R. v. Regan (G.A.), 2002 SCC 12

• Judge: McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.
• Court: Supreme Court (Canada)
• Case Date: February 14, 2002
• Jurisdiction: Canada (Federal)
• Citations: 2002 SCC 12;(2002), 201 N.S.R.(2d) 63 (SCC);49 CR (5th) 1;[2002] 1 SCR 297;JE 2002-377;209 DLR (4th) 41;201 NSR (2d) 63;[2002] ACS no 14;52 WCB (2d) 150;629 APR 63;91 CRR (2d) 51;161 CCC (3d) 97;282 NR 1;[2002] SCJ No 14 (QL);[2002] CarswellNS 61

R. v. Regan (G.A.) (2002), 201 N.S.R.(2d) 63 (SCC);

 629 A.P.R. 63

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2002] N.S.R.(2d) TBEd. FE.023

Gerald Augustine Regan (appellant) v. Her Majesty The Queen (respondent) and The Attorney General of Canada, The Attorney General of Quebec and The Attorney General for New Brunswick (intervenors)

(27541; 2002 SCC 12)

Indexed As: R. v. Regan (G.A.)

Supreme Court of Canada

McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.

February 14, 2002.

Summary:

The accused was charged with 18 counts of sexual offences by way of preferred indictment. The accused applied for a stay of proceedings on the ground of abuse of process (prosecutorial lack of objectivity), submitting that, inter alia, s. 7 of the Charter of Rights and Freedoms (principles of fundamental justice) was violated where the Crown failed to make an objective decision to prosecute.

The Nova Scotia Supreme Court, in a judgment reported [1998] N.S.R.(2d) Uned. 133, stayed nine of the 18 charges based on, inter alia, the Crown's lack of objectivity at the "charging stage". The court did not find that there could not be a fair trial on the stayed charges and did not find any improper purpose in preferring the direct indictment. There was also no finding of a likelihood of future Crown misconduct or that the loss of objectivity at the "charging stage" had an ongoing impact on the prosecution. The Crown appealed under s. 676(1) of the Criminal Code.

The Nova Scotia Court of Appeal, Freeman, J.A., dissenting, in a judgment reported 179 N.S.R.(2d) 45; 553 A.P.R. 45, allowed the appeal and held that the trial judge erred in staying the charges. A judicial stay was to be issued only in the clearest of cases and was intended to prevent harm to the integrity of the judicial system resulting in future harm if the prosecution continued. A stay was not meant to remedy a wrong already done unless the past prejudice suffered would be "manifested, perpetrated or aggravated" by the holding of the trial or its result. Continuation of the prosecution of the stayed charges would not manifest, perpetrate or aggravate the prejudice caused by the Crown's failure to properly exercise its discretion at the charging stage. The ongoing effects of the Crown's earlier failure to properly exercise its discretion ended when the Crown subsequently properly exercised its discretion in preferring a direct indictment. The accused appealed.

The Supreme Court of Canada, Iacobucci, Major, Binnie and Arbour, JJ., dissenting, dismissed the appeal. The court stated that "there was no abuse of process in this case. The pre-charge interviews were done in accordance with the common practice of some other provinces, a practice more wide-ranging than the narrow, exceptional to rare practice the trial judge described. ... I conclude that, based on the evidence of judge shopping, pre-charge Crown interviews, the improper police announcement, and the addition of count 16 in the direct indictment, the cumulative effect of these actions, while troubling in some respects, does not rise to the level of abuse of process which is egregious, vexatious, oppressive or which would offend the community's sense of decency and fair play. Moreover, this conduct, even if it did amount to an abuse, did not have an ongoing effect on the accused, which would jeopardize the fairness of his trial."

Civil Rights - Topic 3157.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Abuse of process - [See both Civil Rights - Topic 8374 ].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - The trial judge stayed nine of 18 counts of sexual offences for abuse of process, because of premature disclosure by police of the investigation, judge-shopping comments by Crown counsel, the loss of Crown objectivity at the charging stage and the laying of one count to bootstrap otherwise inadmissible similar fact evidence - The trial judge did not find improper Crown involvement in the investigation or anything improper in the police laying all 18 charges - A subsequent decision to prefer a direct indictment was not the result of mala fides or an improper purpose - The loss of Crown objectivity did not extend beyond the charging stage (Crown counsel was removed) - The Crown did not encourage police to lay more charges - There was no suggestion of an unfair trial - The Supreme Court of Canada affirmed that the trial judge erred in granting a stay - The court stated that "I conclude that, based on the evidence of judge shopping, pre-charge Crown interviews, the improper police announcement, and the addition of count 16 in the direct indictment, the cumulative effect of these actions, while troubling in some respects, does not rise to the level of abuse of process which is egregious, vexatious, oppressive or which would offend the community's sense of decency and fair play. Moreover, this conduct, even if it did amount to an abuse, did not have an ongoing effect on the accused, which would jeopardize the fairness of his trial." - The remedies of removing Crown counsel and the direct indictment (a fresh objective review of the charges) foreclosed a finding that the accused continued to face a prosecution that was abusive, vexatious, oppressive or in any way an affront to decency and fair play - See paragraphs 47 to 125.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - The Supreme Court of Canada stated that "regardless of whether the abuse causes prejudice to the accused, because of an unfair trial, or to the integrity of the justice system, a stay of proceedings will only be appropriate when two criteria are met: (1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and (2) no other remedy is reasonably capable of removing that prejudice. ... Only in 'exceptional', 'relatively very rare' cases will the past misconduct be 'so egregious that the mere fact of going forward in the light of it will be offensive' ... there may still be cases where uncertainty persists about whether the abuse is sufficient to warrant the drastic remedy of a stay. In such cases, a third criterion is considered. This is the stage whether a traditional balancing of interests is done: 'it will be appropriate to balance the interests that would be served by the granting of a stay of proceedings against the interest that society has in having a final decision on the merits'. In these cases, 'an egregious act of misconduct could [never] be overtaken by some passing public concern [although] ... a compelling societal interest in having a full hearing could tip the scales in favour of proceeding'" - See paragraphs 54 to 57.

