CASE: VOLUME NO: PAGE NO:
(Cite as: R. v. Desmond , 2002 NSSC 10)
CLEVELAND DESMOND
APPLICANT
v.
HER MAJESTY THE QUEEN
RESPONDENT
Justice A. David MacAdam Halifax, NS C.R. No. 170978
LIBRARY HEADING
HEARD: Before the Honourable Justice A. David MacAdam
DECISION: January 16, 2002 (Orally)
WRITTEN RELEASE
OF DECISION: January 25, 2002
SUBJECT: Criminal Law - Abuse of Process - Stay of Proceedings
SUMMARY: A police officer investigating allegations of sexual assault, assault causing bodily harm and theft against the respondent ,was advised by the complainant that what she wanted most of all was the return of her jewelry, including a ring that had been taken from her. The accused although indicating to the investigating officer he was not responsible for any of the offences alleged by the complainant, including later advancing a defence of alibi, stated he, however, knew who had the jewelry and could obtain the same. The police officer queried the complainant whether it was more important to have the accused go to court for sexual assault or to get her jewelry back, to which she responded her primary concern was to get her jewelry back. This offer was made to the accused who in due course arranged to have the jewelry returned. Later the complainant discovered the diamond in the ring had been removed and replaced by a cubic zirconia. The Constable contacted the accused, advising him to bring the diamond back, to which the accused replied he could not. Testifying at the preliminary, the Constable indicated that because the accused had reneged on the agreement that had been made, he had no other choice but to proceed with the investigation. At issue is whether the conduct of the investigating officer amounted to an abuse of process. On the evidence it was clear the prosecution against the accused only proceeded because he had reneged on the deal to return the jewelry intact, namely, with the diamond in the ring rather than the cubic zirconia. Applying the test for judicial stay enumerated in Canada (Minister of Citizenship and Immigration) v. Tobias (1997), 118 C.C.C. (3d), 443, held that this was one of the clearest cases where continuing the prosecution would represent an affront to society’s sense of fair play and decency, and this outweighed society’s justifiable and understandable interest in seeing cases such as these prosecuted effectively and in the circumstances, there was no relief short of a stay that was appropriate. A judicial stay did not require misconduct or improper motives on the part of the investigating officer (see R. v. Miles of Music (1989), 48 C.C.C. (3d) 96 per Justice Krever). The involvement of the investigating officer met the requirement that the misconduct must be on the part of the executive, either the police or the Crown. Since the abuse was the negotiating of the “deal”, no remedy short of a stay of the proceeding was appropriate. A charge of obstructing justice, relating to events that occurred after the “deal” had been canceled and the information laid in respect to the original charges, not stayed, since the abuse was not connected to this alleged offence.