R. v. Bellusci , 2012 SCC 44, R. v. Bellusci, 2012 SCC 44, 2012 SCC 44 (2012)

Docket Number:34054
 
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SUPREME COURT OF CANADA

Citation: R. v. Bellusci, 2012 SCC 44

Date: 20120803

Docket: 34054

Between:

Riccardo Bellusci

Appellant and

Her Majesty The Queen

Respondent

- and -

Attorney General of Ontario

Intervener

Coram: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Moldaver and Karakatsanis JJ.

Reasons for Judgment:

(paras. 1 to 47)

Fish J. (McLachlin C.J. and LeBel, Deschamps, Abella, Moldaver and Karakatsanis JJ. concurring)

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.

r. v. bellusci

Riccardo Bellusci Appellant v.

Her Majesty The Queen Respondent and

Attorney General of Ontario Intervener

Indexed as: R. v. Bellusci

2012 SCC 44

File No.: 34054.

2012: February 16; 2012: August 3.

Present: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Moldaver and Karakatsanis JJ.

on appeal from the court of appeal for quebec

Constitutional law - Charter of Rights - Remedy - Stay of proceedings - Accused prisoner and prison guard both suffering injuries as a result of altercation - Accused charged with assault and intimidation of a justice system participant - Trial judge acquitting accused of assault charges and staying charge of intimidation of a justice system participant on ground that his section 7 Charter rights had been breached - Whether stay of proceedings was a proper remedy - Canadian Charter of Rights and Freedoms, s. 24(1).

Criminal law - Appeals - Powers of Court of Appeal - Court of Appeal overturning stay of proceedings entered by trial judge and remitting matter back to trial court for continuation of trial - Whether Court of Appeal erred in interfering with trial judge's decision to grant stay - Whether Court of Appeal has power to order continuation of trial - Criminal Code, R.S.C. 1985, c. C-46, ss. 686(4), 686(8).

B, a prisoner, was charged with assault causing bodily harm, assault of a peace officer and intimidating a justice system participant following an altercation with A, a prison guard, during which both men suffered injuries. The trial judge acquitted B of both charges of assault and entered a stay of proceedings on the charge of intimidating a justice system participant on the ground that B's rights under s. 7 of the Charter had been violated. The Court of Appeal quashed the stay and remitted the matter to the trial court for continuation of B's trial.

Held: The appeal should be allowed and the stay of proceedings entered by the trial judge should be restored.

Section 24(1) of the Charter vests in trial judges broad discretion in granting "such remedy as the court considers appropriate and just in the circumstances". It is well established that remedies granted by trial judges under s. 24(1) should be disturbed on appeal only where trial judges misdirect themselves or their decision is so clearly wrong as to amount to an injustice. Absent an error of law or reviewable finding of fact, appellate courts must defer to the broad discretion vested in trial judges by s. 24(1) of the Charter.

The trial judge in this case carefully and correctly considered all the relevant principles. He assessed the gravity of the prejudice and explained why he thought alternative remedies were inadequate. He did not misdirect himself on the applicable law or commit a reviewable error of fact. His exercise of discretion to grant a stay of proceedings was not so clearly wrong as to amount to an injustice. It is clear from his analysis that he felt that the Charter breach in issue here fell within the "residual" and "exceptional" category of cases where the misconduct was so egregious that the mere fact of going forward in the light of it will be offensive. Having found that B had been provoked and subjected by a state actor to intolerable physical and psychological abuse, it was open to the trial judge to stay the proceedings against him. Appellate intervention in these circumstances was therefore unwarranted.

A court of appeal, upon setting aside a stay of proceedings, may in appropriate circumstances remit the matter to the trial court for continuation of the trial, pursuant to ss. 686(4) and 686(8) of the Criminal Code. In allowing an appeal and setting aside an acquittal or a stay of proceedings, the court exercises a power under s. 686(4). An appellate court need not order a new trial or enter a verdict of guilty in order to trigger the application of s. 686(8), which depends only on the exercise of any of the powers conferred by s. 686(4).

Cases Cited

Referred to: R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297; Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391; R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651; R. v. Walcott (2008), 57 C.R. (6th) 223; R. v. Maskell, 2011 ABPC 176, 512 A.R. 372; R. v. Jackson, 2011 ONCJ 228, 235 C.R.R. (2d) 289; R. v. Mohmedi, 2009 ONCJ 533, 72 C.R. (6th) 345; R. v. J.W., 2006 ABPC 216, 398 A.R. 374; R. v. R.L.F., 2005 ABPC 28, 373 A.R. 114; R. v. Wiscombe and Tenenbein, 2003 BCPC 418 (CanLII); R. v. Murphy (2001), 29 M.V.R. (4th) 50; Spannier v. R., 1996 CanLII 978; R. v. Jewitt, [1985] 2 S.C.R. 128; R. v. Hinse, [1995] 4 S.C.R. 597; R. v. Provo, [1989] 2 S.C.R. 3; R. v. Yelle, 2006 ABCA 276, 397 A.R. 287; R. v. Smith, 2004 SCC 14, [2004] 1 S.C.R. 385; R. v. Thomas, [1998] 3 S.C.R. 535.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 7, 24(1).

Criminal Code, R.S.C. 1985, c. C-46, ss. 423.1(1)(b), (2)(a), 686(4), (8).

APPEAL from a judgment of the Quebec Court of Appeal (Morissette, Giroux and Gagnon JJ.A.), 2010 QCCA 2118, 83 C.R. (6th) 388, [2010] Q.J. No. 11919 (QL),...

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