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


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).

Jim O'Neil, LL.B.

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