The permissible uses and dangers of using religious beliefs as evidence in criminal trials from Issues in Criminal Trials and Summary Appeal Law, 2nd Edition

Rule[1] 1: Is each offence deserving of its own period of imprisonment in accordance with the principle of proportionality?

 

1.  In the seminal decision of Paul v. R^[2], the Supreme Court of Canada held that if there are multiple offences and each offence is deserving of its own period of imprisonment, each offence should be sentenced in proportion to its gravity through the imposition of consecutive sentences^[3]. The rationale for consecutive sentences is that “The punishment must be proportioned to the specific offence contained in the record, upon which the judgment is then to be pronounced; and must be neither longer nor shorter, wider nor narrower, than that specific offence deserves. The balance is to be held with a steady even hand; and the crime and the punishment are to counterpoise each other; and a judgment given, or to be given against the same person for a distinct offence, is not to be thrown into either scale, to add an atom to either^[4].” In recent cases, this rule has been expressed as the accused not getting a “free ride” for any offence regardless of how the sentence is implemented^[5]. This rule makes the most sense. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system. Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other^[6]. Recently, in the context of the law on concurrent versus consecutive sentences, the Manitoba Court of Appeal, the Prince Edward Island Court of Appeal, and the Alberta Provincial Court have recognized that regardless of how the sentences are framed, the sentence must reflect proportionality (the gravity of the offence and the moral blameworthiness of the offender)^[7]. The approach of imposing consecutive sentences is, however, also favourable to the accused because if concurrent sentences are imposed for multiple offences a judge may impose a higher sentence than would have been imposed for each of the offences individually. As the Supreme Court noted:

 

Indeed, if a judge, when imposing sentences of imprisonment for many offences, is of the view that a person should in the interest of society be incarcerated for a given period of time, he will, within the limits permitted by the law, arrange the sentences to achieve what he considers that just and fair result. This he will do through consecutive sentencing, if permitted by the law. If consecutive sentencing is not available for what he justifiably might consider shortcomings of the law for technical reasons, he will achieve the imposition of that no less just and desirable period of incarceration through other means, all equally legal. Considering the high level at which sentences are set out in the Code, all he then need do is to impose for the latter conviction a sentence the length of which will correspond to the time he thinks the accused should serve for his offences. Not being able to fulfil what he rightly considers to be his duty through the imposition of consecutive sentences, for reasons he considers purely technical (and justifiably so, in my view), he will do so in that way. At the same time, however, the judge will be imposing for the latter offence, in order to achieve the desirable and just aggregate result, a sentence the severity of which is, even in his own view, much more than that required for that offence when considering that offence in isolation. This is undesirable, as each offence should at the outset be punished individually and in proportion to its seriousness. If each offence is deserving of its own period of imprisonment, the proper method for achieving this when sentencing the accused is not by sentencing one of the offences out of proportion to its gravity, but through the imposition of consecutive sentences.

 

Undesirable as a method, there is also danger in proceeding by higher concurrent sentences, for, if the conviction for the first offence is subsequently quashed on appeal, the accused will still, in effect, serve a sentence for that offence by serving the longer latter concurrent sentence. These two reasons might, to some, seem far-fetched. But it was precisely for these concerns and upon those rationales that Their Lordships in the House of Lords in R. v. Wilkes (1770), 4 Burr. 2527, 19 State Tr. 1075, 98 E.R. 327, rested and developed the very power for judges to impose imprisonment to be served consecutively. Construing the section in favour of the accused does not of necessity support restricting the discretion given judges to resort to consecutive sentencing; it is not paradoxical to say that accused persons in general might well be more favourably treated by giving the words of the section a meaning that favours the exercise of the power^[8].

 

Rule 2:  Are the offences part of the same event?

2. While this is often not a simple issue to decide, the basic or general rule is that if the offences are sufficiently interrelated to form part of one single, continuous criminal transaction, a concurrent sentence is called for. However, if the offences are separate and distinct, then a consecutive sentence is to be imposed^[9].  The problem with this test, as discussed below, is that it is the same test as Kienapple: if the factual and legal nexus between the offences are the same then one of the charges should be stayed rather than imposing a concurrent sentence. There is no need for this rule given the test in Paul v. R[10] on when to impose consecutive sentences.

