the respondent’s trial. In our view, in granting a stay of proceedings, the trial judge failed to address the fundamental issue of whether the prejudice caused by the breach of the respondent’s s. 9 Charter rights would be manifested, perpetuated or aggravated through the conduct of the trial or its outcome.

[15] In particular, the trial judge made no findings indicating that a stay was necessary in order to address systemic issues relating to the officer’s conduct; nor did she explain why the lesser remedy of excluding the respondent’s statement would not be adequate to address the prejudice that arose from the officer’s conduct.

[16] The fact that the Crown failed to prove that the respondent’s statement was voluntary and that it would therefore be excluded in any event, does not compel a finding that exclusion of the statement is not an adequate remedy. This is because the issue in question is not punishment of the police; rather, it is whether the prejudice caused by the breach of the respondent’s s. 9 Charter rights can be adequately addressed by a lesser remedy than a stay. On our review of the record and the trial judge’s findings, we see no basis for concluding that the exclusion of the respondent’s statement under s. 24(2) of the Charter was not an adequate remedy to address the prejudice arising from the breach of the respondent's rights.

[17] Accordingly, the appeal is allowed and the trial judge’s order that a stay of proceedings be granted is set aside.

[18] At the conclusion of oral submissions, we requested written submissions on the subject of whether, in the event we decided to set aside the stay, it was appropriate to remit the matter to the original trial judge to continue the trial. That issue was left open by this court in R. v. Allen, 1996 4011 (ON CA), [1996] O.J. No. 3175 aff’d 1997 331 (SCC), [1997] 3 S.C.R. 700. In its written submissions, the Crown contends that subsequent authorities have made it clear that an order directing that the original trial judge continue the trial is not an available option. Having considered this matter further, given the length of time that has passed between the trial judge’s order and the hearing of this appeal, we conclude that the appropriate order is simply to direct a new trial in which the respondent’s statement to the police shall be excluded.

[19] As part of his written submissions, the respondent requested that in the event we ordered a new trial without directing that this matter be returned to the original trial judge, we make a further order striking his election for a trial before a provincial court judge. He relies, by analogy, on s. 686(5) of the Criminal Code, which provides that if an accused in his notice of appeal requests that any new trial be before a judge and jury, the new trial shall be held accordingly.

[20] We decline to make the order requested. As already noted, the respondent’s argument is premised on an analogy to the Criminal Code provisions dealing with appeals by an accused person. Assuming, without deciding, that this court would have the authority on a Crown appeal to direct, if requested by the accused, that any new trial be by judge and jury, we are not persuaded that such power would extend to simply striking the accused’s election. That is not one of the options available on an appeal by an accused person. However, these reasons should not be taken as expressing any view on the issue of the respondent’s entitlement to re-elect under s. 561(2) of the Criminal Code.

RELEASED: June 16, 2006 “JS”

“Janet Simmons J.A.”

“J. MacFarland J.A.”

“Paul S. Rouleau J.A.”