Criminal Law - Topic 26.1

Prosecution of crime - Crown role at pre-charge stage - A senior Crown counsel, during a meeting with police, stated that the laying of charges should be delayed to avoid bringing the charges before a particular judge whom she feared might be sympathetic to the accused, the former premier of the province - Crown counsel further stated that she would continue to monitor the court docket, looking for a judge who would be more sympathetic to the laying of charges against the accused - The Supreme Court of Canada stated that even where the "judge shopping" was not acted upon, "it must be reasserted that judge shopping is unacceptable both because of its unfairness to the accused and because it tarnishes the reputation of the justice system" - See paragraphs 59 to 61.

Criminal Law - Topic 26.1

Prosecution of crime - Crown role at pre-charge stage - The Supreme Court of Canada stated that Crown objectivity and the separation of the Crown and police were essential elements of the judicial process - Police, not the Crown, were responsible for deciding which charges were to be laid - A distinct line between Crown and police functions did not preclude pre-charge Crown contact with potential witnesses - The court affirmed that pre-charge witness interviewing by the Crown did not inevitably result in the inability of the Crown to discharge its duties fairly and in the public interest - There was nothing inherently wrong with pre-charge interviews - Pre-charge interviews were properly used as pre-charge screening to protect the repute of the justice system and the personal interests of the accused and to assess witness credibility, demeanour and resolve, especially in sexual assault cases (particularly when charges were "historic" or the complainant was young) - The court stated that "the evidence shows that in some Canadian jurisdictions, pre-charge interviews by the Crown are a regular, even common practice. In these jurisdictions at least, it appears that public policy is served by the practice, and potentially harmful and arbitrary results are avoided by the refusal to draw a hard line at the decision to lay charges, before which Crown counsel may not interview complainants. Viewed in this context, I cannot conclude that wide-ranging pre-charge Crown interviews, per se, are an abuse of process." - See paragraphs 62 to 91.

Criminal Law - Topic 255

Abuse of process - Power of court - Re prevention and remedies - [See both Civil Rights - Topic 8374 ].

Practice - Topic 5277.1

Trials - Stay of proceedings - Abuse of process - [See both Civil Rights - Topic 8374 ].

Cases Noticed:

Canada (Minister of Citizenship and Immigration) v. Tobiass et al., [1997] 3 S.C.R. 391; 218 N.R. 81, refd to. [para. 17].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 49].

R. v. Power (E.), [1994] 1 S.C.R. 601; 165 N.R. 241; 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269, refd to. [para. 50].

R. v. Conway, [1989] 1 S.C.R. 1659; 94 N.R. 241; 34 O.A.C. 165, refd to. [para. 50].

R. v. Scott, [1990] 3 S.C.R. 979; 116 N.R. 361; 43 O.A.C. 277, refd to. [para. 50].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161, refd to. [para. 52].

United States of America v. Cobb et al., [2001] 1 S.C.R. 587; 267 N.R. 203; 145 O.A.C. 3, refd to. [para. 52].

Boucher v. R., [1955] S.C.R. 16, refd to. [para. 65].

R. v. Sheldon S., [1990] 2 S.C.R. 254; 110 N.R. 321; 41 O.A.C. 81, refd to. [para. 71].

R. v. S.S. - see R. v. Sheldon S.

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81, refd to. [para. 115].

R. v. Ewanchuk (S.B.), [1999] 1 S.C.R. 330; 235 N.R. 323; 232 A.R. 1; 195 W.A.C. 1, refd to. [para. 115].

R. v. Mills (B.J.), [1999] 3 S.C.R. 668; 248 N.R. 101; 244 A.R. 201; 209 W.A.C. 201, refd to. [para. 115].

R. v. Darrach (A.S.), [2000] 2 S.C.R. 443; 259 N.R. 336; 137 O.A.C. 91, refd to. [para. 115].

Elsom v. Elsom, [1989] 1 S.C.R. 1367; 96 N.R. 165, refd to. [para. 117].

Stein Estate v. Ship Kathy K, [1976] 2 S.C.R. 802; 6 N.R. 359, refd to. [para. 117].