Is this test different from the test in Kienapple that requires both a factual and legal nexus between the offences or is factual nexus alone sufficient?

 

3. The test is the same as in Kienapple requiring both a factual and legal nexus for concurrent sentences[11]. The facts of R v. Prince^[12] are illustrative of how the same factual nexus between two offences may not be sufficient to prevent multiple convictions and consecutive sentences if there are multiple victims of the same act. The Court indicated:

This appeal raises once again the scope of the principle enunciated in Kienapple v. The Queen, [1975] 1 S.C.R. 729. A single act of the respondent, Sandra prince, caused injury to one person and is alleged to have caused the death of another. Prince has been convicted of causing bodily harm in respect of the injured victim. The question is whether she may also be tried for manslaughter in respect of the deceased victim.

Facts

On January 1, 1981, Sandra Prince, by means of a single blow to the abdomen stabbed Bernice Daniels. At the time Daniels was six months pregnant. On January 2, 1981, Prince was charged with the attempted murder of Daniels. On January 6, 1981, Daniels gave birth to a child who lived for 19 minutes and then died. The cause of death is alleged to be traceable to the stabbing. The autopsy report indicated that the knife penetrated the amniotic sac, causing contamination of the amniotic fluid which in turn caused the child’s premature birth. Because the fetus was not sufficiently developed, the child died^[13].

 

4. On the facts of Prince, supra, the Supreme Court held that there was a factual nexus:

 

I have no hesitation in concluding that the requirement of a sufficient factual nexus is satisfied in the present appeal. A single act of the accused grounds both charges. It is true that the stabbing produced two separate consequences, the injury to Bernice Daniels and the death of the child. But such matters as the consequences of an act, the circumstances in which it was committed, or the status of the victim are most appropriately considered in the analysis of the legal nexus requirement. For it is only when consequences, circumstances, or status are incorporated into elements of an offence that they are relevant[14].

 

5. However, the Court held that the legal nexus was not satisfied because the victims were different and suggested that the accused needed to “answer” or suffer the penalty for multiple offences even though they arose out of the same transaction:

 

Also of particular relevance to the present appeal is a passage at pp. 744-45 in which Justice Laskin referred to his conclusion in Kienapple in the following terms:

The rationale of my conclusion that the charges must be treated as alternative if there is a verdict of guilty of rape on the first count, that there should not be multiple convictions for the same delict against the same girl, has a long history in the common law.

(Emphasis added.)

It would appear from this passage that, at least in so far as crimes of personal violence are concerned, the rule against multiple convictions is inapplicable when the convictions relate to different victims. Indeed, I believe it was never within the contemplation of the majority in Kienapple that the rule enunciated therein would Preclude two convictions for offences respectively containing as elements the injury or death of two different persons.

      Society, through the criminal law, requires Prince to answer for both the injury to Bernice Daniels and the death of the child, just as it would [page507] require a person who threw a bomb into a crowded space to answer for the multiple injuries and deaths that might result, and just as it compels a criminally negligent driver to answer for each person injured or killed as a result of his or her driving: see R. v. Birmingham and Taylor (1976), 34 C.C.C. (2d) 386 (Ont. C.A.) [Emphasis Added].

   I have undertaken the analysis of the present case as though the respondent were seeking to bar a conviction on the lesser offence of causing bodily harm to Bernice Daniels. In fact, she seeks to bar a conviction on the more serious charge of manslaughter, having already been convicted of causing bodily harm. The Crown elected to proceed by way of successive trials rather than seek joinder. Although I do not suggest that the Crown did so in an effort to avoid the rule against multiple convictions, it is perhaps worth emphasizing that the Kienapple principle cannot be avoided by the simple expedient of proceeding in this fashion. Had I reached a different conclusion on the principal issue in this appeal, it would accordingly have been necessary to consider whether a trial on the more serious charge would have been entirely precluded, or whether, by analogy to cases such as Loyer and Terlecki, the trial should have been undertaken on the understanding that a stay would be entered on the lesser offence in the event of a conviction on the more serious offence. However, since I have concluded that Kienapple has no application to the offences charged, I need not address that issue.^[15]

