R. v. MacKenzie

R. v. MacKenzie Court Court of Appeal Date 2004-01-27 Citation 2004 NSCA 10 Docket CAC 200903 Judge/Registrar/Adjudicator Fichaud, Joel E. (Honourable Justice) (CA); Chipman, David (Honourable Justice); Saunders, Jamie W. S. (Honourable Justice) (CA) Document Type Decision Relations Library Sheet - R. v. MacKenzie - 2004 NSCA 10 - 2004-01-27 - Library Sheet Decision Content NOVA SCOTIA COURT OF APPEAL Citation: R. v. MacKenzie, 2004 NSCA 10 Date: 20040127 Docket: CAC 200903 Registry: Halifax Between: Her Majesty the Queen Appellant v. Nicole Marie MacKenzie Respondent Judges: Saunders, Chipman and Fichaud, JJ.A. Appeal Heard: December 2, 2003, in Halifax, Nova Scotia Held: Leave to appeal granted, appeal allowed, stay overturned and a new trial ordered as per reasons for judgment of Fichaud, J.A.; Saunders and Chipman JJ.A. concurring. Counsel: William Delaney, for the appellant Réjean Aucoin, for the respondent Reasons for judgment: [1] Nicole MacKenzie was charged with speeding. She appeared unrepresented by counsel for arraignment in Provincial Court. Contrary to s. 530(3) of the Criminal Code which applies here by s. 7(1) of the Summary Proceedings Act, R.S.N.S. 1989 c. 450, the Provincial Court judge did not inform her of her right to apply for a French trial. The Provincial Court tried Ms. MacKenzie in English, convicted and fined her. [2] Ms. MacKenzie appealed to the Nova Scotia Supreme Court as Summary Conviction Appeal Court (“SCAC”). Justice Edwards ruled that the violation of s. 530(3) contravened ss. 15, 16 and 19 of the Charter of Rights and, noting the “serious Charter breach”, decided that the appropriate remedy was a stay of proceedings rather than a new trial. [3] The Crown applies for leave and, if granted, appeals based on error of law under s. 839(1) of the Criminal Code and s. 7(1) of the Summary Proceedings Act. The Crown acknowledges the contravention of s. 530(3) but says that the appropriate remedy was a new trial instead of a stay. Standard of Review: [4] I apply the standard stated by Justice LeBel for the majority in R. v. Regan, [2002] 1 S.C.R. 297: D. Standard of Review 117. The decision to grant a stay is a discretionary one, which should not be lightly interfered with: "an appellate court will be justified in intervening in a trial judge's exercise of his discretion only if the trial judge misdirects himself or if his decision is so clearly wrong as to amount to an injustice" (Tobiass, supra, at para. 87; Elsom v. Elsom, [1989] 1 S.C.R. 1367, at p. 1375). Furthermore, where a trial judge exercises her or his discretion, that decision cannot be replaced simply because the appellate court has a different assessment of the facts (Stein v. The Ship "Kathy K", [1976] 2 S.C.R. 802; see also R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38; R. v. Van der Peet, [1996] 2 S.C.R. 507). 118. This does not mean, however, that the trial judge is completely insulated from review. It is settled law that where the "trial judge made some palpable and overriding error which affected his assessment of the facts", the decision based on these facts may be reversed (Kathy K, at p. 808). In the present case, I find that the trial judge made palpable and overriding factual errors which set his assessment of the facts askew. I also find that he misdirected himself regarding the law for granting a stay by overlooking key elements of the analysis, thereby committing an error which was properly reversed by the Court of Appeal. In Regan the trial judge issued the stay. Here the SCAC issued the stay on appeal from the trial judge, and this appeal is based on error of law. I will apply Regan’s comments on misdirection of law. Issues: [5] The issues are: 1. Was there a breach of s. 530(3)? 2. Was there a breach of the Charter? 3. What is the appropriate remedy? First Issue: Was there a breach of s. 530(3)? [6] Section 530 states: 530. (1) On application by an accused whose language is one of the official languages of Canada, made not later than (a) the time of the appearance of the accused at which his trial date is set, if (i) he is accused of an offence mentioned in section 553 or punishable on summary conviction, or (ii) the accused is to be tried on an indictment preferred under section 577, (b) the time of the accused's election, if the accused elects under section 536 to be tried by a provincial court judge or under section 536.1 to be tried by a judge without a jury and without having a preliminary inquiry, or (c) the time when the accused is ordered to stand trial, if the accused (i) is charged with an offence listed in section 469, (ii) has elected to be tried by a court composed of a judge or a judge and jury, or (iii) is deemed to have elected to be tried by a court composed of a judge and jury, a justice of the peace, provincial court judge or judge of the Nunavut Court of Justice shall grant an order directing that the accused be tried before a justice of the peace, provincial court judge, judge or judge and jury, as the case may be, who speak the official language of Canada that is the language of the accused or, if the circumstances warrant, who speak both official languages of Canada. Idem (2) On application by an accused whose language is not one of the official languages of Canada, made not later than whichever of the times referred to in paragraphs (1)(a) to (c) is applicable, a justice of the peace or provincial court judge may grant an order directing that the accused be tried before a justice of the peace, provincial court judge, judge or judge and jury, as the case may be, who speak the official language of Canada in which the accused, in the opinion of the justice or provincial court judge, can best give testimony or, if the circumstances warrant, who speak both official languages of Canada. Accused to be advised of right (3) The justice of the peace or provincial court judge before whom an accused first appears shall, if the accused is not represented by counsel, advise the accused of his right to apply for an order under subsection (1) or (2) and of the time before which such an application must be made. [emphasis added] Remand (4) Where an accused fails to apply for an order under subsection (1) or (2) and the justice of the peace, provincial court judge or judge before whom the accused is to be tried, in this Part referred to as "the court", is satisfied that it is in the best interests of justice that the accused be tried before a justice of the peace, provincial court judge, judge or judge and jury who speak the official language of Canada that is the language of the accused or, if the language of the accused is not one of the official languages of Canada, the official language of Canada in which the accused, in the opinion of the court, can best give testimony, the court may, if it does not speak that language, by order remand the accused to be tried by a justice of the peace, provincial court judge, judge or judge and jury, as the case may be, who speak that language or, if the circumstances warrant, who speak both official languages of Canada. Variation of order (5) An order under this section that an accused be tried before a justice of the peace, provincial court judge, judge or judge and jury who speak the official language of Canada that is the language of the accused or the official language of Canada in which the accused can best give testimony may, if the circumstances warrant, be varied by the court to require that the accused be tried before a justice of the peace, provincial court judge, judge or judge and jury who speak both official languages of Canada. [7] Section 530.1 states that when an order is granted under s. 530 directing a trial in the official language of the accused, then the accused has specific rights to the use of either official language during the preliminary inquiry and trial. [8] Ms. MacKenzie was charged with exceeding the speed limit contrary to 106A of the Motor Vehicle Act, R.S.N.S. 1989, c. 293, as am. by S.N.S. 2001, c. 12, s. 3. Section 267(1) of the Motor Vehicle Act states that the Act shall be enforced under the Summary Proceedings Act, R.S.N.S. 1989, c. 450. [9] The Summary Proceedings Act, ss. 7(1) and (2)(a) state: 7 (1) Except where and to the extent that it is otherwise specially enacted, the provisions of the Criminal Code (Canada), except section 734.2, as amended or re-enacted from time to time, applicable to offences punishable on summary conviction, whether those provisions are procedural or substantive and including provisions which impose additional penalties and liabilities, apply, mutatis mutandis, to every proceeding under this Act. (2) In applying the provisions of the Criminal Code (Canada) to proceedings under this Act, the following expressions therein have the following meanings: (a) "Act of the Parliament of Canada" means an Act of the Legislature; This incorporates