R. v. Oickle (R.F.), [2000] 2 S.C.R. 3; 259 N.R. 227; 187 N.S.R.(2d) 201; 585 A.P.R. 201, refd to. [para. 117].

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 1; 130 W.A.C. 1, refd to. [para. 117].

R. v. Curragh Inc. et al., [1997] 1 S.C.R. 537; 209 N.R. 252; 159 N.S.R.(2d) 1; 468 A.P.R. 1, refd to. [para. 130].

Lemay v. R., [1952] 1 S.C.R. 232, refd to. [para. 137].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 137].

R. v. Carosella (N.), [1997] 1 S.C.R. 80; 207 N.R. 321; 98 O.A.C. 81, refd to. [para. 139].

Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321, refd to. [para. 140].

R. v. Bain, [1992] 1 S.C.R. 91; 133 N.R. 1; 51 O.A.C. 161, refd to. [para. 152].

Nelles v. Ontario et al., [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161, refd to. [para. 153].

R. v. Chamandy (1934), 61 C.C.C. 224, refd to. [para. 155].

R. v. G.D.B., [2000] 1 S.C.R. 520; 253 N.R. 201; 261 A.R. 1; 225 W.A.C. 1, refd to. [para. 157].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 157].

Sproule, Re (1886), 12 S.C.R. 140, refd to. [para. 165].

R. v. Jewitt, [1985] 2 S.C.R. 128; 61 N.R. 159, refd to. [para. 165].

R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; 88 N.R. 205, refd to. [para. 166].

R. v. Smythe, [1971] S.C.R. 680, refd to. [para. 166].

R. v. V.T., [1992] 1 S.C.R. 749; 134 N.R. 289; 7 B.C.A.C. 81; 15 W.A.C. 81, refd to. [para. 166].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271, refd to. [para. 166].

R. v. Keyowski, [1988] 1 S.C.R. 657; 83 N.R. 296; 65 Sask.R. 122, refd to. [para. 169].

R. v. Sweitzer, [1982] 1 S.C.R. 949; 42 N.R. 550; 37 A.R. 294, refd to. [para. 197].

R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81, refd to. [para. 197].

R. v. Osborn, [1971] S.C.R. 184, refd to. [para. 209].

R. v. Rourke, [1978] 1 S.C.R. 1021; 16 N.R. 181, refd to. [para. 209].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 24(1) [para. 47].

Criminal Code, R.S.C. 1985, c. C-46, sect. 577 [para. 47].

Authors and Works Noticed:

Canada, Law Reform Commission, Controlling Criminal Prosecutions: The Attorney General and the Crown Prosecutor (1990), Working Paper No. 62, p. 80 [para. 137].

Canadian Bar Association, Code of Professional Conduct (1987), ch. 9, s. 9 [para. 167].

Ghiz, J., and Archibald, B.P., Independence, Accountability and Management in the Nova Scotia Public Prosecution Service: A Review and Evaluation (1994), pp. 41, 42 [para. 183].

Nova Scotia, Royal Commission on the Donald Marshall, Jr., Prosecution (1989), vol. 1, Findings and Recommendations, pp. 227, 228, 232 [para. 66].

Nova Scotia, Solicitor General's Directive on Laying of Charges (1990), generally [para. 67].

Ontario, Commission on Proceedings Involving Guy Paul Morin (1998), vol. 2, pp. 909, 911, 1069, 1070 [para. 69].

Ontario, Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions (1993), pp. 39 [para. 158]; 117, 118 [para. 159].

Paciocco, David M., The Stay of Proceedings as a Remedy in Criminal Cases: Abusing the Abuse of Process Concept (1991), 15 C.L.J. 315, p. 350 [para. 221].

Quebec, Ministère de la Justice, Crimes à caractère: Guide du poursuivant, Direction générale des poursuites publiques, pp. 13, 27 [para. 76].

Counsel:

Edward L. Greenspan, Q.C., and Marie Henien, for the appellant;

Robert Morrison, Q.C., and Heather Leonoff, Q.C., for the respondent;

Robert J. Frater and Silvie Kovacevich, for the intervenor, Attorney General of Canada;

Mario Tremblay, for the intervenor, Attorney General of Quebec;

John J. Walsh, for the intervenor, Attorney General for New Brunswick.

Solicitors of Record:

Greenspan, Henein & White, Toronto, Ontario, for the appellant;

Department of Justice, Winnipeg, Manitoba, for the respondent;

Attorney General of Canada, Ottawa, Ontario, for the intervenor, Attorney General of Canada;

Attorney General of Quebec, Quebec City, Quebec, for the intervenor, Attorney General of Quebec;

Attorney General for New Brunswick, Miramichi, N.B., for the intervenor, Attorney General for New Brunswick.

This appeal was heard on March 15, 2001, before McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ., of the Supreme Court of Canada.

On February 14, 2002, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

LeBel, J. (McLachlin, C.J.C., L'Heureux-Dubé, Gonthier and Bastarache, JJ., concurring) - see paragraphs 1 to 125;

Binnie, J. (Iacobucci, Major and Arbour, JJ., concurring), dissenting - see paragraphs 126 to 232.