Court File and Parties
COURT FILE NO.: 901/15 CR DATE: 20160628
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen Respondent
- and -
Anthony Edward Ringel Applicant
COUNSEL: Adam Campbell and Robin Flumerfelt, for the Respondent Stephen F. Gehl, for the Applicant
HEARD: June 6, 7, 8, 13 & 14, 2016
RULINGS ON DEFENCE PRETRIAL APPLICATIONS: CONSTITUTIONALITY OF SECTION 579(2) OF THE CRIMINAL CODE, AND “TAINTING”
Conlan J.
I. Introduction
An Overview
[1] In Hanover, Ontario, more than twenty years ago, a young girl, Christine Harron (”Christine”), went missing.
[2] Anthony Ringel (“Mr. Ringel”) is charged with first degree murder. This is a “cold case”. Further, this is the second time around. Mr. Ringel was charged with the same offence more than a decade ago, however, at the Crown’s request, that proceeding was stayed after the trial judge excluded under the Charter inculpatory statements and actions of the accused.
[3] Years passed after the stay was entered. But the police investigation continued. Undercover officers (“UCs”) were assigned to befriend Mr. Ringel, who remained in the area. Eventually, in 2013, more than six years after the stay was imposed and approximately twenty years after Christine vanished, Mr. Ringel confessed, again.
[4] At this stage, the Defence has brought two Applications for the Court to consider. First, is section 579(2) of the Criminal Code, which section deals with stays of proceedings, unconstitutional? Second, should Mr. Ringel’s inculpatory statements to UCs in 2013 be excluded from evidence at trial because they are tainted by his pre-stay excluded confessions?
[5] I have determined that the impugned legislative provision is not unconstitutional. I have further concluded that the 2013 statements ought not to be excluded from the evidence at trial on the basis of tainting. The admissibility of those 2013 statements by Mr. Ringel, apart from the issue of tainting, is something to be decided at a later date. There are more pretrial Applications to come, and we return to this case in October 2016.
[6] Both Defence Applications are dismissed. These are my reasons for so deciding.
The Allegations
[7] Mr. Ringel stands charged on a single count Indictment, as follows.
Anthony Edward Ringel stands charged: That he, on or about the 18th day of May, 1993 at the Town of Hanover or elsewhere in the Province of Ontario, did commit First Degree Murder on the person of Christine Harron contrary to Section 235(1) of the Criminal Code of Canada.
[8] The allegations are that, on May 18, 1993, at Hanover, Mr. Ringel took Christine to the river, crossed the river, sexually assaulted her and then smothered or drowned her to death.
[9] The girl’s body has never been found.
The First Charge
[10] On August 22, 2004, eleven years after Christine went missing, Mr. Ringel was arrested for murder. The arrest followed an admission by Mr. Ringel to a police officer, in the course of an unrelated interaction, that he had killed Christine.
[11] Further inculpatory statements followed.
[12] The formal Information was sworn on August 24, 2004.
[13] By May 2006, the case was before Thompson J. of the Ontario Superior Court of Justice for pretrial Applications.
[14] In a written ruling delivered in September 2006, some scathing findings were made against the police. For violations of Mr. Ringel’s section 10(b) Charter right, all statements and actions of Mr. Ringel after a specific time of the morning on August 23, 2004 were ruled to be inadmissible at trial.
[15] Less than one month after the reasons for that ruling were released by the Court, on October 20, 2006, at Walkerton, Ontario, the Crown stayed the murder charge for a period of twelve months. Justice Thompson made the following endorsement: “charge stayed (12 months) at instance of Crown”.
The Current Charge
[16] On February 28, 2013, an Information was sworn that charged Mr. Ringel with the first degree murder of Christine Harron.
[17] That charge was precipitated by a lengthy police investigation that culminated in Mr. Ringel making inculpatory statements, essentially a full confession to having had sex with and having killed Christine, to UCs.
[18] After a lengthy preliminary inquiry, the Indictment that Mr. Ringel is currently being tried on, dated June 18, 2015, was filed.
[19] Mr. Ringel was arraigned on that charge before me in Owen Sound on June 6, 2016. He pleaded not guilty.
A More Detailed Chronology of the Key Events
The Disappearance of Christine Harron in May 1993
[20] On May 18, 1993, Christine, 15 years old, disappeared. It is alleged that Mr. Ringel murdered her in the relatively small town of Hanover, in Bruce County.
[21] Years passed. No body had been found, which fact remains true today. No arrest had been made.
The Arrest and Confessions of Mr. Ringel in August 2004
[22] On August 22, 2004, Constable Lipskie (“Lipskie”) of the Ontario Provincial Police (“OPP”) attended at an address in Elmwood, a village not far from Hanover. Lipskie was responding to a hang-up 911 call. As Lipskie was speaking with a woman, Mr. Ringel appeared and stated “I did it. Take me away”. He held out his arms and hands as if to be handcuffed. Lipskie was confused as he knew nothing about the May 1993 cold case.
[23] Within minutes, Mr. Ringel stated to Lipskie “I killed Christine”; “Christine Harris”; “Christine Harron”. Mr. Ringel offered to take Lipskie to where he buried the girl in Hanover. Lipskie arrested Mr. Ringel for murder. No Charter rights were provided.
[24] Mr. Ringel was transported to the Walkerton OPP detachment. Mr. Ringel spoke on the telephone with duty counsel.
[25] In the early morning hours of August 23rd, Mr. Ringel was interviewed by the police. The first interview lasted about thirty minutes, was recorded and included the provision of the section 10(b) Charter right and cautions. That first interview was terminated when Mr. Ringel asked to speak to a lawyer.
[26] While police were waiting for duty counsel to call back, Detective Inspector Mark Wright (“Wright”) spoke with Mr. Ringel near his holding cell, for just shy of twenty minutes. During that conversation, Mr. Ringel did not confess to any crime involving Christine.
[27] Justice Thompson, in a written ruling dated September 26, 2006 made in the course of pretrial Applications in the Superior Court of Justice (“Ruling”), was critical of Wright’s actions in speaking with Mr. Ringel near the holding cell. His Honour found that there was no urgency in doing so, especially when the police were waiting for a call back from duty counsel; and, further, His Honour held that the conversation should have been mechanically recorded.
[28] After speaking to duty counsel, Mr. Ringel was then interviewed again. Wright asked the questions. It was recorded. It lasted about 15 minutes. Charter rights and cautions were not provided during that interview.
