COURT FILE NO.: CR-14-40000082
DATE: 20180306
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DAYAN SABANDO-PAREDES
Applicant/Accused
F. Schembri, for the Crown
R. Rusonik, for the Applicant/Accused
HEARD: December 15, 2017
Reasons for judgment
Ducharme J.
Overview of the Application
[1] The accused, Mr. Sabando-Paredes and Ms. Durant, had pleaded not guilty to an indictment charging him with five criminal offences, all flowing from the results of the execution of a search warrant at their apartment at 1277 Wilson Road, Apt. 419. During the execution of this search warrant, the police discovered various narcotics, and a loaded firearm.
[2] The accused brought an application seeking the exclusion of this evidence, pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms, on the basis that the search warrant was obtained and executed by the police in violation of his right to be secure against unreasonable search and seizure, protected by s. 8 of the Charter of Rights.
[3] On March 31, 2016, I found a violation of s. 8 of the Charter for both accused due to manipulation of the crime scene by the police and a violation of Mr. Sabando-Paredes’ 10(b) rights. As a result, I excluded the evidence of Ms. Durant’s driver’s license on the headboard of the bed and Mr. Sabando-Paredes’ health card next to the baby wipes box. Similarly, due to the violation of Mr. Sabando-Paredes’ rights under s. 10 (b) of the Charter, I excluded any evidence of Mr. Sabando-Paredes’ utterances or gestures during the search. But otherwise, despite the violations of section 8 and s. 10(b) that I had found, I did not exclude the products of the search, in particular the gun, ammunition and narcotics.
[4] The first trial resulted in a mistrial. Since then Ms. Durant has died. On November, 17, 2016, with different counsel, Mr. Sabando-Paredes sought to re-litigate the s. 24(2) issue to have all photos and other documentation relating to him that were found in the apartment excluded. I rejected that application. Mr. Sabando-Paredes has again changed counsel and now brings an application seeking a stay of the charges. In the alternative, he seeks an order excluding photos and other documentation relating to him in the apartment. I will deal with these two applications in turn.
Section 24(1) – Staying of the Charges
[5] The application for a stay is based on my previous finding that the crime scene had been manipulated by the police insofar as Ms. Durant’s driver’s licence was placed on the headboard of the bed and Mr. Sabando-Paredes’ health card was placed next to a box of baby wipes. In making this ruling I stated, “I am unable to determine which police officers did this but I am satisfied that this was done during the course of the search.” I analyzed this as follows:
The applicants have satisfied me on a balance of probabilities that Ms. Durant’s driver’s licence was placed on the headboard and Mr. Sabando-Paredes’ health card was placed next to the baby wipes box by one of the police involved in the search. The police are expected to investigate crime in a professional, thorough and objective way. Tampering with a crime scene to make it appear more incriminating is not only a violation of s. 8, but it might lead as well to a violation of the right to a fair hearing guaranteed by s. 11(d) of the Charter.
On the record before me I am unable to determine if there was any further manipulation of the crime scene. However, I am satisfied that the police did not plant the firearm, the ammunition or the narcotics.
I later stated, “the violation of s. 8 as a result of manipulation of the crime scene by the police is very serious.” I also concluded that, “There is no other evidence being led against the two applicants which might have been manipulated by the police and, as I have already concluded, I do not believe that either the firearm, the ammunition or the narcotics were planted.”
[6] Mr. Rusonik forcefully submits that manipulation of a crime scene demonstrates a profound contempt for the administration of justice and also means that the officer or officers involved in the staging must have been prepared to perjure themselves at the trial. He submits that this egregious conduct on the part of the state has not been denounced, rather all that has been done is that a Charter breach has been remedied. There is no alternative remedy to a stay and he submits that irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were to continue.
[7] In R v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297 the Supreme Court recognized that a judicial stay of proceedings has been recognized as an extraordinary remedy that should only be granted in the “clearest of cases.” This standard is only met where the prejudice to the accused’s right to a fair trial cannot be remedied, or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were to continue. A stay should only be granted where it is plainly shown that the alleged conduct violates fundamental principles of justice which underlie the community’s sense of fair play.[^1]
[8] There are two categories of abuse of process cases: (1) the main category involves cases in which the state conduct compromises the fairness of the accused’s trial and (2) the residual category which involves cases in which the states conduct risks undermining the integrity of the judicial process. This application deals with the residual category as no fair trial considerations are engaged by the breach as I have already remedied that in my prior Charter ruling.
[9] In R. v. Babos[^2] the Supreme Court at paragraph 32 summarized the factors that should be considered in either type of an abuse of process case:
(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” (Regan, at para. 54);
(2) There must be no alternative remedy capable of redressing the prejudice; and
(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits” (ibid., at para. 57).
Step 1
[10] The Supreme Court in Babos at paragraph 35 stated that the question to ask in step one, when the residual category is invoked is;
[w]hether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution of offences. At times, state conduct will be so troublesome that having a trial -- even a fair one -- will leave the impression that the justice system condones conduct that offends society's sense of fair play and decency. This harms the integrity of the justice system. In these kinds of cases, the first stage of the test is met.
