May 22, 2018

Summary of R v Kuzyk (C)

R v Kuzyk (C), 2016 MBCA 97 (CanLII)
Heard: October 3rd, 2016
Judgment: October 3rd, 2016
Criminal law --- Charter of Rights and Freedoms — Charter remedies [s. 24] — Stay of proceedings
Facts:
Kuzyk was charged with possession of cocaine for purpose of trafficking and possession of proceeds of crime. A search warrant for his residence was obtained by an officer based on information provided by confidential informant. After preparing information to obtain a warrant, the officer destroyed notes he’d made of his conversation with the informant. At trial, Kuzyk sought judicial stay of proceedings under s. 24(1) Canadian Charter of Rights and Freedoms on the basis that the officer's actions breached his right under s. 7 Charter to make full answer and defence. TJ found breach of s. 7 rights, but did not grant stay of proceedings and convicted Kuzyk.
MBCA: Accused appealed convictions.
Issue: Did TJ err by concluding that this was not one of the “clearest of cases” in which the extraordinary remedy of a stay of proceedings should be granted?
Held: Appeal dismissed.
In determining whether to grant stay, TJ correctly applied R. v. O'Connor test. TJ turned her mind to deficiencies in Crown's case, including strengths and weaknesses in officer's evidence, and weighed evidence appropriately. Given evidence before her and overall context of case, TJ made reasonable findings of fact and credibility that could not be described as palpable and overriding errors. TJ made no misapprehensions of fact or law, nor was her decision so clearly wrong as to amount to an injustice. No basis for appellate intervention.