R. v. Naoufal (N.), (1994) 70 O.A.C. 214 (CA)

• Judge: Brooke, Labrosse and Doherty, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 21, 1994
• Jurisdiction: Ontario
• Citations: (1994), 70 O.A.C. 214 (CA)

R. v. Naoufal (N.) (1994), 70 O.A.C. 214 (CA)

MLB headnote and full text

Her Majesty The Queen (appellant) v. Ali Dikah and Naoufal Naoufal (respondents)

(C15629)

Indexed As: R. v. Naoufal (N.)

Ontario Court of Appeal

Brooke, Labrosse and Doherty, JJ.A.

April 27, 1994.

Summary:

The accused were charged with trafficking in cocaine. All charges involved alleged sales of cocaine to a paid police agent. During trial, the accused moved for a stay of proceedings, alleging that the terms of the agent's agreement with the police ren­dered any proceedings based on his alleged pur­chases of cocaine from the accused an abuse of process or a breach of the accused's s. 7 Charter rights. The trial judge held that the accused's s. 7 Charter rights were viol­ated and stayed proceedings under s. 24 of the Charter. The Crown appealed the stay. One of the accused, Dikah, died and there­fore, only the appeal from the stay against the accused, Naoufal, proceeded.

The Ontario Court of Appeal allowed the appeal, set aside the stay and ordered a new trial before a different trial judge.

Civil Rights - Topic 3157.2

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Police agents - An agent agreed in writing to assist the police in investigating certain drug trafficking activities - The agent purchased cocaine from the accused - The accused was charged with trafficking - The trial judge interpreted the agreement as being a prom­ise to pay the agent if he gathered evi­dence sufficient to lay charges - The judge held that the agreement was contrary to s. 7 of the Charter and stayed pro­ceed­ings under s. 24 - The Ontario Court of Appeal set aside the stay - The court stated that the agreement did not violate the principles of fundamental justice and would only affect the weight of the agent's testimony in conjunction with all other relevant factors affecting credibility.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 3157.2 ].

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - [See Civil Rights - Topic 8585 ].

Civil Rights - Topic 8585

Canadian Charter of Rights and Freedoms - Practice - Time for deciding Charter issues - A police agent purchased cocaine from the accused - The accused was charged with trafficking - During trial, before the Crown had completed its case, the accused moved for a stay, arguing that proceedings based on the agreement between the agent and the police violated his Charter rights - The trial judge heard the motion and stayed proceedings - The Ontario Court of Appeal stated that a trial judge has discretion as to when in the proceedings a Charter motion will be heard and decided and that the judge could not be criticized in this case where neither party objected - However, for future guid­ance, the court suggested how such motions should be handled - See para­graph 33.

Cases Noticed:

R. v. Rothman (1981), 35 N.R. 485; 59 C.C.C.(2d) 30 (S.C.C.), refd to. [para. 21].

R. v. Scott, [1990] 3 S.C.R. 979; 116 N.R. 361; 43 O.A.C. 277; 61 C.C.C.(3d) 300; 2 C.R.(4th) 53, refd to. [para. 21].

R. v. Mack, [1988] 2 S.C.R. 903; [1989] 1 W.W.R. 577; 90 N.R. 173; 44 C.C.C.(3d) 513; 67 C.R.(3d) 1, refd to. [paras. 21, 40].

R. v. Kirzner, [1978], 2 S.C.R. 487; 18 N.R. 400; 38 C.C.C.(2d) 131, refd to. [para. 21].

R. v. Amato, [1982] 2 S.C.R. 418; 42 N.R. 487; 69 C.C.C.(2d) 31, refd to. [para. 21].

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606; [1983] 1 W.W.R. 193; 27 C.R.(3d) 304; 136 D.L.R.(3d) 89; 67 C.C.C.(3d) 1, refd to. [para. 23].

R. v. Xenos (1991), 43 Q.A.C. 212; 70 C.C.C.(3d) 362 (C.A.), dist. [paras. 29, 46].

Williamson v. United States (1962), 331 F.2d 441 (U.S.C.A. 5th Cir.), refd to. [para. 30].

United States v. Cervantes-Pacheco (1987), 826 F.2d 310 (U.S.C.A. 5th Cir.), refd to. [para. 30].

R. v. Jewitt, [1985] 2 S.C.R. 128; 61 N.R. 159; [1985] 6 W.W.R. 127; 21 C.C.C.(3d) 7; 20 D.L.R.(4th) 651; 47 C.R.(3d) 193, refd to. [para. 31].

R. v. DeSousa, [1992] 2 S.C.R. 944; 142 N.R. 1; 56 O.A.C. 109; 76 C.C.C.(3d) 124, refd to. [para. 33].

R. v. D'Amico (1993), 67 O.A.C. 396; 16 O.R.(3d) 125 (C.A.), refd to. [para. 39].

United States v. Hodge (1979), 594 F.2d 1 (U.S.C.A. 8th Cir.), refd to. [para. 39].

R. v. Keyowski, [1988] 1 S.C.R. 657; 83 N.R. 296; 65 Sask.R. 122; 32 C.R.R. 269; 40 C.C.C.(3d) 481; 62 C.R.(3d) 349; [1988] 4 W.W.R. 97, refd to. [para. 43].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 24(1) [para. 2].

Counsel:

Scott K. Fenton, for the appellant;

Gregory LaFontaine, for the respondent, Naoufal Naoufal.

This appeal was heard on February 21, 1994, before Brooke, Labrosse and Doherty, JJ.A., of the Ontario Court of Appeal. The decision of the court was released on April 27, 1994, including the following opinions:

Labrosse, J.A. (Brooke, J.A., concurring) - see paragraphs 1 to 34;

Doherty, J.A., concurring reasons - see paragraphs 35 to 48.