s. 530(3) of the Criminal Code for Ms. MacKenzie’s speeding charge. [10] Breach of s. 530(3): If the accused is unrepresented by counsel at her first appearance, then as stated by Justice Edwards, s. 530(3) is mandatory. The Provincial Court judge “shall” advise the accused of his right to apply for an order that the trial be in either official language. [11] Ms. MacKenzie appeared unrepresented for her arraignment. The Provincial Court judge was required to notify Ms. MacKenzie of her right to apply for an order under subsections (1) or (2) of s. 530 and the time before which such an application must be made. He did not do so. This violated s. 530(3). The only issue is the remedy. [12] Accused need not take the initiative: While the Crown acknowledged the breach of s. 530(3), at the hearing of this appeal it was suggested that, as there was no material before the Provincial Court judge to indicate that Ms. MacKenzie was French-speaking, it was understandable that the Provincial Court judge did not give the s. 530(3) notice. I disagree. The only condition which triggers the requirement for a notice is that the accused appear unrepresented. The accused is not required to present herself as French-speaking. She need not take the initiative before the notice. The reason for the notice under s. 530(3) is that the unrepresented person likely is unaware of her right to a trial in either language. Once the sole condition - unrepresented appearance - exists, the onus of initiative is with the judge. [13] In R. v. Beaulac, [1999] 1 S.C.R. 768 at para. 23 Justice Bastarache adopted the following from the statement of the Minister of Justice in the House of Commons upon the introduction of the amendments to the Criminal Code: It seems to me that all persons living in a country which recognizes two official languages must have the right to use and be understood in either of those languages when on trial before courts of criminal jurisdiction. I repeat that a trial before a judge or jury who understand the accused's language should be a fundamental right and not a privilege. The right to be heard in a criminal proceeding by a judge or a judge and jury who speak the accused's own official language, even if it is the minority official language in a given province, surely is a right that is a bare minimum in terms of serving the interests of both justice and Canadian unity. It is essentially a question of fairness that is involved. [Justice Bastarache’s emphasis] [14] Justice Bastarache continued: 28. Section 530(1) creates an absolute right of the accused to equal access to designated courts in the official language that he or she considers to be his or her own. The courts called upon to deal with criminal matters are therefore required to be institutionally bilingual in order to provide for the equal use of the two official languages of Canada. In my view, this is a substantive right and not a procedural one that can be interfered with. ... 31. The object of s. 530(1) is to provide an absolute right to a trial in one's official language, providing the application is timely. ... 34. ... The language of the accused is very personal in nature; it is an important part of his or her cultural identity. The accused must therefore be afforded the right to make a choice between the two official languages based on his or her subjective ties with the language itself. The principles upon which the language right is founded, the fact that the basic right is absolute, the requirement of equality with regard to the provision of services in both official languages of Canada and the substantive nature of the right all point to the freedom of Canadians to freely assert which official language is their own language. ... An accused's own language, for the purposes of s. 530(1) and (4), is either official language to which that person has a sufficient connection. It does not have to be the dominant language. If the accused has sufficient knowledge of an official language to instruct counsel, he or she will be able to assert that that language is his or her language, regardless of his or her ability to speak the other official language. The Crown may challenge the assertion made, but it will have the onus of showing that the assertion is unfounded. The court, in such a case, will not inquire into specific criteria to determine a dominant cultural identity, nor into the personal language preferences of the accused. It will only satisfy itself that the accused is able to instruct counsel and follow the proceedings in the chosen language. 35. The assertion of language is a prerequisite to an application under s. 530(1) or s. 530(4). Once entitlement is established and an application is made under s. 530(4), the judge will be required to determine whether the best interests of justice will be served by granting the application. ... 37. ... The first inquiry that comes to mind is directed at the knowledge of the right by the accused. When was he or she made aware of his or her right? Did he or she waive the right and later change his or her mind? Why did he or she change his or her mind? Was it because of difficulties encountered during the proceedings? It is worth mentioning at this point that the right of the accused to be informed of his or her right under s. 530(3) is of questionable value because it applies only when the accused is unrepresented. The assumption that counsel is aware of the right and will in fact advise his or her client of that right in all circumstances, absent a duty to do so, is unrealistic, as confirmed by the report of the Commissioner of Official Languages of Canada, The Equitable Use of English and French Before the Courts in Canada (1995), at p. 105. 41. ... The right to full answer and defence is linked with linguistic abilities only in the sense that the accused must be able to understand and must be understood at his trial. But this is already guaranteed by s. 14 of the Charter, a section providing for the right to an interpreter. The right to a fair trial is universal and cannot be greater for members of official language communities than for persons speaking other languages. Language rights have a totally distinct origin and role. They are meant to protect official language minorities in this country and to insure the equality of status of French and English. This Court has already tried to dissipate this confusion on several occasions. Thus, in MacDonald v. City of Montreal, supra, Beetz J., at pp. 500-501, states that: It would constitute an error either to import the requirements of natural justice into . . . language rights . . . or vice versa, or to relate one type of right to the other. . . . Both types of rights are conceptually different. . . . To link these two types of rights is to risk distorting both rather than reenforcing either. I re-affirm this conclusion here in the hope that these rights will no longer be confused. Fairness of the trial is not to be considered at this stage and is certainly not a threshold that, if satisfied, can be used to deny the accused his language rights under s. 530. 45. In the present instance, much discussion was centered on the ability of the accused to express himself in English. This ability is irrelevant because the choice of language is not meant to support the legal right to a fair trial, but to assist the accused in gaining equal access to a public service that is responsive to his linguistic and cultural identity. ... 47. Language rights are not subsumed by the right to a fair trial. If the right of the accused to use his or her official language in court proceedings was limited because of language proficiency in the other official language, there would in effect be no distinct language right. ... But language rights are not meant to enforce minimum conditions under which a trial will be considered fair, or even to ensure the greatest efficiency of the defence. Language rights may no doubt enhance the quality of the legal proceedings, but their source lies elsewhere. [15] From these passages, the following principles govern the interplay of subsections 530(1) and (3): 1. Ms. MacKenzie had an absolute right under s. 530(1) to a trial in her own language. If “circumstances warrant” the court may order that the judge or jury be bilingual further to the concluding words of s. 530(1). 2. Her right is not subsumed into her separate right to a fair trial. Section 530(1) states an independent right to access a public service that is responsive to her linguistic and cultural identity. 3. It is for Ms. MacKenzie to decide whether English or French is her “own language” for trial provided only that she is capable of instructing counsel in her chosen official language. 4. Ms. MacKenzie’s assertion of language is the prerequisite to the application under s. 530(1) for a trial in French. 