[29] Wright then arranged for a polygraph expert to attend the detachment. One did, Detective Sergeant Graham (“Graham”). Now in the early afternoon on August 23rd, Graham spoke with Mr. Ringel at the holding cell. No confession was made. The discussion was not mechanically recorded.
[30] In the mid-afternoon on August 23rd, some fourteen hours after Mr. Ringel had been in police custody, Graham interviewed him for about three hours. It was recorded. It included near its commencement discussion about Mr. Ringel’s right to speak to a lawyer, but no cautions were provided. During that interview, Mr. Ringel confessed to having raped and killed Christine. Graham then re-arrested him for first degree murder and outlined his right to counsel. The primary caution, but not the secondary, was given. Duty counsel was called.
[31] While waiting for duty counsel to call back, Graham spoke again with Mr. Ringel. It was recorded. The purpose of the discussion was to ascertain whether Mr. Ringel would be able to show the police where the body was buried. Nothing inculpatory was said by Mr. Ringel.
[32] After speaking with duty counsel, Mr. Ringel was returned to his cell. Graham then spoke with him again, unrecorded. When asked whether he would help the police find the body, Mr. Ringel cried and nodded his head in the affirmative.
[33] Again, in the Ruling, Justice Thompson was critical of the actions of Graham in speaking with Mr. Ringel without any mechanical recording of what transpired.
[34] Mr. Ringel, Graham and Wright then headed for Hanover in a police vehicle.
[35] The overall trip away from the Walkerton OPP detachment took about two hours. It included a search for the body of Christine near the river in Hanover. None of it was mechanically recorded. Graham took some handwritten notes. Wright took none. No body or remains were found, although Mr. Ringel certainly made inculpatory admissions during the trip away from the Walkerton police detachment. Below, I refer to this two-hour period or so as the “trip”.
[36] Now back at the Walkerton OPP station, in the later evening hours of August 23rd, Mr. Ringel was again interviewed by Wright. It was recorded. It included the secondary caution. Mr. Ringel confessed to having killed Christine and described how he did it. Then, later, he recanted.
[37] The next day, on August 24th, Mr. Ringel was yet again interviewed, this time by Graham. It was recorded. Mr. Ringel confessed to the murder of Christine.
[38] That afternoon, Mr. Ringel was brought to the Walkerton Courthouse to appear before a judicial official.
The Legal Conclusions of Justice Thompson in the Ruling
[39] For the purposes of the tainting Application, it is agreed by both sides that I accept as correct the legal conclusions reached by Thompson J. and not go behind His Honour’s Ruling.
[40] On voluntariness, Thompson J. found that all of the statements made by Mr. Ringel to the police were voluntary, except for those made during the trip. All statements and actions of Mr. Ringel during the trip, commencing just before they left the Walkerton police station, were ruled to be inadmissible.
[41] In the alternative, His Honour found that the trip statements and actions, even if voluntary, were inadmissible because they were not sufficiently recorded.
[42] On Charter issues, His Honour held that the utterances made by Mr. Ringel to Lipskie, pre-arrest, were admissible. What Mr. Ringel repeated to Lipskie en route to the Walkerton OPP station, post-arrest, was held to be inadmissible because of a breach of section 10(b).
[43] Thompson J. saved the harshest criticism for Wright, saying this at paragraphs 105 and 106 of the Ruling.
The subsequent actions of Detective Inspector Wright are difficult to understand. Either he had no knowledge or understanding of the Charter of Rights, (despite his high rank in the O.P.P.), or he deliberately chose to trample all over Mr. Ringel’s rights as a Canadian citizen in defiance of the law. What he hoped to accomplish would be pure speculation but what is known is that his improvident actions will undoubtedly hinder any attempt to prosecute Mr. Ringel.
Upon his arrival at the Walkerton detachment, Detective Inspector Wright was told that Mr. Ringel did not want to talk to the police and that he had requested to speak to a lawyer. Detective Inspector Wright was told that Legal Aid had been called and that they were waiting for a return call. Notwithstanding this advice, Detective Inspector Wright decided to interrogate Mr. Ringel. In doing so he clearly violated Mr. Ringel’s right to counsel. At issue is whether this blatant disregard of Mr. Ringel’s rights affected the admissibility of the subsequent interaction between Anthony Ringel and the police. I have concluded that it did and was not “cured” by subsequent police action. I further note that Detective Inspector Wright’s violation of Mr. Ringel’s rights was further compounded when Detective Sergeant Graham failed to “hold off” further interrogation of Mr. Ringel in Statement #6 while awaiting a return call from Legal Aid. As a consequence I find that the interaction between Detective Inspector Wright and Mr. Ringel that commenced at 4:31 a.m. August 23, 2004 and all subsequent communications and interaction between Mr. Ringel and the police are inadmissible.
[44] His Honour concluded as follows, at the final paragraph (109) of the Ruling.
- All statements and actions of Anthony Ringel after 4:31 a.m. August 23, 2004, are inadmissible.
The Stay of Proceedings
[45] On October 20, 2006, at the Superior Court of Justice in Walkerton, the Crown made the following comments on the record: there would be no appeal by the Crown of the Ruling; the Ruling meant that there was no reasonable prospect of conviction on the charge of first degree murder; and the Crown was staying the proceeding for 12 months.
[46] The Indictment was endorsed accordingly.
The Canadian Broadcasting Corporation (“CBC”) Investigates
[47] On May 18, 2012, investigative filmmaker David Ridgen (“Ridgen”) of the CBC investigated the case of Christine Harron and what happened with Mr. Ringel. The documentary was aired on national television and narrated by a well-known broadcaster, Wendy Mesley.
[48] The documentary was relatively short – comprising about 13 pages of transcript.
[49] The introductory passage included references to a missing young girl named Christine, a confession to murder and a botched police investigation. “Confession to murder” was the real focus of the film.
[50] During the film, Ridgen speaks with Christine’s mother and step-father.
[51] The documentary includes a reference to “one of the strangest stories of police bungling in OPP history”, leading to Mr. Ringel being free despite having confessed to murder.
[52] Ridgen refers to documents in his possession, which include the Ruling of Thompson J. The initial confession to Lipskie is spoken about. The involvement of Wright and repeated interviews of Mr. Ringel are mentioned. Police errors are specified, including not giving Mr. Ringel his rights, not recording statements and taking Mr. Ringel to Hanover to search for Christine’s body, against his wishes.
[53] Ridgen visits the area of the alleged murder. He provides an account of what supposedly happened between Christine and Mr. Ringel – he raped and drowned and buried her.