 

6. In R. v. Meszaros,^[16] the Ontario Court of Appeal held that in undertaking the Kienapple legal analysis the question is whether there are sufficient additional and distinguishing elements between the offences to preclude the operation of the Kienapple rule^[17]. Three factors would defeat the sufficient legal nexus requirement:

• where the offences are designed to protect different societal interests.
• where the offences allege personal violence against different victims; and
• where the offences proscribe different consequences^[18].

 

7. Justice Doherty, in a case involving a sentence appeal, speaking for a unanimous Ontario Court of Appeal, did not vary consecutive sentences for two death threats against two different victims arising from the same factual transaction^[19]. In other words, it appears from case law that for concurrent sentences to apply there must be both a factual and legal nexus between the offences.

The problem with requiring both a factual and legal connection between the offences for a concurrent sentence

 

8.   Indicating that sentences must be concurrent when there is both a factual and legal   nexus between the offences is not consistent with the Kienapple principle- if there is both a factual and legal nexus between the offences, then the sentences should not be concurrent or consecutive- Kineapple would apply and the duplicate offence would be stayed so there would only be sentence on one offence.

9               How do we explain this anomaly in the law? Respectfully, this anomaly appears to be a result of the simple rule in Paul v. R^[20] not being applied which requires that if there are multiple offences and each offence is deserving of its own period of imprisonment, each offence should be sentenced in proportion to its gravity through the imposition of consecutive sentences^[21]. There is no need for a more complicated rule to determine when concurrent or consecutive sentences needs to be imposed. Proportionality is the sine qua non of a just sanction^[22].

10            Recently, in the context of the law on concurrent versus consecutive sentences, the Manitoba Court of Appeal, the Prince Edward Island Court of Appeal, and the Alberta Provincial Court have recognized that regardless of how the sentences are framed, the sentence must reflect proportionality (the gravity of the offence and the moral blameworthiness of the offender)^[23].

 

Rule 3:

11.    Rule 3 explained by the Manitoba Court of Appeal incorporates both the principles in Paul v. R, and the single transaction rule into a flexible but principled approach. According to this rule, the first step a sentencing judge must take when required to sentence on multiple offences is to determine whether any or all of the sentences are to be served concurrently or consecutively. This question and the decision does not relate to the overall length of sentence. Rather, they pertain to the nature and circumstances of the criminal activity under consideration and the connectedness of two or more offences to each other^[24]. There are three important factors which must be at the forefront of consideration by a sentencing judge when determining and imposing sentence in respect of multiple offences:

 

 (1)        Whether the sentence imposed will be a consecutive sentence, a  concurrent sentence or a combination of both. Included within this is the need to ensure that whatever the sentence, there will be no free ride given in respect of any offence.

(2)       The sentencing principles of proportionality and totality. Within this, one must consider the more recent phenomenon of what is described as “spree” offences fuelled by addiction.

(3)       Transparency, which must be included in factors (1) and (2) and the sentencing process as a whole^[25].

12. Whether imposing a concurrent sentence, a consecutive sentence or a combination of both, the principle of proportionality must be considered. In respect of a concurrent sentence, proportionality, along with all of the other sentencing objectives and principles set out in s. 718 to s. 718.2 of the Code, except for the principle of totality, must be taken into account at the outset of the consideration of the duration or term of the concurrent sentence. In a particular sense, the proportionality principle necessitates an examination of the gravity of the offence(s), the harm done as a result and the accused’s degree of guilt or moral blameworthiness with respect to the offence(s) committed for the purpose of ensuring that the sentence imposed is in line with the accused’s moral culpability and not greater than that. In so doing, as Lamer C.J.C. stated in M. (C.A.), the assessment of an accused’s moral culpability in any particular case requires that due regard be given to “the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender’s conduct” (at para. 80)^[.26]