5. Effective notice is prerequisite to the assertion of language by an unrepresented accused. Because Ms. MacKenzie was unrepresented, the court was required to notify Ms. MacKenzie under s. 530(3) of her right to apply for a trial in either official language and the time within which that application must be made. Ms. MacKenzie’s right to notice is as absolute as are Ms. MacKenzie’s rights which flow from that notice. In Beaulac Justice Bastarache (para. 37) noted “the questionable value” of s. 530(3) because even when accused have counsel, the counsel may fail to advise their client of a right to a trial in either official language. Obviously there is no basis to dilute the required notice to unrepresented persons. 6. On her first appearance, at the time of the required notice under s. 530(3), it was unnecessary that Ms. MacKenzie identify herself as French-speaking, or state her preference for French. If she was unrepresented, she was entitled to notice regardless of her actual or apparent proficiency in either French or English. If the Provincial Court judge neglects the notice then, if the Crown wishes to avoid the trial process inefficiency which has occurred here (two appeals, and a stay or new trial), Crown counsel should consider reminding the Provincial Court judge of s. 530(3). 7. If Ms. MacKenzie applied for a French trial under s. 530(1), then the judge may determine whether French is “the language of the accused”. When the accused chooses French or English, the inquiry is limited to whether she can instruct counsel in her chosen language. This is the only point when a judge assesses language proficiency. There is no such assessment before the notice under s. 530(3). [16] For these reasons, the absence of material before the Provincial Court to show that Ms. MacKenzie was French-speaking, has no bearing on the Court’s obligation to give the s. 530(3) notice. Second Issue: Was there a breach of the Charter? [17] The SCAC stated: Clearly, the learned Provincial Court Judge should have advised the Appellant of her s. 530 rights. As I explained in Deveau [R. v. Deveau 1999 NSJ No. 477], his failure to do so constitutes a breach of the Appellant’s rights under ss. 15, 16, and 19 of the Charter. Here, the Crown did not argue otherwise. [18] The SCAC’s decision contains no further reasoning to support the conclusion that there was a breach of the Charter. [19] In Deveau, at para.15, Justice Edwards stated: The failure by the Trial Judge to advise the Appellant in accordance s. 530(3) of the Code constitutes a breach of the Appellant’s rights under S. 15, 16 and 19 of the Canadian Charter of Rights and Freedoms. Those sections read as follows: ... [20] Deveau contains no further reasoning to support the conclusion that there was a breach of the Charter. [21] The ultimate question is whether there should be a stay or a new trial. To answer this, a threshold issue is whether there is a breach of the Charter. If so, there is access to the remedial power under s. 24(1). If not, it is necessary to consider the general power of a criminal court to grant a stay. [22] The SCAC stated: In summary, this is a serious Charter breach involving the Appellant’s equality of access to the criminal justice system. To order a new trial in this situation would compound the consequences of the Charter breach for this particular Appellant. Moreover, a new trial would not sufficiently deter future breaches involving other members of the linguistic minority. The seriousness of this breach and the potential for future breaches trumps the public interest in having this charge decided on its merits. A stay of proceedings is the most appropriate remedy. The decision does not refer to s. 24(1) of the Charter. But the SCAC’s conclusion that there was a “serious Charter breach” obviously affected the choice of a stay over a new trial. [23] So it is necessary to consider whether the breach of s. 530(3) constitutes a breach of ss. 15, 16 or 19 of the Charter. [24] The Crown’s factum to this court said nothing about whether there was a Charter breach. Ms. MacKenzie’s factum submitted that there was a breach of ss. 16(1) and (3) but said little of ss. 15 and 19. [25] Before the hearing, this court requested that counsel file further written argument as to whether there was a breach of the Charter. The Crown then filed a submission that there was no breach of ss. 15, 16 or 19. Ms. MacKenzie’s counsel filed a submission which acknowledged that there was no violation of ss. 15 or 19, but argued that there was a violation of s. 16. The written submissions on behalf of Ms. MacKenzie referred to s. 16(1) and s. 16(3). At the hearing Ms. MacKenzie’s counsel stated that only s. 16(1) was infringed. Ms. MacKenzie’s counsel also cited passages from Beaulac and Reference Re Seccession of Quebec, [1998] 2 S.C.R. 217 on the normative constitutional status of minority language rights. I will discuss all these issues. [26] In my view there is no breach of the Charter and the remedial power of s. 24(1) was unavailable. [27] Section 15: In Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 at para. 39, Justice Iacobucci synthesized the various formulations of the test under s. 15(1): In my view, the proper approach to analyzing a claim of discrimination under s. 15(1) of the Charter involves a synthesis of these various articulations. Following upon the analysis in Andrews, supra, and the two-step framework set out in Egan, supra, and Miron, supra, among other cases, a court that is called upon to determine a discrimination claim under s. 15(1) should make the following three broad inquiries. First, does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics? If so, there is differential treatment for the purpose of s. 15(1). Second, was the claimant subject to differential treatment on the basis of one or more of the enumerated and analogous grounds? And third, does the differential treatment discriminate in a substantive sense, bringing into play the purpose of s. 15(1) of the Charter in remedying such ills as prejudice, stereotyping, and historical disadvantage? The second and third inquiries are concerned with whether the differential treatment constitutes discrimination in the substantive sense intended by s. 15(1). [28] Justice Iacobucci detailed the analytical matrix for these three steps, involving a threshold definition of comparator groups, analysis of the comparator groups for each step and for the third step a catalogue of contextual factors which must be examined to determine if there is “discrimination”. [29] Justice Iacobucci’s analytical matrix has become the accepted approach to determine whether there was a violation of s. 15(1): e.g., M. v. H., [1999] 2 S.C.R. 3; Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703; Lovelace v. Ontario, [2000] 1 S.C.R. 950; Nova Scotia (Workers’ Compensation Board) v. Martin, [2003] S.C.J. 54. [30] The SCAC did not examine these factors either in the decision under appeal, or in Deveau which the SCAC adopted here. [31] “Language” is not a listed category of discrimination under s. 15(1). Section 15(1) could only apply if “language” was an analogous ground of discrimination. The Supreme Court has outlined the approach to determining whether an alleged ground of discrimination is “analogous” eg. Egan v. Canada, [1995] 2 S.C.R. 513; Law, above; M. v. H., above, at para. 63. [32] Neither in the decision under appeal, nor in Deveau, did the SCAC consider whether “language” is an analogous category under s. 15(1). [33] Appellate courts repeatedly have stated that “language” is not an analogous ground of s. 15(1). The reason is that ss. 16-23 of the Charter deal specifically with language rights. If “language” also was subject to the over-arching coverage of s. 15(1), then the ambit of the protections in ss. 16-23 would have little meaning. See: Lalonde v. Ontario (Commission de Restructuration des Services de Santé) (2001), 208 D.L.R. (4th) 577 (OCA) at 621-622; MacDonnell v. Federation de Franco-Columbiens (1986), 31 D.L.R. (4th) 296 (BCCA); R. v. Paquette (1987), 46 D.L.R. (4th) 81 (ACA); Ringuette v. Canada (A.G.) (1987), 53 Nfld. & P.E.I.R. 126 (NCA); R. v. Simard (1995) 27 O.R. (3rd) 116 (OCA) at 126 and 131; R. v. Crête, (1994), 64 O.A.C. 399 (OCS); Seaway Trust v. Kilderkin Investments Limited (1986), 29 D.L.R. (4th) 456 (OHCJ); R. v. Rodrigue (1994), 91 C.C.C. (3rd) 455 (YSC) at pp. 472 - 4, appeal dismissed on jurisdictional grounds, (1995), 95 C.C.C. (3rd) 129 (YTCA), leave to appeal denied by the Supreme Court of Canada, [1995] 3 S.C.R. vii. [34] There was no breach of s. 15(1). [35] Section 19: Section 19 of the Charter states: 19. (1) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court established by Parliament. (2) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court of New Brunswick. [36] Section 19(1) applies only to courts “established by Parliament”. It is similar to s. 133 of the Constitution