R. v. Regan (G.A.),

• Jurisdiction: Nova Scotia
• Judge: Freeman, Roscoe and Cromwell, JJ.A.
• Citation: (1999), 179 N.S.R.(2d) 45 (CA),1999 CanLII 7242 (NS CA),137 CCC (3d) 449,28 CR (5th) 1,[1999] NSJ No 293 (QL),179 NSR (2d) 45,553 APR 45
• Court: Court of Appeal of Nova Scotia (Canada)
• Date: 10 September 1999

R. v. Regan (G.A.) (1999), 179 N.S.R.(2d) 45 (CA);

    553 A.P.R. 45

MLB headnote and full text

Temp. Cite: [1999] N.S.R.(2d) TBEd. SE.022

Her Majesty The Queen (appellant) v. Gerald Augustine Regan (respondent) and The Attorney General of Canada (intervenor)

(C.A.C. No. 147242)

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

Nova Scotia Court of Appeal

Freeman, Roscoe and Cromwell, JJ.A.

September 10, 1999.

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 trial judge 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 state" 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, 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. The court held that 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.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - An accused was charged with 18 counts of sexual offences - The trial judge stayed nine counts for abuse of process because of public confirmation by police of the investigation, judge-shopping comments by the Crown and the loss of Crown objectivity at the charging stage - The trial judge did not find improper involvement in the investigation by the Crown 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 and an objective and fair-minded Crown could reasonably have formed the opinion that all 18 charges should be proceeded with - There was no finding that had Crown objectivity been retained at the charging stage that the charges would have been stayed - The Crown did not encour­age police to lay more charges - Proceed­ing with the nine charges would not result in an unfair hearing - The Nova Scotia Court of Appeal held that the trial judge erred in granting a stay - There was no likelihood of future misconduct and the past misconduct was not so egregious as to warrant a stay - See paragraphs 98 to 204.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - The Nova Scotia Court of Appeal stated that "if there can be a fair trial of the charge, a judicial stay should only be granted in rare and exceptional circumstances. ... a judicial stay is not a remedy for misconduct in the past by the Crown or the police. The purpose of a judicial stay is not to remedy past miscon­duct, but to prevent further damage to the integrity of the judicial process which will result if the prosecution is not stopped. It follows from this second principle that a judicial stay should only be granted if there will be continuing or ongoing harm to the integrity of the judicial process if the prosecution is allowed to proceed. To use the language of the cases, a stay should only be granted if the continuation of the prosecution will manifest, perpetrate or aggravate the prejudice caused by the abuse in question." - See paragraph 101.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - The Nova Scotia Court of Appeal stated that obtaining a stay of proceedings usually involved a two step process - First, the accused must show misconduct or other circumstances render­ing the con­tinuation of the prosecution damaging to the integrity of the judicial process - Second, the damage to the in­tegrity of the judicial process must be balanced against the societal interest in the effective pros­ecution of alleged crimes - The balance would be tipped in favour of a stay if "the prejudice caused by the abuse in question will be manifested, perpetrated or aggra­vated through the conduct of the trial, or by its outcome, and no other remedy is reasonably capable of removing that preju­dice" - The require­ment that the prejudice be manifested, perpetrated or aggravated through the conduct of the trial would be satisfied where there was a likelihood that state misconduct would be repeated in the future or in those rare cases where the past mis­conduct was "so egregious that the mere fact of going forward in light of it will be offensive" - See paragraphs 114 to 117.

Criminal Law - Topic 26.1

Prosecution of crime - Crown role at precharge stage - The Nova Scotia Court of Appeal stated that the responsibility and authority to decide to lay a criminal charge rested with the police - The Crown, upon request, was permitted to give legal advice to police during an investigation, including advice as to the strength of a case - If police laid a charge, the Crown had auth­ority to stay it - The court stated that "provided that the independence and dis­tinct roles of the police and the Crown are respected and that no improper purpose is being pursued, it is desirable for them to attempt to avoid unnecessary disagree­ments about whether charges should pro­ceed. ... there is nothing objectionable, let alone contrary to the Charter of Rights, in collaboration provided that the indepen­dence and distinctive roles of each are scrupulously respected and neither is im­properly motivated." - See paragraphs 153 to 156.

Criminal Law - Topic 26.1

Prosecution of crime - Crown role at precharge stage - The Nova Scotia Court of Appeal stated that a trial judge erred in finding that precharge witness interview­ing by the Crown inevitably resulted in the inability of the Crown to discharge its duties fairly and in the public interest - There was nothing inherently wrong with precharge interviews - An accused, charged with sexual offences, submitted that it was improper for the Crown to interview alleged victims to encourage them to come forward - The court stated that "particu­larly with respect to sexual offences in which victim confidence in the justice system appears to be especially low, there is nothing wrong with the Crown, by proper and ethical means, en­couraging alleged victims to proceed to court" - See paragraphs 157 to 164.