13.    The very same analytical process is followed by the sentencing judge in a consecutive sentence scenario, that is, the principle of proportionality, along with all of the other principles of sentencing, but for totality, are considered at the outset in determining what a fit and proper term of sentence is for each of the offences being sentenced^[27]

14.  It is only then, as the final step of the sentencing exercise where consecutive sentences are involved (and not at all regarding concurrent sentences), that the totality principle comes into play. Application of the totality principle does not require reapplication of the sentencing principles (including proportionality) undertaken at the outset of the analytical process to determine term or duration of the sentence^[28]

15.   Rather, the totality principle requires that a “last look” be taken to ensure that the total or cumulative sentence is a fit sentence in that it does not exceed the overall culpability of the offender. Again, due regard is to be given to the “intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender’s conduct” (see M. (C.A.), at para. 80)^[29].

16.  In addition, the intended total or cumulative sentence may offend the totality principle if it is substantially above the maximum sentence available for that type of crime or if its effect is a “crushing sentence,” that is, a sentence not in keeping with the offender’s record and future prospects^[30].

17.   It is essential to remember that a sentence must be imposed for each offence. Failure to do so may amount to reversible error. In so doing, it may be that in order to comply with the proportionality principle in the case of a concurrent sentence or with the totality principle in the case of a consecutive sentence, a sentence which would ordinarily be ascribed to an individual offence will have to be adjusted^[31].

18.  The need for transparency is essential to the sentencing process. It makes clear to the accused being sentenced, to the victim(s) of the crimes and to the community that the accused has been sentenced for the entirety of his criminal misconduct and has thereby been held to account and has received a sentence that is proportionate, i.e., fit and proper taking into account the seriousness of the offence(s), the harm done as a result and the moral blameworthiness of the accused for that conduct, together with his rehabilitative prospects for the future. Transparency is also essential to permit legitimate appellate review, if required^[32].

19.   It is a legitimate sentencing requirement when imposing a concurrent sentence to impose a more severe penalty given multiple offences and their number than one might give for the same offence individually or as compared with a couple or a few offences^[33].

20.    Likewise with respect to the principle of totality (which applies only with respect to consecutive sentences), if upon taking the last look the sentencing judge is of the view that there should be a reduction of the total sentence in order to comply with the principle of totality, that should be done in a transparent fashion^[.34]

21.   In fact, in addition to transparently reducing the length of an individual sentence which would otherwise be fit so as to take into account the totality principle, another way of invoking the totality principle is, after taking the last look, to transparently impose a concurrent sentence rather than what would otherwise properly have been consecutive sentences for the offences in question.^[35]

22. Lastly, of course, when the sentence is finally imposed, which, of course, would be post any adjustment, the actual penalty pertaining to each individual offence must be ascribed^[36].

 

 

[1] The Ontario Court of Appeal has held that insofar as the issue of whether a consecutive versus concurrent sentence ought to have been imposed and the totality of the sentence is concerned, this is an exercise of the judge’s discretion that warrants a high degree of deference absent an error in principle. [R v. Osman [2016] O.J. No. 358 (Ont.CA) at paragraph 8]

[2] 1982 CarswellQue 8 (SCC)

[3] Ibid at paragraph 26

[4] Ibid at paragraph 33 & 36

[5] R v Wozny [2010] M.J. No. 384 (Manitoba Court of Appeal) at paragraph 44; R. v. Gallup [2015] A.J. No. 558 (Alberta Provincial Court) at paragraph 19

 

[6] R. v  Ipeelee, [2012] S.C.J. No. 13 at para. 37, 2012 SCC 13 (S.C.C.)