Act, 1867 which states that English or French “may be used by any person in any pleading or process in or issuing from any court of Canada established under this Act, and in or from all or any of the courts of Quebec.” The words “any court of Canada” in s. 133 have been interpreted to apply only to courts established by federal legislation: Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182 at 193 per Chief Justice Laskin; Attorney General of Quebec v. Blaikie, [1979] 2 S.C.R. 1016 at pp. 1025 - 6 and 1028 - 30; Société des Acadiens v. Association of Parents, [1986] 1 S.C.R. 549 at pp. 561 and 574. [37] Hogg, Constitutional Law of Canada (looseleaf, vol. 2) at para. 53.5(A) states: With respect to the courts, s. 133 of the Constitution Act, 1867 requires that either French or English “may be used by any person in any pleading or process in or issuing from any Court of Canada established under this Act, and in or from all or any of the courts of Quebec”. This gives a choice of either French or English to litigants and the Federal courts and the courts of Quebec. Section 23 of the Manitoba Act, 1870 imposes a similar requirement on the courts of Manitoba. Section 19(2) of the Charter of Rights imposes a similar requirement on the courts of New Brunswick. The courts of the other seven provinces are under no similar constitutional obligation. [emphasis added] [38] The Provincial Court which arraigned and tried Ms. MacKenzie is not “established by Parliament”. It is established under the Provincial Court Act, R.S.N.S. 1989, c. 238, as am., s. 2A(1): There is hereby established a court of record to be known as the Provincial Court of Nova Scotia. [39] There was no breach of s. 19 of the Charter. [40] Section 16(1): Sections 16(1) and (2) of the Charter state: 16. (1) English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada. (2) English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick. [41] It was s. 16(1) upon which counsel for Ms. MacKenzie focused at the hearing of this appeal. [42] Section 16(1) applies only to “institutions of the Parliament and government of Canada.” [43] The Provincial Court of Nova Scotia is not an institution of Parliament. It is established by the Nova Scotia Legislature as discussed above. That the Provincial Court applies the Criminal Code does not change this conclusion. The Provincial Court also applies legislation creating provincial offences. [44] The Provincial Court is not an institution of government or the executive. This is clear from Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3 at paras. 126-9 where Chief Justice Lamer stated: 126. What follows as a consequence of the link between institutional independence and the separation of powers I will turn to shortly. The point I want to make first is that the institutional role demanded of the judiciary under our Constitution is a role which we now expect of provincial court judges. I am well aware that provincial courts are creatures of statute, and that their existence is not required by the Constitution. However, there is no doubt that these statutory courts play a critical role in enforcing the provisions and protecting the values of the Constitution. Inasmuch as that role has grown over the last few years, it is clear therefore that provincial courts must be granted some institutional independence. 127. This role is most evident when we examine the remedial powers of provincial courts with respect to the enforcement of the Constitution. Notwithstanding that provincial courts are statutory bodies, this Court has held that they can enforce the supremacy clause, s. 52 of the Constitution Act, 1982. A celebrated example of the use of s. 52 by provincial courts is R. v. Big M Drug Mart Ltd. (1983), 25 Alta. L.R. (2d) 195 (Prov. Ct.) (upheld by this Court in [1985] 1 S.C.R. 295), which became one of the seminal cases in Charter jurisprudence. Provincial courts, moreover, frequently employ the remedial powers conferred by ss. 24(1) and 24(2) of the Charter, because they are courts of competent jurisdiction for the purposes of those provisions: Mills v. The Queen, [1986] 1 S.C.R. 863. Thus, provincial courts have the power to order stays of proceedings: e.g., R. v. Askov, [1990] 2 S.C.R. 1199. As well, provincial courts can exclude evidence obtained in violation of a Charter right: e.g., R. v. Collins, [1987] 1 S.C.R. 265. They use ss. 24(1) and 24(2) because of their dominant role in the adjudication of criminal cases, where the need to resort to those remedial provisions most often arises. 128. In addition to enforcing the rights in ss. 7‑14 of the Charter, which predominantly operate in the criminal justice system, provincial courts also enforce the fundamental freedoms found in s. 2 of the Charter, such as freedom of religion (Big M) and freedom of expression (Ramsden v. Peterborough (City), [1993] 2 S.C.R. 1084). As well, they police the federal division of powers, by interpreting the heads of jurisdiction found in ss. 91 and 92 of the Constitution Act, 1867: e.g., Big M and R. v. Morgentaler, [1993] 3 S.C.R. 463. Finally, many decisions on the rights of Canada's aboriginal peoples, which are protected by s. 35(1) of the Constitution Act, 1982, are made by provincial courts: e.g., R. v. Sparrow, [1990] 1 S.C.R. 1075. 129. It is worth noting that the increased role of provincial courts in enforcing the provisions and protecting the values of the Constitution is in part a function of a legislative policy of granting greater jurisdiction to these courts. Often, legislation of this nature denies litigants the choice of whether they must appear before a provincial court or a superior court. As I explain below, the constitutional response to the shifting jurisdictional boundaries of the courts is to guarantee that certain fundamental aspects of judicial independence be enjoyed not only by superior courts but by provincial courts as well. In other words, not only must provincial courts be guaranteed institutional independence, they must enjoy a certain level of institutional independence. [45] In R. v. Simard, above, Justice Lacourcière for the Ontario Court of Appeal stated p. 126: I agree with Macdonald, J. in R. v. Rodrigue, [cited above p. 468], that ss. 16(1) to 20(1) of the Charter pertain to the general principle of equality of status of the official languages applicable to federal institutions and non judicial communications. These sections cover distinct and water-tight compartments of parliamentary, judicial and governmental activities of the federal state. The judiciary is discussed in s. 19, not s. 16(1). [46] The express reference to the institutions of New Brunswick in s. 16(2) confirms that “institutions of the Parliament and Government of Canada” in s. 16(1) excludes provincial institutions: see Moncton (City) v. Charlebois, [2001] N.B.J. No. 480 (QL) (NBCA) at para 59. There is no constitutional reference to Nova Scotia institutions equivalent to s. 16(2). [47] Counsel for Ms. MacKenzie refers to Beaulac, above, where Justice Bastarache for the majority referred to the “equality of status” guaranteed by s. 16(1). Justice Bastarache stated: 22 ... The principle of advancement does not however exhaust s. 16 which formally recognizes the principle of equality of the two official languages of Canada. It does not limit the scope of s. 2 of the Official Languages Act. Equality does not have a lesser meaning in matters of language. With regard to existing rights, equality must be given true meaning. This Court has recognized that substantive equality is the correct norm to apply in Canadian law. Where institutional bilingualism in the courts is provided for, it refers to equal access to services of equal quality for members of both official language communities in Canada. ... 24 ... The idea that s. 16(3) of the Charter, which has formalized the notion of advancement of the objective of equality of the official languages of Canada in the Jones case, supra, limits the scope of s. 16(1) must also be rejected. This subsection affirms the substantive equality of those constitutional language rights that are in existence at a given time. ... [emphasis added] [48] Justice Bastarache stated that s. 16(1) affirms the substantive equality of “constitutional language rights”. The constitutional language rights guaranteed by s. 16(1) apply to “institutions of Parliament and Government of Canada”. The Provincial Court of Nova Scotia is not such an institution. [49] In my view, the language guarantees of s. 16(1) did not apply to the Provincial Court’s arraignment and trial of Ms. MacKenzie. There was no breach of s. 16(1). [50] Section 16(3): Section 16(3) of the Charter states: 16. (3) Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French. [51] Section 16(3) codifies the principle of “advancement” from Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182. In Jones, Chief Justice Laskin for the Court at pp. 189 - 90 stated that the residual power “for the peace, order and good government of Canada” under the opening words of s. 91 of the Constitution Act, 1867 entitled Parliament to enact official languages legislation to advance usage of English and French in Federal institutions. [52] In Société des Acadiens, above, at p. 579, Justice Beetz, for the majority, stated: I think it is accurate to say that s. 16 of the Charter does contain a principle of advancement or progress in the equality of status or use of the two official languages. I find it highly significant however that this principle of advancement is linked with the legislative process referred to in s. 16(3), which is a codification of the rule in Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182. ... [53] To the same effect: Simard (OCA), above, p. 128; Moncton (City) v. Charlebois, (NBCA) above paras. 