[54] Ridgen refers to police, post-arrest in August 2004, taking Mr. Ringel to the area to look for the body.
[55] Ridgen talks about the Judge having thrown out statements and the search for the body. An actual excerpt from Thompson J.’s Ruling is shown on the screen during the film – paragraph 105, referred to above (criticizing Wright’s actions).
[56] Ridgen refers to the stay entered by the Crown, Mr. Ringel being freed from prison (he was actually released on bail with the Crown’s consent in July 2006, pending the release of the written Ruling in September, as the decision to exclude the evidence had been made on June 30, 2006), the case then crumbling to nothing, and questions remaining as to whether Mr. Ringel actually did what he confessed to doing.
[57] Some information is given about Mr. Ringel’s background and criminal record.
[58] During the film, Ridgen and Christine’s mother and step-father go to try to speak with Mr. Ringel. Ridgen asks Mr. Ringel’s sister if he ever confessed to her, and she answers in the negative. Mr. Ringel does not appear when the sister is spoken to on camera, however, Ridgen tracks him down at a trailer park (without Christine’s parents being present). A brief conversation ensues. Mr. Ringel has no explanation as to why he confessed to the murder. He denies ever having known or met Christine. He shakes his head in the negative when asked if he killed her.
[59] The film ends with Christine’s mother stating that “sooner or later justice will happen”.
The Police Continue to Investigate
[60] The police have never stopped believing that Mr. Ringel killed Christine. Commencing in July 2012 and continuing throughout the fall of 2012 and the winter of 2012-2013, an undercover police operation was underway with the ultimate goal of obtaining a confession to murder.
[61] Multiple UCs were used. A massive amount of time was invested to befriend Mr. Ringel, who remained in the area the whole time since 1993. For example, a UC moved in to the trailer park where Mr. Ringel was living. UCs ate meals with Mr. Ringel, took him places (like a mall in London, Ontario), went fishing with him, played pool with him, celebrated events with him like his birthday, chatted with him, shared stories with him, watched television with him, hung-out with him for hours at a time at an apartment, drove around with him, and so on.
[62] The operation went on for many, many months. Over time, Mr. Ringel opened up. Eventually, in February 2013, the police got what they wanted – Mr. Ringel told UC P. that he had sex with and killed Christine.
The Police Intercepts
[63] It is impossible for this Court to outline even a small fraction of what went on between the UCs and Mr. Ringel. In totality, the transcripts of the discussions, whether audio alone or both audio and video, amass thousands of pages. The following five points will suffice.
[64] First, Mr. Ringel became friends with, in particular, UC L. and UC P., two males.
[65] Second, the strongest bond appeared to be with UC P. Not coincidentally, it is that UC who received the ultimate confession from Mr. Ringel.
[66] Third, by February 17, 2013, Mr. Ringel had made comments to the UCs about having spent time in jail for murder. But he had never admitted in any way that he had sexually assaulted, had sex with or hurt or killed Christine.
[67] Fourth, by February 17, 2013, Mr. Ringel had made it well known to the UCs that he is highly interested in (obsessed or fascinated with would not be a stretch) young females. By “young”, I mean minor teenagers. One specific example is warranted. At the mall in London, Mr. Ringel nearly loses control of himself, to the point where UC L. and UC P. become concerned that he might do something, after seeing a young girl in a shoe store. Mr. Ringel makes a comment about maybe grabbing the girl, taking her in to the washroom and doing something sexual to her. That did not occur.
[68] Fifth, by February 17, 2013, it was well known to the UCs that Mr. Ringel loved to drink alcohol, especially beer. On nearly every encounter with the UCs, beer is involved, at least for Mr. Ringel.
The Police Investigation up to February 17, 2013: a Success or Desperation Time?
[69] The Crown and the Defence disagree on how successful or not the undercover police operation had been up to February 17, 2013.
[70] In my view, it is a matter of perspective. If success is measured by achieving the end objective, then the police operation was a failure. If, on the other hand, success is measured by sowing the seeds and creating the atmosphere required to obtain the ultimate objective, then it was succeeding.
[71] Mr. Gehl did a formidable job in bringing to the Court’s attention excerpts from the preliminary inquiry, held over the course of many days in 2014 and 2015 in Kitchener, Ontario, that, in my view, support the notion that the police operation was getting tired. I think that “desperate” is an exaggeration, but it was getting tired. It needed an injection in the form of a new idea. It needed a boost.
[72] Why did it need that boost? Not because it had been a miserable failure but simply because it had gone on for many months, had cost a lot of money and time and resources, had involved a myriad of techniques to get Mr. Ringel talking about Christine (including, for example, phony missing girl flyers posted around town), and yet the ultimate objective had not yet been achieved.
[73] Even the concoction of a phony story, that UC P. had in the past a sexual relationship with a young girl who happened to be the friend of UC L.’s step-daughter, had not yet provoked Mr. Ringel in to confessing his own, much bigger, skeleton in the closet.
[74] The seeds had been planted in that Mr. Ringel was becoming more and more trusting of the UCs, but make no mistake – the operation would have been considered an abject failure but for the obtaining of a confession to murder. That was the only goal that counted.
[75] Thus, in early 2013, the operation intensified. The situation was not urgent, however, a newfound sense of zeal took hold, and there was the specter of the obvious: the operation could not continue indefinitely.
[76] Finally, not long before February 17, 2013, the police found the injection that they needed – the CBC documentary. Actually, that film had been discovered by the police in 2012, but the plan to use it with UC P. was not formulated until less than two weeks before February 17th.
[77] There is no question that the CBC film was deliberately used by the police as a ploy, a lure, to produce a confession to murder. And it worked.
Mr. Ringel Confesses to Murder, Again
[78] On February 17-18, 2013, Mr. Ringel spent many hours in the company of his trusted friend, UC P., at the UCs’ apartment. The whole encounter was audio-video recorded, and we have a transcript of it.
[79] UC P., sitting on a couch with Mr. Ringel sitting on a nearby chair, are chatting and watching the television.
[80] UC P. uses a laptop computer to introduce the topic of the CBC documentary. Undoubtedly, the performance is Oscar-worthy. First, he accesses the internet to help them find a place in Owen Sound to play pool. Then he talks about Googling his own name and what would come up. Then he types in Mr. Ringel’s name, sort of as a joke, and the CBC film comes up.
[81] What follows is a protracted, start and stop, playing of the documentary, intermingled with drinking beer, talking and eating food.
[82] It does not immediately provoke a confession. In fact, early on in the playing of the film, Mr. Ringel tells the UC that he does not even know Christine.