[7] R. v. Nunn [2014] P.E.I.J. No. 52 (Prince Edward Island Appeal Court) at paragraph 24; R. v. Gallup [2015] A.J. No. 558 (Alberta Provincial Court) at paragraph 19; R v Wozny [2010] M.J. No. 384 (Manitoba Court of Appeal) at paragraph 56

 

[8] Paul v. R. 1982 CarswellQue 8 (SCC) at paragraph 26- 27

[9] R v. Wozny [2010] M.J. No. 384 (Manitoba Court of Appeal) at paragraph 46

[10] 1982 CarswellQue 8 (SCC)

[11] See discussion under “The problem with requiring both a factual and legal connection between the offences for a concurrent sentence” as to why this test is not appropriate

[12] [1986] S.C.J. No. 63 (SCC)

[13] R v. Prince [1986] S.C.J. No. 63 (SCC) at paragraph 1 & 2

[14] R v. Prince [1986] S.C.J. No. 63 (SCC) at paragraph 41

[15] R v. Prince [1986] S.C.J. No. 63 (SCC) at paragraph 47-49. Subsequently, Ms. Prince had a trial on the manslaughter count and  the conviction was upheld on appeal- see R v. Prince [1988] M.J. No. 454 (Manitoba Court of Appeal). However, the Manitoba Court of Appeal did not grant leave because of “the very special circumstances of this case.”  What was the sentence for manslaughter? I obtained from Manitoba Court of Appeal archives the sentencing decision of 11th  December 1987 now reported at [1987] M.J. No. 730. A consecutive jail sentence of 45 days in jail was imposed because of the extreme length of the proceedings and other mitigating factors in that case.

[16] [2013] O.J. No. 5113 (Ont.CA).

[17] Ibid at paragraph 38

[18] Ibid at paragraph 41

[19] R v. R.K  [2005] O.J. No. 2434 (Ont.CA) at paragraphs 1, 2, 8, 39,  42 and 81

[20] CarswellQue 8 (SCC)

[21] Ibid at paragraph 26

[22] R. v. Ipeelee, [2012] S.C.J. No. 13 at paragraph 37

[23] R. v. Nunn [2014] P.E.I.J. No. 52 (Prince Edward Island Appeal Court) at paragraph 24; R. v. Gallup [2015] A.J. No. 558 (Alberta Provincial Court) at paragraph 19; R v Wozny [2010] M.J. No. 384 (Manitoba Court of Appeal) at paragraph 56

 

[24] R v Wozny [2010] M.J. No. 384 (Manitoba Court of Appeal) at paragraph 45

[25] R v Wozny [2010] M.J. No. 384 (Manitoba Court of Appeal) at paragraph 44

[26] R v Wozny [2010] M.J. No. 384 (Manitoba Court of Appeal) at paragraph 56

[27] Ibid at paragraph 57

[28] Ibid at paragraph 58

[29] Ibid at paragraph 59

[30] Ibid at paragraph 60

[31] Ibid at paragraph 63

[32] Ibid at paragraph 67

[33] Ibid at paragraph 70

[34] Ibid at paragraph 71

[35] Ibid at paragraph 72

[36] Ibid at paragraph 73

The law on validity of guilty plea and knowledge of collateral consequences has evolved as I had suggested it would in my book Summary Appeal Law and Trial Advocacy (November, 2015) when discussing the Evolving Law on Validity of Guilty Plea and Knowledge of Immigration Consequences.

To constitute a valid guilty plea, the plea must be voluntary and unequivocal. The plea must also be informed, that is the accused must be aware of the nature of the allegations made against him, the effect of his plea, and the consequence of his plea[1].   However, what is the “consequence” of a plea? In the seminal case of R. v. T. (R.)[2], Justice Doherty held, “By an understanding of the consequences of his pleas, I mean the realization that convictions would flow from his pleas, as well as an appreciation of the nature of the potential penalty he faced[3].” In other words, R. v. T. (R.)[4] appeared to suggest that consequences were restricted to “penalty” rather than collateral consequences of a guilty plea.