Criminal Law - Topic 255

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

Practice - Topic 5277.1

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

Cases Noticed:

R. v. Boucher (1954), 110 C.C.C. 263 (S.C.C.), refd to. [para. 14].

R. v. Boutilier (R.E.) (1995), 147 N.S.R.(2d) 200; 426 A.P.R. 200; 104 C.C.C.(3d) 327 (C.A.), refd to. [para. 29].

R. v. Jans (1990), 108 A.R. 324 (C.A.), refd to. [para. 30].

R. v. Kelly (P.W.) (1998), 112 O.A.C. 55; 128 C.C.C.(3d) 206 (C.A.), refd to. [para. 30].

R. v. Parkin (1986), 14 O.A.C. 150; 28 C.C.C.(3d) 252 (C.A.), refd to. [para. 30].

R. v. Gordon (B.) et al. (1999), 94 O.T.C. 305 (Gen. Div.), refd to. [para. 31].

R. v. Buric (G.J.) et al. (1996), 90 O.A.C. 321; 106 C.C.C.(3d) 97 (C.A.), refd to. [para. 42].

R. v. Scott, [1990] 3 S.C.R. 979; 116 N.R. 361; 43 O.A.C. 277; 61 C.C.C.(3d) 300, refd to. [para. 66].

R. v. Rourke (1977), 16 N.R. 181; 35 C.C.C.(2d) 129 (S.C.C.), refd to. [para. 70].

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. 72].

Connelly v. Director of Public Prosecu­tions, [1964] A.C. 1254 (H.L.), refd to. [para. 72].

Hunter v. Chief Constable of the West Mid­lands Police, [1982] A.C. 529 (H.L.), refd to. [para. 74].

R. v. Askov, Hussey, Melo and Gugliotta, [1990] 2 S.C.R. 1199; 113 N.R. 241; 42 O.A.C. 81; 59 C.C.C.(3d) 449; 79 C.R.(3d) 273; 49 C.R.R. 1; 74 D.L.R.(4th) 355; 75 O.R.(2d) 673, refd to. [para. 76].

R. v. Stinchcombe, [1995] 1 S.C.R. 754; 178 N.R. 157; 162 A.R. 269; 83 W.A.C. 269, refd to. [para. 76].

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; 89 C.C.C.(3d) 1, refd to. [para. 79].

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. 97].

Elsom v. Elsom (1989), 96 N.R. 165 (S.C.C.), refd to. [para. 97].

Canada (Minis­ter of Citizen­ship and Immi­gration) v. Tobiass et al., [1997] 3 S.C.R. 391; 218 N.R. 81; 118 C.C.C.(3d) 443, refd to. [para. 107].

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. 110].

R. v. Latimer (R.W.), [1997] 1 S.C.R. 217; 207 N.R. 215; 152 Sask.R. 1; 140 W.A.C. 1, refd to. [para. 110].

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. 113].

R. v. Conway, [1989] 1 S.C.R. 1659; 96 N.R. 241; 34 O.A.C. 165; 49 C.C.C.(3d) 289; 70 C.R.(3d) 209, refd to. [para. 114].

R. v. Campbell (J.) and Shirose (S.), [1999] 1 S.C.R. 565; 237 N.R. 86; 119 O.A.C. 201, refd to. [para. 114].

R. v. Mack, [1988] 2 S.C.R. 903; 90 N.R. 173; [1989] 1 W.W.R. 577; 44 C.C.C.(3d) 513; 67 C.R.(3d) 1, refd to. [para. 118].

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. 138].

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; 103 C.C.C.(3d) 1, refd to. [para. 175].

R. v. Young (1984), 3 O.A.C. 254; 13 C.C.C.(3d) 1 (C.A.), dist. [para. 176].

R. v. Regan (G.A.) (1998), 174 N.S.R.(2d) 193; 532 A.P.R. 193; 131 C.C.C.(3d) 286 (S.C.), refd to. [para. 187].

Authors and Works Noticed:

Greenspan, Edward L., and Jonas, George, Greenspan The Case for the Defence 91987), p. 16 [para. 160].

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. 340 [para. 121].

Ripley, Donald F., Bagman, An Insider's View of Nova Scotia Politics, generally [para. 21].

Roach, Kent, The Evolving Test for Stays of Proceedings (1998), 40 Crim. L.Q. 399, p. 433 [para. 110].

Counsel:

Jack Watson, Q.C., for the appellant;

Edward L. Greenspan, Q.C., Marie Henein and Andrew Matheson, for the respon­dent;

Robert Frater, for the intervenor.

This appeal was heard on May 27-28, 1999, before Freeman, Roscoe and Cromwell, JJ.A., of the Nova Scotia Court of Appeal.

On September 10, 1999, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Freeman, J.A., dissenting - see para­graphs 1 to 97;

Cromwell, J.A. (Roscoe, J.A., concur­ring) - see paragraphs 98 to 204.