[83] But by page 101 of the transcript of what we listened to and watched in the Courtroom, the confession starts. The following is a summary of the inculpatory remarks made by Mr. Ringel, most often while the playing of the CBC film was paused by UC P. (all references below are to the transcript - “HC” means the hard-copy in Exhibit 6, Volume 1 at tab O, and “PDF” means the electronic document on disc, Exhibit 1B).
[84] Pages 101, 109 and 113 HC – when Mr. Ringel is up in heaven, he will have to admit his mistake to her (Christine); his task will be to apologize to her or take care of her; and he is in jeopardy because number one on the list says one shall not kill.
[85] Page 1945 PDF – Mr. Ringel does not understand why the police could not find the body because she was not really buried.
[86] Pages 1946, 1962, 1963 and 1975 PDF – Mr. Ringel admits to having crossed the river with Christine, pushing her across, and being with her before and after the crossing. She lost her glasses during the crossing.
[87] Pages 1949 and 2024 PDF – when Mr. Ringel was taken to the scene by the police in 2004, post-arrest, he knew where the body was. He did not want to take the police to the exact spot because criminals are known to do that – return to the scene of the crime.
[88] Pages 1969, 1970 and 1971 PDF – Mr. Ringel describes what he did as the “perfect crime”, though he acknowledges that he could be charged with murder again, by different cops.
[89] Page 1979 PDF – Mr. Ringel states that he told the police the truth when he confessed years ago, and he knew what he was saying.
[90] Pages 1985, 1987 and 1995 PDF – Mr. Ringel admits to having had sex with Christine, whom he believes was a virgin.
[91] Page 1993 PDF – Mr. Ringel describes how he “beat the fucking pigs on this”.
[92] Page 1995 PDF – Mr. Ringel states that only he left the area after the sex. She did not (presumably, because she was dead).
[93] Pages 1997 and 2032 PDF – Mr. Ringel admits to having smothered Christine. She suffocated in the mud and a little bit of water.
[94] Pages 1998 and 2028 PDF – Mr. Ringel acknowledges a motive to have killed her: she might have told somebody about the sex. He had a choice – let her go and risk her telling someone, or kill her.
[95] Pages 1998 to 1999 PDF – Mr. Ringel states that he did not actually bury her but rather went back the next day and put some stuff on top of her body.
[96] Page 2020 PDF – Mr. Ringel admits that he has killed once (presumably, Christine).
[97] Page 2027 PDF – Mr. Ringel states that he was sexually frustrated and “opportunity knocked”; that is why he took Christine to the river.
[98] Pages 2033 to 2034 PDF – Mr. Ringel explains in words and then demonstrates for UC P. how he tied Christine up, behind her back, with her jacket.
[99] As is evident from the above summary, the confession to UC P. on February 17-18, 2013 is detailed and, on its face, damning.
[100] In the days following, Mr. Ringel continued to inculpate himself. At one point, there was a direction to the police from the Crown to try to get Mr. Ringel to confess again, without reference to the CBC documentary.
Mr. Ringel is Arrested for Murder, Again
[101] On February 27, 2013, Mr. Ringel was arrested for the first degree murder of Christine Harron.
[102] The current charge, sworn on February 28th, has made its way through a lengthy preliminary inquiry which culminated in a committal to stand trial and an Indictment being filed, dated June 18, 2015.
The Current Defence Pretrial Applications
[103] On June 6, 2016, at Owen Sound, Mr. Ringel was arraigned on and pleaded not guilty to the charge of first degree murder.
[104] Over the course of five days in June 2016, a voir dire was conducted with regard to the Defence Application to exclude, on the basis of tainting (the derived confessions rule), the February 2013 statements to the police, starting on the 17th. No live witnesses were called to testify by either side. Mr. Ringel gave no evidence on the Application. Numerous Exhibits were filed, and several audio and audio-video clips were played in the Courtroom of interactions between Mr. Ringel and the UCs. Oral submissions were made to supplement the facta on both sides. Casebooks were filed, with a couple of additional authorities provided to the Court during the hearing.
[105] Aside from the tainting argument, the Defence applies for a declaration that section 579(2) of the Criminal Code is unconstitutional and of no force or effect. On that Application, both sides were content to rely exclusively on the written materials filed, materials, I might add, that were helpful on both sides but much less dense than with regard to the tainting Application.
[106] One could say that the constitutional issue was not pursued with the same degree of vigour as the tainting Application.
[107] As the tainting Application was the focus of the Court time in June, I begin with that.
II. The Tainting Application
The Relief Sought
[108] The Defence seeks an Order, under section 24(2) of the Charter, excluding all admissions made by Mr. Ringel to undercover officers on or after February 17, 2013 (see clause 2 on page 23 of the Notice of Application).
[109] I refer to those statements below as the “February 2013 admissions”.
The Burden and Standard of Proof
[110] The onus of proof is on the Applicant, Mr. Ringel, on a balance of probabilities.
The Legal Issues
[111] In my view, there are two legal issues to be decided.
[112] First, were the February 2013 admissions obtained in a manner that infringed or denied any of Mr. Ringel’s rights or freedoms as guaranteed by the Charter?
[113] The framing of that issue comes from the wording of section 24(2) itself.
[114] To answer that question, I must assess whether the February 2013 admissions and the previously excluded evidence (the “2004 confessions”) under the Ruling of Thompson J. are part of the same transaction or course of conduct. That assessment, in turn, depends on the connection, if any, between the February 2013 admissions and the 2004 confessions, which required connection may be temporal, contextual, causal, or a combination of the three. R. v. Mack, 2014 SCC 58, [2014] S.C.J. No. 58, at paragraph 38.
[115] If the required connection has not been established, then the Application must be dismissed.
[116] If the required connection has been met, then I must continue on to the second issue.
[117] The second issue is whether admitting the February 2013 admissions would bring the administration of justice into disrepute.
[118] Again, the framing of that issue comes from the wording of section 24(2) itself.
[119] To answer that question, I must assess the factors outlined in R. v. Grant, 2009 SCC 32: (i) the seriousness of the state conduct, (ii) the seriousness of the impact of the Charter violation on the Charter-protected interests of the accused, and (iii) society’s interest in an adjudication of the matter on its merits.
[120] If, on balance, I find that admitting the February 2013 admissions would not bring the administration of justice into disrepute, then the Application must be dismissed.
Analysis
Issue Number One: the Required Connection Between the Statements
[121] In my view, the Defence Application fails on this issue.