63,66; Hogg, above, para. 53.6(A). [54] Similarly in Beaulac, Justice Bastarache stated: 24 ...The idea that s. 16(3) of the Charter, which has formalized the notion of advancement of the objective of equality of the official languages of Canada in the Jones case, supra, limits the scope of s. 16(1) must also be rejected. ... [55] Section 16(3) renders intra vires legislation of Parliament or a provincial Legislature which advances the equality and status or use of English and French. Section 16(3) does not constitutionally entrench such legislation or incorporate it into the Charter. Breach of such legislation does not access s. 24(1) of the Charter. [56] In Lalonde v. Ontario, above, the Ontario Court of Appeal considered a similar issue. The Court (pp. 618 - 19) stated: [90] Montfort adopts an argument based on s. 16(3) of the Charter advanced by two of the interveners, the Commissioner of Official Languages of Canada and La Fédération des communautés francophones et acadienne du Canada. They submit that once the province established Montfort as a homogeneous francophone institution, s. 16(3) provided a constitutional shield, limiting the right of Ontario to affect or reduce that status. Section 16(3) embodies the constitutional objective of advancing toward the substantive equality of Canada's two official languages. This objective, it is submitted, is to be achieved by means of a "ratchet" principle. It is argued that once Ontario takes a step in the direction of advancing the substantive equality of French, s. 16(3) "ratchets" that step to the level of a constitutional right, limiting any retreat from that advance. ... The Court (pp. 620 -21) rejected the “ratchet” argument: [92] We are not persuaded that s. 16(3) includes a "ratchet" principle that clothes measures taken to advance linguistic equality with constitutional protection. Section 16(3) builds on the principle established in Jones v. New Brunswick (A.G.), [citation omitted] that the Constitution's language guarantees are a "floor" and not a "ceiling" and reflects an aspirational element of advancement toward substantive equality. The aspirational element of s. 16(3) is not without significance when it comes to interpreting legislation. However, it seems to us undeniable that the effect of this provision is to protect, not constitutionalize, measures to advance linguistic equality. The operative legal effect of s. 16(3) is determined and limited by its opening words: "Nothing in this Charter limits the authority of Parliament or a legislature". Section 16(3) is not a rights-conferring provision. It is, rather, a provision designed to shield from attack government action that would otherwise contravene s. 15 or exceed legislative authority.... [57] In my view section 16(3) of the Charter has not constitutionalized s. 530 of the Criminal Code. The violation of s. 530 in this case did not constitute a violation of s. 16(3) of the Charter. [58] Section 530's Quasi-Constitutional Status: In Beaulac at para. 21 under the heading “The Constitutional Background”, Justice Bastarache stated that official languages legislation “belongs to that privileged category of quasi-constitutional legislation which reflects ‘certain basic goals of our society’ and must be so interpreted ‘as to advance the broad policy considerations underlying it’.” Justice Bastarache continued: 23. When s. 530 was promulgated in British Columbia, on January 1, 1990, the scope of the language rights of the accused was not meant to be determined restrictively. The amendments were remedial (see Interpretation Act, R.S.C., 1985, c. I-21, s. 12), and meant to form part of the unfinished edifice of fundamental language rights ... I repeat that a trial before a judge or jury who understand the accused's language should be a fundamental right and not a privilege. ... 25. Language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada; [Supreme Court of Canada Emphasis] [59] In Beaulac the Supreme Court of Canada ruled that the accused’s right to apply for a bilingual trial under s. 530(4) was denied. The court ordered a new trial under s. 686 of the Criminal Code. The court did not rule that there had been a breach of the Charter which accessed the remedies under s. 24(1) of the Charter. [60] The quasi-constitutional status of s. 530 invokes a broad and purposive interpretation of the statutory language. But s. 530 is not entrenched as a provision of the Charter. Its breach does not invoke s. 24(1) of the Charter. [61] “Normative Force” of Unwritten Language Rights: In Reference re Remuneration of Judges, above, Chief Justice Lamer (paras. 95 and 104) stated that unwritten principles of the constitution incorporated by the preamble to the Constitution Act, 1867 are “organizing principles” which “fill out gaps in the express terms of the constitutional scheme.” [62] In Reference re Secession of Quebec, [1998] 2 S.C.R. 217, the Supreme Court identified protection of minority language rights as one such unwritten principle: 79. The fourth underlying constitutional principle we address here concerns the protection of minorities. There are a number of specific constitutional provisions protecting minority language, religion and education rights. ... 80. .... We emphasize that the protection of minority rights is itself an independent principle underlying our constitutional order. The principle is clearly reflected in the Charter's provisions for the protection of minority rights. ... Ms. MacKenzie’s factum relies on this passage from para. 80. [63] In the Secession Reference the Court stated that these unwritten principles have independent and “powerful normative force”: 51. Although these underlying principles are not explicitly made part of the Constitution by any written provision, other than in some respects by the oblique reference in the preamble to the Constitution Act, 1867, it would be impossible to conceive of our constitutional structure without them. The principles dictate major elements of the architecture of the Constitution itself and are as such its lifeblood. 52. The principles assist in the interpretation of the text and the delineation of spheres of jurisdiction, the scope of rights and obligations, and the role of our political institutions. Equally important, observance of and respect for these principles is essential to the ongoing process of constitutional development and evolution of our Constitution as a "living tree", ... 53. Given the existence of these underlying constitutional principles, what use may the Court make of them? In the Provincial Judges Reference, supra, at paras. 93 and 104, we cautioned that the recognition of these constitutional principles (the majority opinion referred to them as "organizing principles" and described one of them, judicial independence, as an "unwritten norm") could not be taken as an invitation to dispense with the written text of the Constitution. On the contrary, we confirmed that there are compelling reasons to insist upon the primacy of our written constitution. A written constitution promotes legal certainty and predictability, and it provides a foundation and a touchstone for the exercise of constitutional judicial review. However, we also observed in the Provincial Judges Reference that the effect of the preamble to the Constitution Act, 1867 was to incorporate certain constitutional principles by reference, a point made earlier in Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455, at pp. 462-63. In the Provincial Judges Reference, at para. 104, we determined that the preamble "invites the courts to turn those principles into the premises of a constitutional argument that culminates in the filling of gaps in the express terms of the constitutional text". 