In Ontario[5], the recent decision in R v. Quick [2016] O.J. No. 582 (Ont.CA) has removed any doubt that consequences of a guilty plea includes state imposed significant collateral consequences. It is now settled law in Ontario that where an appellant raises the validity of a plea for the first time on appeal and claims the plea is uninformed, the appellant must show a failure to appreciate or an unawareness of a potential penalty that is legally relevant . Legally relevant penalties would at least include both Criminal and non-Criminal “penalties” imposed by the state for a Criminal Code offence[6]. However, from the subjective perspective of the accused[7], these consequences must not be too remote; must not differ significantly from the anticipated consequences; or, must not be too insignificant to affect the validity of the plea[8]. What is called for is a fact-specific inquiry in each case to determine the legal relevance and the significance of the collateral consequence to the accused. A simple way to measure the significance to an accused of a collateral consequence of pleading guilty is to ask: is there a realistic likelihood that an accused, informed of the collateral consequence of a plea, would not have pleaded guilty and gone to trial? In short, would the information have mattered to the accused? If the answer is yes, the information is significant[9].

In the context of an appeal, the accused and his or her counsel will have to adduce fresh evidence, by way of affidavit, with respect to being uninformed about significant collateral consequences at the time of the guilty plea.[10] If the Court of Appeal concludes that the accused was unaware of what were significant collateral consequences that would result from the guilty plea, and the accused would not have plead guilty if aware of those significant collateral consequences, then the guilty plea would be set aside even if the accused did not have a viable defence to the charge. The prejudice lies in the fact that in pleading guilty, the appellant gave up his right to a trial[11].

 In the context of guilty plea courts, the decision in R v. Quick, supra, has practical questions in the judge’s mandatory plea inquiry under s. 606(1)(1.1) of the Criminal Code[12]. In the context of the collateral consequence of an indefinite driving suspension, Justice Laskin noted “…that before an accused pleads guilty to a driving offence, a trial judge would be well advised to ensure that the accused understands the nature and length of any licence suspensions[13].” There is no principled reason to suggest that a trial judge should not ensure that the accused understands any other significant collateral consequences, such as immigration consequences, before pleading guilty. It may be prudent for trial judges, and counsel, to address the issue of collateral consequences which are significant to the accused before a guilty plea is entered.

 

 

[1] R. v. T. (R.), [1992] O.J. No. 1914 (Ont. C.A.) at para. 14.

[2] Ibid

[3] Ibid at para. 37

[4] Ibid

[5] In Alberta, the opposite conclusion was reached- see R v. Hunt [2004] A.J. No. 196 at paras. 17-23, 2004 ABCA 88 (Alta. C.A.); R. v. Slobodan (1993), 135 A.R. 181 (C.A.).

[6] R v. Quick [2016] O.J. No. 582 (Ont.CA) at para. 28

[7] Ibid at para. 35

[8] Ibid at para. 31

[9] Ibid at para. 33

[10] Ibid at para. 7

[11] Ibid at para. 38

[12] Ibid at para. 40

[13] Ibid

The stay cases generally fall into two categories: 1) where state conduct compromises the fairness of an accused’s trial (the “main” category); and 2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the “residual” category)^[1]. In R v O’Connor,^[2] Justice L’Heureux-Dube stated, “It must always be remembered that a stay of proceedings is only appropriate “in the clearest of cases”, where the prejudice to the accused’s right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued.”^[3] In Tobiass^[4], the Supreme Court noted that these “exceptional cases” that merited a stay will be relatively rare^[5]. The Court then set out some general propositions in relation to the nature of the remedy:

… A stay is not a form of punishment. It is not a kind of retribution against the state and it is not a general deterrent. If it is appropriate to use punitive language at all, then probably the best way to describe a stay is as a specific deterrent — a remedy aimed at preventing the perpetuation or aggravation of a particular abuse. Admittedly, if a past abuse were serious enough, then public confidence in the administration of justice could be so undermined that the mere act of carrying forward in the light of it would constitute a new and ongoing abuse sufficient to warrant a stay of proceedings. However, only an exceedingly serious abuse could ever bring such continuing disrepute upon the administration of justice. It is conceivable, we suppose, that something so traumatic could be done to an individual in the course of a proceeding that to continue the prosecution of him, even in an otherwise unexceptionable manner, would be unfair. Similarly, if the authorities were to fabricate and plant evidence at the scene of a crime, the continued pursuit of a criminal prosecution might well be damaging to the integrity of the judicial system.^[6]