[122] For the sake of this analysis, I will assume, without deciding, that the derivative confessions rule applies to the February 2013 admissions even though they were made by Mr. Ringel to UCs, who could not be considered in law to be persons in authority.
[123] I was urged by the Defence to decide that issue. I decline to do so. In this case, it is unnecessary. It is safer to take the Defence Application at its highest and determine it on its merits.
[124] The Defence concedes that there is no temporal connection between the 2004 confessions and the February 2013 admissions. That is a wise concession, as I agree with it completely.
[125] More than eight years passed between what happened in August 2004 and what occurred in February 2013. There is a first time for everything, and the law is a growing organism, but it is for certain that no temporal connection whatsoever can be drawn between these two sets of inculpatory statements.
[126] I conclude that there is no temporal connection existing here. None. That is different than saying that it is a weak factor. It is less than weak.
[127] There was a time when, according to the Supreme Court of Canada, the time interval between the two statements was a consideration of prime importance. R. v. Hobbins, [1982] 1 S.C.R. 553.
[128] The law evolves, however, and it would be an error, today, to not proceed to consider other factors that may connect the two sets of statements.
[129] Contextually, I conclude that there is no connection between the two sets of statements. None. Again, I repeat that this is different than a finding that the contextual similarity is present but weak. It is less than weak.
[130] The 2004 confessions were made post-arrest. The February 2013 admissions were made pre-arrest.
[131] The 2004 confessions were made to persons whom Mr. Ringel knew were police officers. The February 2013 admissions were not.
[132] The 2004 confessions were made, in large part, at a police station. The February 2013 admissions were not.
[133] The 2004 confessions were made, in large part, to Wright and Graham. The February 2013 admissions were made to neither.
[134] The 2004 confessions were made, in large part, in Walkerton. The February 2013 admissions were not.
[135] The strength of the connection between a piece of evidence and a Charter breach is a question of fact, and it is difficult to fathom two sets of circumstances that are more different than, for example, (i) Mr. Ringel, under arrest for murder, sitting in an interrogation room at the Walkerton OPP detachment and answering questions from known police officers, and (ii) Mr. Ringel sitting on a chair in a private apartment, drinking beer and watching a film on a laptop computer with his buddy. The two are worlds apart.
[136] The only similarity is that what happened to Christine is being discussed. That is no similarity at all, as I agree with Mr. Flumerfelt that if that was sufficient to establish any degree of a contextual connection then it would be made out in every tainting case. We do not get tainting cases before us where the first statement discusses a theft and the second discusses an unrelated rape, to illustrate my point.
[137] This case boils down to whether the two sets of statements have a causal connection. Quite responsibly, the Defence does not really suggest otherwise.
[138] Although Mr. Gehl submitted that there could be other connecting factors besides a temporal, contextual or causal one, none was specified and, in my opinion, none exists on these facts.
[139] The Defence is correct that tainting could be found on the basis of a causal connection alone.
[140] That is very different, however, than suggesting that tainting must be found where a causal connection is found to exist. In other words, that the Court should leap to a conclusion of tainting once a causal connection, even a relatively strong one, is identified.
[141] In my opinion, that would be an error. All of the factors should be considered. And it is open to me to find that a tenuous or completely absent tie on one or two factors undermines the significance of the relationship between the statements on the third factor. That is exactly what happened at first instance in Mack, supra, and the Supreme Court of Canada expressly declined to interfere with that approach at paragraph 42 of its decision.
[142] I agree with Mr. Gehl, whose submissions made this Application closer than the facts allow it to be, that there is a causal connection between the 2004 confessions and the February 2013 admissions. The connection uses a conduit, the CBC documentary, but there is a connection nonetheless.
[143] An overly simplistic rendition of what happened will, hopefully, illustrate the point. Before the playing of the film, Mr. Ringel had not confessed. The film was played for him. It contains references to his confessions that were “thrown out”. For the first time, within not days but hours, he had fully confessed to the killing of Christine.
[144] Arguably, there seems to be a “but-for” relationship, of some degree, between the CBC documentary (and, hence, the 2004 confessions) and the February 2013 admissions.
[145] In my view, however, the causal connection between the two sets of statements is not a strong one. In degree, I would describe it as weak to moderate. It is certainly not the kind of causal connection that could ground tainting in the complete absence of any temporal, contextual or other connection.
[146] The causal connection is weak to moderate in strength, for these two reasons.
[147] First, the CBC documentary is not, as suggested by the Defence, a mere alternative form of recording of the excluded 2004 confessions. It refers to them, but it refers to a lot of other things as well, even things that are inculpatory statements but perfectly admissible: the confession by Mr. Ringel to his mother (not excluded in the Ruling), the confession by Mr. Ringel to Lipskie (not excluded in the Ruling), and the confessions by Mr. Ringel to other family members (not excluded in the Ruling).
[148] Thus, although it is not required to demonstrate tainting that the statement-taker read out or play a recording of the actual excluded statement given earlier, and although mere reference to the excluded statement could suffice, on the evidence before me on this Application, it would be impermissible speculation to conclude that it was the references in the CBC film to the excluded 2004 confessions that caused Mr. Ringel to spill what happened with Christine to UC P.
[149] Second, I agree with the Crown that there is at least an equally plausible reason as to what caused Mr. Ringel to confess to UC P. on February 17-18, 2013. He wanted to. He felt comfortable at that time, with some alcohol in him and his most trusted companion at his side, having been refreshed of the case by the playing of the CBC documentary, and feeling talkative because of their mutual dislike for police and their mutual skeletons in the closet, buttressed in confidence by the opening salvo in the film about unprecedented police bungling and screw-ups; and in that moment he simply chose to move the story from having been accused of murder to having done it. It had nothing to do with references, specifically, to what he told the police in 2004.
[150] I do not know. In those circumstances, I simply cannot describe the causal connection as anything higher than weak or tenuous to moderate.
[151] With nil temporal connection, nil contextual connection, a weak to moderate causal connection, at best, and nothing else to tie the two sets of statements together, despite Mr. Gehl’s able submissions, I cannot accept that the 2004 confessions and the February 2013 admissions are part of the same transaction or course of conduct.
[152] As such, I conclude that the February 2013 admissions were not obtained in a manner that infringed or denied Mr. Ringel’s Charter rights, and the Defence tainting Application is therefore dismissed.
Issue Number Two: the Grant, supra Analysis
[153] It is unnecessary to address the second issue of whether the February 2013 admissions, if they were obtained in a manner that infringed Mr. Ringel’s Charter rights, ought to be excluded from the evidence at trial on the basis that their admission would bring the administration of justice into disrepute.
