R v Bellusci, 2012 SCC 44 (3 August 2012)
The full bench of Canada's Supreme Court has upheld a trial judge's decision to permanently stay proceedings against a prisoner who was found guilty of threatening to rape a prison guard's wife and children. Because the prisoner was assaulted during the incident, his rights were found to be infringed under the constitutional Canadian Charter of Rights and Freedoms, and a discretionary remedy available under section 24(1) was awarded on this basis.
During a trip from the courthouse to prison, a prison guard (who was driving the prison van) told other prisoners that Mr Bellusci was a rapist. Mr Bellusci replied that he would rape the van driver's wife and children. Later, there was a physical altercation between the two men.
As a result of this incident, Mr Bellusci was charged with two counts of assault and one count of intimidation. Mr Bellusci was acquitted of the assault charges at trial, and these charges were not in issue in the Supreme Court appeal.
On the count of intimidation, the trial judge found that Mr Bellusci was guilty, but declined to convict him on the basis that Mr Bellusci's right to life, liberty and security under section 7 of the Canadian Charter had been violated. Further, the trial judge exercised his discretion under section 24(1) of the Canadian Charter to grant a stay of proceedings, effectively acquitting Mr Bellusci. Section 24(1) of the Canadian Charter states:
Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
Following an appeal by the Crown, the Quebec Court of Appeal quashed the stay of proceedings, remitting the matter to the trial court for Mr Bellusci's trial to continue.
Mr Bellusci appealed to the Supreme Court.
The Supreme Court determined that the Court of Appeal erred in setting aside the trial judge's decision. The Supreme Court followed a previously established principle that a trial judge's order made under section 24(1) of the Canadian Charter should not be disturbed unless "the trial judge misdirects himself or if his decision is so clearly wrong as to amount to an injustice". Further, the Supreme Court found that the trial judge correctly applied the law and considered the right factors in determining the appropriate remedy.
On that basis, the Court allowed the appeal and restored the stay of proceedings.
In determining the correct principle to apply, the Supreme Court referred to the 2009 decision R v Bjelland, 2009 SCC 38 (30 July 2009), where the Court highlighted the importance of judicial discretion in relation to section 24(1) of the Charter:
Appellate courts may interfere with a trial judge's exercise of discretion only if the trial judge has erred in law or rendered an unjust decision. This is particularly true of remedies granted by trial judges under section 24(1) of the Charter, which by its very terms confers on trial judges the widest possible discretion.
In deferring to the broad discretion granted by section 24(1) of the Canadian Charter, the Court of Appeal noted that the trial judge "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". The Supreme Court considered appellate intervention unwarranted in circumstances where the trial judge had "found that [Mr Bellusci] had been provoked and subjected by a state actor to intolerable physical and psychological abuse".
The Supreme Court also considered whether a court of appeal, when remitting a matter back to trial, could do so on the basis of continuing that trial, rather than ordering a new trial.
The Court turned to the Criminal Code, RSC 1985, c.C-46, to consider the scope of orders that courts can make. Section 686(4)(b) enables a court of appeal, upon allowing an appeal against acquittal, to remit the matter back to trial. This provision was considered in light of section 686(8), which enabled a court to "make any order, in addition, that justice requires". The Supreme Court found that the operation of these two provisions together effectively allowed a court of appeal to make an order that, once remitted, a trial should continue rather than start afresh.
Relevance to the Victorian Charter
The right to life, liberty and security found in section 7 of the Canadian Charter is also found, on similar terms, in section 21 of the Victorian Charter, which recognises a person's right to "liberty and security". Section 22(1) of the Victorian Charter protects those who are imprisoned: "persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person".
While the Canadian Charter offers courts the broad discretionary remedies of section 24(1), the Victorian Charter lacks an equivalent provision. Remedies in the Victorian Charter are generally limited to declarations under section 36.
However, under section 32(1) of the Charter, all Victorian Courts must interpret legislation "in a way that is compatible with human rights". In the ACT, the Supreme Court has found that an equivalent provision in the Human Rights Act 2004 is "relevant in construing the scope of legislative power to grant stays in criminal proceedings" (R v Upton  ACTSC 52 (Connolly J)). However, in Victoria, the ability to grant a stay of proceedings where there has been an impropriety by the Crown is inherent in the Court's jurisdiction, rather than sourced from legislation. No Victorian decision to date has granted a stay of proceedings on the basis of the Charter.
The decision is available online at:
Katie Gardiner is a Law Graduate at Allens.