Step 2
[11] The Supreme Court in Babos at paragraph 39 said the following about step 2 in the residual category:
Where the residual category is invoked, however, and the prejudice complained of is prejudice to the integrity of the justice system, remedies must be directed towards that harm. It must be remembered that for those cases which fall solely within the residual category, the goal is not to provide redress to an accused for a wrong that has been done to him or her in the past. Instead, the focus is on whether an alternate remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward.
Step 3
[12] Finally at paragraphs 40 to 44, of Babos, the Supreme Court said the following about Step 3:
Finally, the balancing of interests that occurs at the third stage of the test takes on added significance when the residual category is invoked. This Court has stated that the balancing need only be undertaken where there is still uncertainty as to whether a stay is appropriate after the first two parts of the test have been completed (Tobiass, at para. 92).
However, when the residual category is invoked, the balancing stage takes on added importance. Where prejudice to the integrity of the justice system is alleged, the court is asked to decide which of two options better protects the integrity of the system: staying the proceedings, or having a trial despite the impugned conduct. This inquiry necessarily demands balancing. The court must consider such things as the nature and seriousness of the impugned conduct, whether the conduct is isolated or reflects a systemic and ongoing problem, the circumstances of the accused, the charges he or she faces, and the interests of society in having the charges disposed of on the merits. Clearly, the more egregious the state conduct, the greater the need for the court to dissociate itself from it. When the conduct in question shocks the community's conscience and/or offends its sense of fair play and decency, it becomes less likely that society's interest in a full trial on the merits will prevail in the balancing process. But in residual category cases, balance must always be considered.
Undoubtedly, the balancing of societal interests that must take place and the "clearest of cases" threshold presents an accused who seeks a stay under the residual category with an onerous burden. Indeed, in the residual category, cases warranting a stay of proceedings will be “exceptional” and "very rare" (Tobiass, at para. 91). But this is as it should be. It is only where the "affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases" that a stay of proceedings will be warranted (R. v. Conway, 1989 CanLII 66 (SCC), [1989] 1 S.C.R. 1659, at p. 1667).
Application to the Case at Bar
[13] In applying the first step in Babos I accept that the manipulation of a crime scene is offensive to societal norms of fair play and decency. However, as I noted in my original ruling, the manipulation in this case had little or no impact on the applicants. But I am also of the view that, with the exclusion of evidence that I ordered in my first ruling, that a fair trial is possible. The question then becomes whether proceeding with that fair trial would “leave the impression that the justice system condones conduct that offends society’s sense of fair play and decency.” I do not think that it would create such an impression. In my original ruling I was critical of the actions of the police and made it clear that such behavior was unacceptable. I think this makes it clear that by having a new, fair trial the court is not condoning conduct that offends society's sense of fair play and decency. Moreover, my earlier exclusion of the evidence, while directed primarily towards remedying the violation of the accused person’s Charter rights, will have the secondary effect of making it clear that these Charter violations are not condoned in any way. This is similar to Babos where the Supreme Court of Canada said that excluding a gun from a trial remedied any prejudice caused to the justice system as a result of the trial Judge’s finding that two police officers had colluded to mislead the court.
[14] With respect to the second step in Babos, I concede that there is no alternative remedy with respect to the prejudice to the integrity of the justice system. However, this is not a concern since I have already concluded under step one that continuing with the trial would not create the impression that the justice system condones conduct that offends society's sense of fair play and decency.
[15] Given, my conclusion that a stay is not appropriate after steps one and two, there is no need to engage in step three of Babos. However, if I were to engage in step three, I would find that balancing the gravity of the police misconduct against the broader societal interest in having the case disposed of on its merits makes it clear that this is not one of the “exceptional” or “very rare” cases in which a stay would be appropriate.
Section 24(2) – Exclusion of Other Evidence
[16] This can be dealt with relatively briefly. As the Crown correctly points out this was argued before me when I heard the application and I declined to exclude these items. The matter was addressed a second time when Mr. Sabando-Paredes sought to re-litigate the s. 24(2) ruling. Mr. Sabando-Paredes’ new counsel, Mr. Rusonik, again seeks to re-argue my ruling suggesting that I did not properly apply the first and third factors outlined in R. v. Grant. He also submits that the Court of Appeal decision in R. v. Pino changes how s. 24(2) should be applied in this case.
[17] I reject the suggestion that there is any basis to re-litigate this issue. I also reject the suggestion that I did not properly apply the factors outlined in Grant. Finally, I do not think that the decision in Pino changes the law such that I should reconsider my previous ruling.
[18] For the foregoing reasons, I would reject the applicant’s attempt to re-litigate this issue.
Conclusion
[19] For the foregoing reasons, I would dismiss the application.
DUCHARME J.
Released: March 6, 2018
COURT FILE NO.: CR-14-40000082
DATE: 20180306
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DAYAN SABANDO-PAREDES
Applicant/Accused
Reasons for judgment
DUCHARME J.
Released: March 6, 2018
[^1]: R v. Regan, supra at paras 53 to 57.
[^2]: R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309.