[154] If I am wrong on the first issue, however, for the assistance of any reviewing Court, I will say this. I would have admitted the February 2013 admissions in any event.
[155] I do not view the state conduct as serious. There is no evidence to suggest that they knew, at the time of the February 2013 admissions, and no reason to think that they ought to have known, that the playing of the CBC documentary was improper or even risky. The film was a public document readily available for anyone to see, including Mr. Ringel who had watched it before and was not particularly bothered by it, he told UC P.
[156] Even the Defence acknowledges the uniqueness/novelty of these facts.
[157] Mr. Gehl took me to a passage from the police preliminary inquiry evidence where it was admitted that there was direction received, presumably from a prosecutor, to try to extract the confession to murder from Mr. Ringel, again (after February 17-18, 2013), without relying at all or referencing the CBC film.
[158] I do not see that as evidence of bad faith. I see it as prosecutorial cautiousness, or “covering all the bases”, as suggested by Mr. Flumerfelt in his submissions. If that is speculative on my part, then so would be the finding of bad faith.
[159] The first factor favours admission of the evidence.
[160] The second factor, the impact on Mr. Ringel’s Charter-protected interests, favours exclusion of the February 2013 admissions. The evidence is conscriptive and may not necessarily have been inevitably discovered but for the use of the CBC film (and, hence, the 2004 confessions). I say may because, frankly, my gut instinct is that Mr. Ringel would have confessed to UC P. at some point.
[161] The third factor favours admission of the evidence. It is a very significant part of the case for the prosecution, likely critical. This is a first degree murder case. The evidence is detailed and has some indicia of reliability, although not as high as if there was other independent corroborative evidence like a body or remains, an eye witness, forensic evidence, or something else besides the words of Mr. Ringel.
[162] On balance, despite my assessment of the second factor, I would have declined to exclude the February 2013 admissions under section 24(2) of the Charter. Their admission would not bring the administration of justice into disrepute. Quite the opposite.
III. The Constitutional Question
The Relief Sought
[163] The Defence seeks a declaration that section 579(2) of the Criminal Code (“CCC”) is inconsistent with sections 7 and 11(b) of the Charter and is of no force or effect.
The Burden and Standard of Proof
[164] The onus of proof is on the Applicant, Mr. Ringel, on a balance of probabilities.
The Legislative Provisions
[165] Section 579(2) CCC must be read in conjunction with subsection (1), thus, I set out below both subsections.
579 (1) The Attorney General or counsel instructed by him for that purpose may, at any time after any proceedings in relation to an accused or a defendant are commenced and before judgment, direct the clerk or other proper officer of the court to make an entry on the record that the proceedings are stayed by his direction, and such entry shall be made forthwith thereafter, whereupon the proceedings shall be stayed accordingly and any recognizance relating to the proceedings is vacated.
(2) Proceedings stayed in accordance with subsection (1) may be recommenced, without laying a new information or preferring a new indictment, as the case may be, by the Attorney General or counsel instructed by him for that purpose giving notice of the recommencement to the clerk of the court in which the stay of the proceedings was entered, but where no such notice is given within one year after the entry of the stay of proceedings, or before the expiration of the time within which the proceedings could have been commenced, whichever is the earlier, the proceedings shall be deemed never to have been commenced.
[166] Section 7 of the Charter provides as follows.
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
[167] Section 11(b) of the Charter reads as follows.
Any person charged with an offence has the right to be tried within a reasonable time.
The Legal Issues
[168] In my view, there are three legal issues to be decided.
[169] First, does section 579(2) CCC violate the right to security of the person protected by section 7 of the Charter?
[170] Second, does section 579(2) CCC violate the right to be tried within a reasonable time protected by section 11(b) of the Charter?
[171] If the answers to both of those first two questions are “no”, then the Defence Application must be dismissed.
[172] If the answer to one of those first two questions is “yes”, then I must proceed to the third issue.
[173] The third issue is what remedy ought to be granted for the said violation – a declaration that section 579(2) CCC is of no force or effect, or reading-down the section so as to create a one-year limitation period within which a stayed prosecution may be recommenced (the latter is the alternative relief sought by the Applicant, Mr. Ringel).
[174] As part of this third issue, the Defence urges the Court to not withhold any remedy at all. In other words, the Defence, in its written submissions, argues that whatever Charter violation is found cannot be “saved” under section 1.
Analysis
A Preliminary Observation
[175] I begin with an important point that answers one of Mr. Gehl’s opening submissions when we commenced the pretrial Applications on June 6, 2016.
[176] It was submitted by the Defence that everyone thought this case was over/done when the stay was entered in October 2006. I disagree.
[177] Two things run against that submission: (i) the record at the time, and (ii) Mr. Ringel’s own comments to the UCs, many years later.
[178] As for the record at the time, the Crown’s comments at Court when the stay was entered make it clear that it was a 12-month stay. The Indictment was endorsed accordingly, specifying the twelve months.
[179] As for Mr. Ringel’s comments to the UCs, just one example will suffice. During the same apartment visit with UC P. when Mr. Ringel ultimately confessed to the murder, February 17-18, 2013, he expressly acknowledges (page 1971 PDF) that he could be charged again with Christine’s murder.
[180] Thus, although it was a huge victory for the Defence in 2006, I do not think that it is accurate to say that everyone thought the case was over, permanently.
What This Application is Not
[181] This Application is not framed as a classic abuse of process argument, whether under the common law or with regard to the principles of fundamental justice referred to in section 7 of the Charter.
[182] Leading cases in the area of abuse of process and the principles of fundamental justice, like the decisions of the Supreme Court of Canada in R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297 and R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566, have not been filed, cited or referred to in the Applicant’s materials.
[183] Apart from the laying of the charge in 2013, Mr. Ringel points to no specific police or prosecutorial conduct that undermines trial fairness or the integrity of the judicial process.
[184] For example, there is no suggestion by the Applicant that the Crown misled the Court in October 2006 and, in reality, the police and the prosecution always intended to proceed with the same evidence that was remaining after the Ruling, or even try to re-litigate the admissibility of the 2004 confessions.
[185] As another example, there is no suggestion by the Applicant that the evidence that existed when the current charge was laid in 2013 is the same as what existed in 2006.
[186] Rather, the sole focus of the Applicant is on section 579(2) CCC – it is the wording of that section itself, and the power that it confers on prosecutors, that the Defence attacks as being unconstitutional.