54. Underlying constitutional principles may in certain circumstances give rise to substantive legal obligations (have "full legal force", as we described it in the Patriation Reference, supra, at p. 845), which constitute substantive limitations upon government action. These principles may give rise to very abstract and general obligations, or they may be more specific and precise in nature. The principles are not merely descriptive, but are also invested with a powerful normative force, and are binding upon both courts and governments. "In other words", as this Court confirmed in the Manitoba Language Rights Reference, supra, at p. 752, "in the process of Constitutional adjudication, the Court may have regard to unwritten postulates which form the very foundation of the Constitution of Canada". ... [emphasis added] [64] The New Brunswick and Ontario Courts of Appeal recently have ruled that the unwritten constitutional principle of respect for minorities, cited in the Secession Reference, applies specifically to minority language rights. [65] In Moncton (City) v. Charlebois, above, the New Brunswick Court of Appeal referred to the Secession Reference and stated: [55] In short, we can draw from this decision of the Supreme Court the following conclusions which are useful for the interpretation of language rights: respect for minority rights is an unwritten principle which underlies the Canadian Constitution; it may be used to clarify the written text of the Constitution; and it promotes the ongoing evolution of the constitutional process. ... [58] In the aforementioned Reference case, the Supreme Court expressly acknowledged that these underlying constitutional principles may be used to fill gaps in the express terms of the constitutional text. In this case, the arguments of the appellant and the intervenors clearly indicate that they are invoking the underlying principle of minority protection articulated in the aforementioned Reference case to expound the expression “statutes of the Legislature” used in subsection 18(2) and to favor a broad and generous interpretation. As I understand the effect of the statements made by the Supreme Court concerning the use of these principles, I think the argument that this unwritten and underlying principle can also be used independently of any constitutional text, as a basis of an application for judicial review to strike down government action is not very convincing. I believe that the “powerful normative force” referred to by the Supreme Court concerns the interpretation of constitutional texts and not the creation of rights outside of the constitutional texts. [66] In Lalonde v. Ontario, supra, a provincial commission wished to close a Francophone hospital. The Ontario Court of Appeal used the unwritten constitutional principles from the Secession Reference, to interpret restrictively the Commission’s statutory discretion to close the hospital. As a result, the court quashed the decision to close the hospital. The Court at para. 116 referring to the Secession Reference stated: “The unwritten principles of the constitution do have normative force.” The Court described the nature of this normative force: [118] In his very helpful discussion of the unwritten or organizing principles of the Constitution “References, Structural Argumentation and the Organizing Principles of Canada’s Constitution” (2001), 80 Can. Bar. Rev. 67 at 83 - 86, Professor Robin Elliot draws an important distinction between the use of unwritten or structural principles “as independent bases upon which to impugn the validity of legislation” and their use “as aids to interpretation or otherwise to assist in the resolution of constitutional issues”. Professor Elliot suggests that when used to impugn the validity of legislation or government action, the unwritten principles “can fairly be said to be generated by necessary implication from the text of the Constitution.” [Emphasis in original] On this theory, when the organizing principles give rise to rights capable of impugning the validity of legislation, they are grounded in the text of the constitution. Although not expressly stated by the Constitution, such rights are immanent in the text when it is understood and interpreted in a proper and complete legal, historical, and political context. When used in this way, the unwritten or organizing principles allow the courts to unlock the full meaning of the Constitution and to flesh out its terms, as explained by Lamer, C.J.C. in the Provincial Court Judges’ Reference at p. 69, even to the extent of allowing courts “to fill out gaps in the express terms of the constitutional scheme”. [119] Professor Patrick Monahan draws a similar distinction in “The Public Policy Role of the Supreme Court of Canada in the Secession Reference” (1999), 11 N.J.C.L. 65 at 75 - 77. He observes that when following the interpretative theory: [T]he court should attempt to fill in that gap by adopting an interpretation that is most consistent with the underlying logic of the existing text, and then to rely upon that logic in order to “complete” the constitutional text. [120] This is to be contrasted with what Professor Monohan describes at p. 77 as an unacceptable conception of judges “as akin to constitutional drafters. On this view the court should fill in the gap by relying upon its own conception as to the best or most appropriate set of constitutional norms that should be added to the existing text.” [121] The unwritten principles of the Constitution do not confer on the judiciary a mandate to rewrite the Constitution’s text. [67] These authorities support the conclusions that there is an unwritten principle of the Constitution governing the protection of minority language rights, and this principle has normative force. I need not consider the ambit or degree of the normative force . From the passages I have quoted (Secession Reference, para. 53, Charlebois, para. 58, LaLonde, para. 121) it is clear that the principle does not amend the text of the Charter of Rights. [68] There has been no infringement or denial of Ms. MacKenzie’s rights under the Charter. The SCAC misdirected itself and erred in law by ruling that a breach of s. 530(3) breached the Charter. This case involves the appropriate remedy for the breach of s. 530. Section 24(1) of the Charter applies to “any one whose rights or freedoms, as guaranteed by the Charter, have been infringed or denied.” Section 24(1) is not available to Ms. MacKenzie. This affects the approach to determining the appropriate remedy, whether a stay or a new trial, as will be discussed. Third Issue: What is the appropriate remedy? [69] Was the stay an option? Had there been a breach of the Charter, the analysis would begin with s. 24(1). As there is no Charter breach, the starting point is s. 686 of the Criminal Code incorporated for the SCAC by s. 822(1) of the Criminal Code and s. 7(1) of the Summary Proceedings Act. Section 686(2) states that where the SCAC allows an appeal from a conviction, the court shall quash the conviction and (a) direct a judgment or verdict of acquittal to be entered; or (b) order a new trial. There is no express reference to a stay. [70] In R. v. Jewitt, [1985] 2 S.C.R. 128, the Supreme Court of Canada ruled that, even outside the Charter, a criminal court has jurisdiction to order a stay. Chief Justice Dickson for the Court stated (pp. 136-7): 23. It seems to me desirable and timely to end the uncertainty which surrounds the availability of a stay of proceedings to remedy abuse of process. Clearly, there is a need for this Court to clarify its position on such a fundamental and wide-reaching doctrine. ... 25. I would adopt the conclusion of the Ontario Court of Appeal in R. v. Young, [(1984), 40 C.R. (3d) 289, at 329], and affirm that “there is a residual discretion in a trial court judge to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency and to prevent the abuse of a court's process through oppressive or vexatious proceedings”. I would also adopt the caveat added by the Court in Young that this is a power which can be exercised only in the “clearest of cases”. [71] In R. v. Conway, [1989] 1 S.C.R. 1659 at 1667, Justice L’Heureux-Dubé confirmed these comments from Jewitt and continued: 8. Under the doctrine of abuse of process, the unfair or oppressive treatment of an appellant disentitles the Crown to carry on with the prosecution of the charge. The prosecution is set aside, not on the merits (see Jewitt, supra, at p. 148), but because it is tainted to such a degree that to allow it to proceed would tarnish the integrity of the court. [72] In R. v. Power, [1994] 1 S.C.R. 601 the court considered whether s. 686(4) of the Criminal Code empowered an appeal court with discretion to stay proceedings. Justice L’Heureux-Dubé for the majority(p. 612) stated that it is “undisputed that courts have an inherent and residual discretion to prevent an abuse of the court’s process.” Justice L’Heureux-Dubé (pp. 613, 615) reaffirmed the principles from Jewitt and Conway and stated (pp. 615-16): I, therefore, conclude that, in criminal cases, courts have a residual