The test for stay for main and residual category of cases

                       In R. c. Piccirilli^[9], Moldaver J. for the majority of the Supreme Court of Canada explained that the the test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements: 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”; 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”[10]. The test is the same for both categories because concerns regarding trial fairness and the integrity of the justice system are often linked and regularly arise in the same case. Having one test for both categories creates a coherent framework that avoids “schizophrenia” in the law. But while the framework is the same for both categories, the test may — and often will — play out differently depending on whether the “main” or “residual” category is invoked[11]. Commencing with the first stage of the test, when the main category is invoked, the question is whether the accused’s right to a fair trial has been prejudiced and whether that prejudice will be carried forward through the conduct of the trial; in other words, the concern is whether there is ongoing unfairness to the accused[12]. By contrast, when the residual category is invoked, the question is whether 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[13].

In respect of the first stage, while it is generally true that the residual category will be invoked as a result of state misconduct, this will not always be so. Circumstances may arise where the integrity of the justice system is implicated in the absence of misconduct. Repeatedly prosecuting an accused for the same offence after successive juries have been unable to reach a verdict stands as an example, as does using the criminal courts to collect a civil debt ^[14]. Moreover, in a residual category case, regardless of the type of conduct complained of, the question to be answered at the first stage of the test is the same: whether proceeding in light of the impugned conduct would do further harm to the integrity of the justice system. The court must still consider whether proceeding would lend judicial condonation to the impugned conduct^[15].

At the second stage of the test, the question is whether any other remedy short of a stay is capable of redressing the prejudice. Different remedies may apply depending on whether the prejudice relates to the accused’s right to a fair trial (the main category) or whether it relates to the integrity of the justice system (the residual category). Where the concern is trial fairness, the focus is on restoring an accused’s right to a fair trial. Here, procedural remedies, such as ordering a new trial, are more likely to address the prejudice of ongoing unfairness. 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^[16]. For example, in R v Nasogaluak,^[17] the Supreme Court of Canada found that, in the circumstances of that case, a reduction in sentence was an appropriate remedy for an excessive use of police force in breach of the appellant’s s. 7 Charter rights. Justice Fish, writing for the Court, held:

I do not foreclose, but do not need to address in this case, the possibility that, in some exceptional cases, sentence reduction outside statutory limits, under s. 24(1) of the Charter, may be the sole effective remedy for some particularly egregious form of misconduct by state agents in relation to the offence and the offender. In that case, the validity of the law would not be at stake, the sole concern being the specific conduct of those state agents.^[18]

Finally, the balancing of interests that occurs at the third stage of the test takes on added significance when the residual category is invoked. 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. When the main category is invoked, it will often be clear by the time the balancing stage has been reached that trial fairness has not been prejudiced or, if it has, that another remedy short of a stay is available to address the concern. In those cases, no balancing is required. In rare cases, it will be evident that state conduct has permanently prevented a fair trial from taking place. In these “clearest of cases”, the third and final balancing step will often add little to the inquiry, as society has no interest in unfair trials^[19].

   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^[20].

[1] R. c. Piccirilli, 2014 SCC 16 at para 31 [Piccirilli].

[2] [1995] 4 SCR 411.

[3] R v O’Connor, [1995] 4 SCR 411 at paragraph 82.

[4] Canada (Minister of Citizenship and Immigration) v Tobiass, [1997] 3 SCR 391 at paras 91, 93 and 97 [Tobiass].

[5] Ibid., at para 91.

[6] Tobiass, supra note 4 at para 96.

[9] Supra note 1.

[10] Piccirilli. supra note 1 at para 32

[11] Ibid., at para 33

[12] Ibid., at para 34

[13] Piccirilli. supra note 1 at para 35

[14] Ibid., at para 37

[15] Ibid., at para 38

[16] Piccirilli. supra note 1 at para 39

[17] [2010] 1 SCR 206.

[18] Ibid., at para 64.

[19] Piccirilli. supra note 1 at para 40

[20]Piccirilli. supra note 1 at para 41