[187] In a nutshell, the argument is that section 579(2) CCC allows for the absurd: an endless string of stops and starts (stays being entered and new charges being laid, but for the same offence). That is a “statutorily entrenched abuse of process” that violates Mr. Ringel’s Charter-protected right to security of the person, and it permits a “never ending prosecution” that denies the Applicant his right to be tried within a reasonable period of time (those quotations are taken from Mr. Ringel’s written materials).
Issue Number One: Section 7 of the Charter
[188] In my view, the Defence Application fails on this issue.
[189] First, the question of whether section 579 CCC violates section 7 of the Charter has already been decided, albeit on a somewhat different framework.
[190] In R. v. Fortin, [1989] O.J. No. 123 (C.A.), the Court of Appeal for Ontario held that the unilateral power conferred on the Crown by the authority to stay a criminal proceeding does not violate the rights guaranteed by section 7.
[191] In R. v. Cunsolo, [2008] O.J. No. 3754 (S.C.J.), Justice Hill dealt with the interplay between section 579(2) CCC and section 7 of the Charter. His Honour referred to both Fortin, supra and a subsequent decision of the Court of Appeal for Ontario, R. v. Larosa, [2002] O.J. No. 3219.
[192] I set out here paragraphs 26 and 27 of Justice Hill’s decision.
Analysis
[26] Section 579 of the Code provides:
- (1) The Attorney General or counsel instructed by him for that purpose may, at any time after any proceedings in relation to an accused or a defendant are commenced and before judgment, direct the clerk or other proper officer of the court to make an entry on the record that the proceedings are stayed by his direction, and such entry shall be made forthwith thereafter, whereupon the proceedings shall be stayed accordingly and any recognizance relating to the proceedings is vacated.
(2) Proceedings stayed in accordance with subsection (1) may be recommenced, without laying a new information or preferring a new indictment, as the case may be, by the Attorney General or counsel instructed by him for that purpose giving notice of the recommencement to the clerk of the court in which the stay of the proceedings was entered, but where no such notice is given within one year after the entry of the stay of proceedings, or before the expiration of the time within which the proceedings could have been commenced, whichever is the earlier, the proceedings shall be deemed never to have been commenced.
[27] The following principles provide context for analysis of the applicant’s double jeopardy claim:
(1) The Attorney General stay pursuant to s. 579(1) of the Code is a core prosecutorial function attracting a high degree of deference from the courts:
…we believe the core elements of prosecutorial discretion encompass the following…the discretion to enter a stay of proceedings in either a private or public prosecution, as codified in the Criminal Code, R.S.C. 1985, c. C-46, ss. 579 and 579.1 … (Krieger v. Law Society of Alberta (2002), 2002 SCC 65, 168 C.C.C. (3d) 97 (S.C.C.) at 114-5)
(2) The authority of the Attorney General to unilaterally stay criminal proceedings is not per se unconstitutional:
We are not persuaded that, in its present form, s. 508 [579] violates the rights guaranteed by s. 7 of the Charter. The section is an adequate expression of the power which has always rested in the Attorney General and which is essential to the proper enforcement of criminal law. (R. v. Fortin, [1989] O.J. No. 123 (C.A.) at para. 1)
(3) With the entry of a s. 579(1) stay, there is no longer a restraint of liberty (custody or bail) relating to the stayed charge and such a stay “at least for the time being, eliminate[s] any possible criminal jeopardy” on that charge: R. v. Larosa (2002), 166 C.C.C. (3d) 449 (Ont. C.A.) at para. 38. At para. 41 of the Larosa decision, the court approved the following dicta in R. v. Smith (1992), 79 C.C.C. (3d) 70 (B.C.C.A.) at 80:
Here, the direction to the clerk of the court to enter a stay is a statutory administrative discretion given to the Attorney General which is outside the direction or control of the judge. That is what Beaudry tells us. When the stay has been entered there is no contest between the individual and the state. The prosecution has come to an end. The position of the accused as against the state is the same as if he had never been charged. The individual is not put at jeopardy by the stay. On the contrary, the jeopardy he faced as an accused in an ongoing prosecution has come to an end.
(4) Where, within one year of the stay, the Attorney General does not renew or recommence the proceeding pursuant to s. 579(2), “the proceedings shall be deemed never to have been commenced”. Where the one-year limit expires without recommencement of the proceedings, the accused is not acquitted or exonerated. An expired stay “is not the equivalent to an acquittal” and the accused is liable to further proceedings: K. Roach, Report Relating to Paragraph 1(f) of the Order in Council for the Commission of Inquiry into Certain Aspects of the Trial and Conviction of James Driskell, at pp. 13-4, 24-5; R. v. Spence (1919), 31 C.C.C. 365 (S.C. Ont.) at 374-5 (aff’d on appeal 31 C.C.C. 375 at 377 (Ont. C.A.); R. v. Burrows (1983), 6 C.C.C. (3d) 54 (Man. C.A.) at 67 (leave to appeal refused [1983] S.C.C.A. No. 298). At p. 17, Professor Roach correctly observes that a prosecutorial stay deprives an accused “of a verdict on the merits”, and at p. 58, “[i]t is possible to charge a person…because the prosecutorial stay…does not produce a plea of autrefois acquit”.
(5) As Prof. Roach notes at pp. 32 and 61 of his report, a prosecutorial stay is not infrequently employed where there is an ongoing police investigation. As a practical matter, in some instances, the authorities may uncover more widespread criminality than was immediately apparent at the outset of a criminal investigation. Fractured proceedings involving various accused and jurisdictions rarely serve the interests of justice.
(6) Where proceedings are recommenced within one year of the s. 579(1) stay, or thereafter by other proceedings, the court may be invited to consider whether the state conduct following the stay infringes s. 7 of the Charter, for example through abuse of process: Larosa, at para. 40; Smith, at 80; R. v. Fortin, at para. 1, 3; R. v. Scott, [1990] 3 S.C.R. 979 at 992.
[193] Mr. Gehl could argue, although this is not in the written submissions filed by the Applicant, that Fortin, supra is distinguishable on the basis that it did not deal directly with what is now subsection (2) of section 579 CCC, and that Cunsolo, supra is distinguishable because it was not a direct challenge to the constitutionality of section 579(2) CCC but rather an application to exclude evidence under section 24(2) of the Charter.
[194] The Defence might also submit, although it did not do so in the written materials, that Larosa, supra is distinguishable on the basis that it was not a direct challenge to the constitutionality of section 579(2) CCC but rather was, in part, an appeal by the accused of the trial judge’s dismissal of his request to set aside a stay of proceedings of his Canadian charges, which stay had been entered to permit the accused to be extradited and tried in Texas. The accused had argued that the stay was a breach of his section 7 Charter right to have his trial in Canada proceed to completion unless permanently terminated.