discretion to remedy an abuse of the court's process but only in the "clearest of cases", which, in my view, amounts to conduct which shocks the conscience of the community and is so detrimental to the proper administration of justice that it warrants judicial intervention. To conclude that the situation "is tainted to such a degree" and that it amounts to one of the "clearest of cases", as the abuse of process has been characterized by the jurisprudence, requires overwhelming evidence that the proceedings under scrutiny are unfair to the point that they are contrary to the interest of justice. ... Where there is conspicuous evidence of improper motives or of bad faith or of an act so wrong that it violates the conscience of the community, such that it would genuinely be unfair and indecent to proceed, then, and only then, should courts intervene to prevent an abuse of process which could bring the administration of justice into disrepute. Cases of this nature will be extremely rare. Justice L’Heureux-Dubé ruled that absent such an abuse, there was no power to order a stay (p. 620): For these reasons, I am of the view that s. 686(4) of the Criminal Code does not confer a court of appeal any discretion, however limited, beyond the general power to control its process in case of abuse. [73] Deference to prosecutorial discretion is the reason that the court has limited discretion to stay. In Power Justice L’Heureux-Dubé stated (pp. 624-5): It is important to understand the rationale for this judicial deference to the prosecutor's discretion. In this regard, the reasons of Viscount Dilhorne in Director of Public Prosecutions v. Humphrys, [1976] 2 All E.R. 497 (H.L.), at p. 511, are instructive: A judge must keep out of the arena. He should not have or appear to have any responsibility for the institution of a prosecution. The functions of prosecutors and of judges must not be blurred. If a judge has power to decline to hear a case because he does not think it should be brought, then it soon may be thought that the cases he allows to proceed are cases brought with his consent or approval. [Supreme Court’s emphasis] Justice L’Heureux-Dubé concluded (p. 629): My colleague's invitation to the court of appeal to interfere with prosecutorial discretion, absent abuse of process, goes against the grain of doctrine and jurisprudence. It also carries with it the dangers that have been outlined above. In my view, there is neither a need nor a justification for an interpretation of s. 686(4) of the Criminal Code which extends the discretion of the courts in this manner. [74] The Supreme Court has adopted these principles in later cases: R. v. O’Connor, [1995] 4 S.C.R. 411 at paras. 68, 82; R. v. Bramwell, [1996] 3 S.C.R. 1126; R. v. Carosella, [1997] 1 S.C.R. 80 at para. 52; R. v. Regan, [2002] 1 S.C.R. 297 at para. 53. [75] In O’Connor, supra Justice L’Heureux-Dubé substantially folded the common law doctrine of abuse of process into fundamental justice under s. 7 of the Charter: 63. In fact, it may be wholly unrealistic to treat the latter as wholly distinct from the former. ... It would violate the principles of fundamental justice to be deprived of one's liberty under circumstances which amount to an abuse of process and, in my view, the individual who is the subject of such treatment is entitled to present arguments under the Charter and to request a just and appropriate remedy from a court of competent jurisdiction. ... 70. ... I conclude that the only instances in which there may be a need to maintain any type of distinction between the two regimes will be those instances in which the Charter, for some reason, does not apply yet where the circumstances nevertheless point to an abuse of the court's process. 71. The principles of fundamental justice both reflect and accommodate the nature of the common law doctrine of abuse of process. Although I am willing to concede that the focus of the common law doctrine of abuse of process has traditionally been more on the protection of the integrity of the judicial system whereas the focus of the Charter has traditionally been more on the protection of individual rights, I believe that the overlap between the two has now become so significant that there is no real utility in maintaining two distinct analytic regimes. We should not invite schizophrenia into the law. ... 73. As I have already noted, the common law doctrine of abuse of process has found application in a variety of different circumstances involving state conduct touching upon the integrity of the judicial system and the fairness of the individual accused's trial. For this reason, I do not think that it is helpful to speak of there being any one particular "right against abuse of process" within the Charter. Depending on the circumstances, different Charter guarantees may be engaged. ... In addition, there is a residual category of conduct caught by s. 7 of the Charter. This residual category does not relate to conduct affecting the fairness of the trial or impairing other procedural rights enumerated in the Charter, but instead addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process. [76] In R. v. Regan, supra, para. 50, Justice LeBel for the majority referred to this passage and stated: 50. ... L'Heureux-Dubé J. thus held that now, when the courts are asked to consider whether the judicial process has been abused, the analysis under the common law and the Charter will dovetail ... In an earlier judgment, McLachlin J. (as she then was) expressed it this way: ... abuse of process may be established where: (1) the proceedings are oppressive or vexatious; and, (2) violate the fundamental principles of justice underlying the community's sense of fair play and decency. The concepts of oppressiveness and vexatiousness underline the interest of the accused in a fair trial. But the doctrine evokes as well the public interest in a fair and just trial process and the proper administration of justice. I add that I would read these criteria cumulatively. (R. v. Scott, [1990] 3 S.C.R. 979, at p. 1007, 61 C.C.C. (3d) 300.) [77] In United States of America v. Cobb, [2001] 1 S.C.R. 587 at paras 36-40 the court confirmed that common law abuse of process remains as an independent principle although it is substantially overtaken by the Charter. [78] As discussed above, there was no breach of ss. 15, 16 and 19 of the Charter. Given this, before the SCAC could consider a stay, it was necessary to conclude that the court’s process had been abused as defined above, in a manner which would constitute abuse of process at common law (Power), violate principles of fundamental justice under s. 7 or deny Ms. MacKenzie’s right to a fair trial under s. 11 (d). The SCAC did not consider these issues before ordering the stay. This was a misdirection and an error of law. [79] Nothing in the record suggests (1) that this is one of the “clearest cases” where there is “overwhelming evidence that the proceedings under scrutiny are unfair to the point that they are contrary to the interest of justice” (Power) or (2) that there has been a denial of principles of fundamental justice under s. 7 or (3) denial of Ms. MacKenzie’s right to a fair trial under s. 11(d). [80] The respondent’s factum states: Further we submit that in 1999 it may have been by inadvertence that the judges in Nova Scotia did not advise the unrepresented accuse[d] of his or her rights but 4 years later we submit that it is an intentional breach done systemically by judges across the province which has only one cure, a stay. [81] The entire transcript of Ms. MacKenzie’s arraignment in the Provincial Court on June 5, 2002 states: THE COURT: Nicole MacKenzie? Ms. MacKenzie is here? Ms. MacKenzie, this was a charge of speeding at Chapel Island on April 24th. How do you plea? MS. MACKENZIE: Not guilty. Can I have a date for trial? THE COURT: Alright, November 6th for trial, that’s here in Arichat at 11 o’clock as I’ve indicated before, if you don’t appear there’ll be an automatic conviction on that charge. Okay that’s all until then, then. END OF PROCEEDING Nothing in the record suggests that the Provincial Court judge intentionally failed to give the notice under s. 530(3) or that this is done systemically by judges across Nova Scotia. [82] There is failure to comply with s. 530(3). There is no abuse of process or denial of Ms. MacKenzie’s rights to fundamental justice and a fair trial under ss. 7 and 11(d) of the Charter. [83] Accordingly, the stay was not an option for the SCAC. The SCAC should have ordered a new trial under ss. 686(2)(b) and 822(1) of the Criminal Code. [84] Test for a stay: Had there been an abuse of process or a Charter violation, it would then have been necessary for the SCAC to consider whether a stay is the just and appropriate remedy at common law or under s. 24(1). In Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, at paras. 88-92 the court unanimously ruled that the same test, as discussed below, applies to consideration of a stay as a result of common law abuse of process or under s. 24(1). [85] In O’Connor, supra, Justice L’Heureux-Dubé defined the prerequisites for a stay under s. 24(1): 75. Where there has been a violation of a right under the Charter, s. 24(1) confers upon a court of competent jurisdiction the power to confer "such remedy as the court considers appropriate and just in the circumstances". Professor Paciocco, supra, at p. 341, has recommended that a stay of proceedings will only be appropriate when two criteria are fulfilled: (1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and (2) no other remedy is reasonably capable of removing that prejudice. I adopt these guidelines, and note that they apply equally with respect to prejudice to the accused or to the integrity of the judicial system. ... 77. There may, however, be exceptional situations where, given the advanced state of the proceedings, it is simply not possible to remedy through reasonable means the prejudice to the accused's right to make full answer and defence. In such cases, the drastic remedy of a stay of proceedings may be necessary ... A stay of proceedings is a last resort, to be taken when all other acceptable avenues of protecting the accused's right to full answer and defence are exhausted. 78 When choosing a remedy for a non‑disclosure that has violated s. 7, the court should also consider whether the Crown's breach of its disclosure obligations has also violated fundamental principles underlying the community's sense of decency and fair play and thereby caused prejudice to the integrity of the judicial system. If so, it should be asked whether this prejudice is remediable. Consideration must be given to the seriousness of the violation and to the societal and individual interests in obtaining a determination of guilt or innocence. Although some of the most salient considerations are discussed immediately below, that discussion is by no means exhaustive. 79 Among the most relevant considerations are the conduct and intention of the Crown. For instance, non‑disclosure due to a refusal to comply with a court order will be regarded more seriously than non‑disclosure attributable to inefficiency or oversight. It must be noted, however, that while a finding of flagrant and intentional Crown misconduct may make it significantly more likely that a stay of proceedings will be warranted, it does not follow that a demonstration of mala fides on the part of the Crown is a necessary precondition to such a finding. ... 81. Finally, in determining whether the prejudice to the integrity of the judicial system is remediable, consideration must be given to the societal and individual interests in obtaining a determination of guilt or innocence. It goes without saying that these interests will increase commensurately to the seriousness of the charges against the accused. Consideration should be given to less drastic remedies than a stay of proceedings ... 82. 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. [86] The Supreme Court of Canada repeatedly has applied O’Connor: Canada (Minister of Citizenship and Immigration )v. Tobiass [1997] 3 S.C.R. 391, at paras. 89 - 106; R. v. Regan, supra, at paras. 53-57; R. v. Bramwell, [1996] 3 S.C.R. 1126, accepting the ruling of the British Columbia Court of Appeal (1996), 106 C.C.C. (3d) 365, at paras. 28, 37; R. v. Gagné (1998) 131 C.C.C. (3d) 444 (Q.C.A.), leave to appeal denied (1999), 239 N.R. 398 (S.C.C.); R. v. Carosella, supra, paras. 52-56. [87] In the present case the SCAC did not consider the O’Connor test. [88] Two points from the O’Connor test are salient here. First, to justify a stay it is necessary that there be evidence to show that, without the stay, the abuse would continue. Second, it is necessary that there be no remedy short of a stay which would prevent this continuing abuse. [89] The importance of these points appears from the rulings of the Supreme Court in Tobiass and Regan. [90] In Tobiass the court stated: 91. The first criterion is critically important. It reflects the fact that a stay of proceedings is a prospective remedy. A stay of proceedings does not redress a wrong that has already been done. It aims to prevent the perpetuation of a wrong that, if left alone, will continue to trouble the parties and the community as a whole in the future. See O'Connor, at para. 82. For this reason, the first criterion must be satisfied even in cases involving conduct that falls into the residual category. See O'Connor, at para. 75. The mere fact that the state has treated an individual shabbily in the past is not enough to warrant a stay of proceedings. For a stay of proceedings to be appropriate in a case falling into the residual category, it must appear that the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society's sense of justice. Ordinarily, the latter condition will not be met unless the former is as well ‑‑ society will not take umbrage at the carrying forward of a prosecution unless it is likely that some form of misconduct will continue. There may be exceptional cases in which the past misconduct is so egregious that the mere fact of going forward in the light of it will be offensive. But such cases should be relatively very rare. [91] In Regan Justice LeBel for the majority stated: 55. ... When dealing with an abuse which falls into the residual category, generally speaking, a stay of proceedings is only appropriate when the abuse is likely to continue or be carried forward. Only in "exceptional", "relatively very rare" cases will the past misconduct be "so egregious that the mere fact of going forward in the light of it will be offensive" (Tobiass, at para. 91). 56. Any likelihood of abuse which will continue to manifest itself if the proceedings continue then must be considered in relation to possible remedies less drastic than a stay. Once it is determined that the abuse will continue to plague the judicial process, and that no remedy other than a stay can rectify the problem, a judge may exercise her or his discretion to grant a stay. ... 107. There was no discussion in the trial judge's reasons of any ongoing impact of the abuse he found. As discussed earlier, the embarrassment to the appellant of the premature police announcement was overtaken by the charges which would have been laid in any event. Therefore there was no continuing prejudice from this misconduct. ... Therefore this conduct, even if abusive, cannot be said to be manifested or perpetuated if the process continues. ... All told, even if this conduct did amount to abuse, it falls at the low end of the spectrum of seriousness, and is not significant enough that proceeding in its wake would, in and of itself, shock the community's sense of fairness and decency. ... 122. I agree with the Court of Appeal that if the trial judge had properly applied the law, he would have concluded that the abuse that he had identified was not ongoing, and that indeed, the remedies of removing Crown Potts from the prosecution and of recognizing, in the circumstances of this case, the direct indictment as a fresh, objective review of the charges put an end to any lingering doubt that the appellant was continuing to face a prosecution that was abusive, vexatious, oppressive or in any way an affront to decency and fair play. [92] In the present case, notwithstanding the argument advanced by the respondent, there is nothing to show continuing violation of s. 530(3). If, as submitted in the respondent’s factum, “it is an intentional breach done systemically by judges across the province”, this must be established by evidence on the record. There was no such evidence here. The transcript of the arraignment is quoted above. Applying the test in O’Connor: (a) There was no prejudice to Ms. MacKenzie which would be manifest, perpetuated, or aggravated in the future by the conduct or outcome of a new trial. (b) There was no evidence of systemic discrimination and therefore no basis to say that the failure to comply with s. 530(3) impugned the integrity of the judicial system or would continue to do so in the future if there was a new trial. [93] In Regan the trial judge granted the stay which was overturned by the Nova Scotia Court of Appeal. The majority of the Supreme Court of Canada (paras 105-8, 121-3) ruled that by failing to apply the O’Connor test, the trial judge committed reviewable error for which the Court of Appeal was entitled to overturn the stay. [94] The SCAC’s failure to consider the O’Connor test was an error of law and a misdirection. Had the test been applied, the result would have been an order for a new trial instead of a stay. [95] I would grant leave to appeal, allow the appeal, set aside the stay and order a new trial. Fichaud, J.A. Concurring: Saunders, J.A. Chipman, J.A.