[195] For the sake of this analysis, I will assume that none of those three decisions dictates or is even directly relevant to the result of the Application before me. Their principles are relevant, however. And those principles result in the following findings.
[196] When the stay was imposed in October 2006, Mr. Ringel was not acquitted of the charge. He was not exonerated. The matter was not finally adjudged at all. There was no final disposition. As such, no legal impediment existed in instituting further proceedings against Mr. Ringel, after the expiration of the twelve months. Cunsolo, supra, at paragraph 27, clause 4.
[197] That reality described immediately above is not, per se, offensive. It is not offensive because the entry of the stay eliminated, at least temporarily, any possible criminal jeopardy on that charge. The liberty and security of the person rights of the accused, Mr. Ringel, were no longer engaged as any contest between him and the state had ended. Cunsolo, supra, at paragraph 27, clause 3.
[198] That non-offensive “reality” is section 579(2) CCC.
[199] State conduct post-stay is not immune from scrutiny, however. The police and/or the prosecution may do something after the stay is entered, whether before or after its expiration, that may be capable of infringing the section 7 Charter rights of the accused. For example, as was argued in Larosa, supra, perhaps the stay can be linked to an effort by the state to gain some tactical advantage over the accused, something that might lead to a finding of abuse of process.
[200] There is nothing of the sort here. Mr. Ringel has not made any such allegation.
[201] I follow Mr. Gehl’s argument, to a point. But then it crumbles. Let me be more specific and address the key submissions made in the Applicant’s written materials.
[202] The Defence submits that the right to security of the person protects against state inference with both physical and psychological integrity. I agree.
[203] The Defence submits that respect for human dignity and freedom from stigma are values underlying section 7 of the Charter. Again, I agree.
[204] The Defence submits that the overlong subjection of an individual to a pending criminal accusation is capable of threatening the concept of security of the person. Once again, I agree.
[205] The Defence submits that, therefore, section 579(2) CCC violates the security of the person guarantee protected by section 7 of the Charter. I wholly disagree.
[206] On the evidence before me, until he was arrested in 2013, after the stay was entered in October 2006, there was no continuing state inference with Mr. Ringel’s physical or psychological integrity or dignity, whether within or after the twelve-month period.
[207] Further, after the stay was entered, if anything, the stigma against Mr. Ringel lessened, not worsened. Just look at the CBC film: it portrays Mr. Ringel more as a victim of police bungling than as an alleged killer who beat the system.
[208] Finally, after the twelve months elapsed, at the latest, Mr. Ringel was not subjected to a pending criminal accusation.
[209] Thus, although I agree with the general principles outlined by Mr. Gehl in his written submissions regarding the ambit of section 7 of the Charter and the right to security of the person, I agree with the Crown, Mr. Campbell, that the application of those general principles to the facts here and to this impugned legislative provision lead to the conclusion that the Defence argument cannot succeed.
[210] Section 579(2) CCC does not violate section 7 of the Charter.
Issue Number Two: Section 11(b) of the Charter
[211] Inadvertently, the Defence written materials confuse “double jeopardy” with section 11(b) of the Charter. Out of caution, I will address both the right to be tried within a reasonable time, section 11(b), and the right to be protected against “double jeopardy”, section 11(h).
[212] On both points, the Defence Application fails.
[213] On the later, it simply does not apply. The express wording of section 11(h) does not include the stay that was entered in this case as Mr. Ringel was neither finally acquitted nor found guilty of the charge that was laid in 2004.
[214] On the former, anything prior to the laying of the current charge in 2013 is irrelevant for purposes of section 11(b). R. v. Kalanj (1989), 48 C.C.C. (3d) 459 (S.C.C.). Further, before February 28, 2013, Mr. Ringel was not “a person charged with an offence” within the opening words of section 11 of the Charter.
[215] There is no argument that Mr. Ringel’s right to be tried within a reasonable time, since February 28, 2013, has been infringed.
[216] Section 579(2) CCC does not violate section 11(b) or section 11(h) of the Charter.
Issue Number Three: Remedy
[217] If I am wrong on the first issue, for the assistance of any reviewing Court, I would have granted to the Applicant the alternative relief sought – reading-down section 579(2) CCC to permit only the recommencement of stayed proceedings within one year of the entry of the stay.
[218] There would have been no reason to go beyond that as the Defence takes no issue with that portion of the wording of the impugned provision that permits stayed proceedings to be recommenced within one year.
[219] It would have been pointless to suspend the declaration of invalidity of the offending portion of the impugned legislative provision because it would have been impossible for Parliament to fix it.
[220] Given the nature of the section 7 Charter breach, it would have been highly unusual and, in this case, unreasonable to withhold any remedy at all by relying on section 1 of the Charter.
[221] If I am wrong on the second issue, I would not have declared any part of the impugned legislative provision unconstitutional because it would have been unnecessary to do so. I would have simply found a violation of Mr. Ringel’s section 11(b) Charter right and permanently stayed the charge against him.
[222] It would have been silly to grant no remedy at all as a stay has long been considered the most appropriate, and the minimal, remedy available on a breach of section 11(b).
[223] If I had found a breach of section 11(h) of the Charter, I would have granted the same remedy as if I had found a breach of section 7, for the same reasons.
[224] The rationale for not granting the same remedy for a violation of section 11(b) as for a breach of section 7 or section 11(h) is simple. The breach of section 11(b) would have been on the basis of the unusual length of time between the entry of the stay in 2006 and the current charge being laid in 2013, a case-specific fact that would have made it unnecessary to strike down any part of section 579(2) CCC.
[225] On the other hand, the finding of a breach of either section 7 or section 11(h) would have had to include a finding that any situation where the same offence is charged again, after the expiration of a one-year stay, offends the Charter, and thus, no remedy short of striking down part of section 579(2) CCC would have been sufficient.
IV. Conclusion
[226] For all of these reasons, the two Defence Applications returnable in Owen Sound in June 2016 [tainting and the constitutional question regarding section 579(2) of the Criminal Code] are dismissed.
[227] I am pleased to have Mr. Gehl, Mr. Flumerfelt and Mr. Campbell involved in this case. They are most professional but, at the same time, sacrifice no passion or zeal on either side. I am grateful for their assistance, and look forward to our remaining time together.
Conlan J.
Released: June 28, 2016