Prisoner assault acquittal upheld

Mike Novakowski
December 03, 2012
By Mike Novakowski
A trial judge did not err in staying proceedings against an accused for a Charter violation because he was assaulted by a prison guard. In R. v. Bellusci, 2012 SCC 44 a guard was taking the accused and other prisoners back to the penitentiary after a court appearance. Bellusci was abusive, insulting and crude to the guard, who then told the other prisoners Bellusci was a rapist, placing him in danger. Bellusci responded by threatening to rape the guard's wife and children. As the guard began opening the van's cell door, Bellusci forced it open, injuring the guard, who then assaulted him while he was chained, handcuffed and shackled in a secure cell. Bellusci's injuries included imprints of wire mesh with petechiae, deformation of the left forearm and bumps on his head and neck, resulting in his overnight observation in the prison infirmary. Bellusci was charged with assault causing bodily harm, assaulting a peace officer and intimidation of a justice system participant.

A trial judge did not err in staying proceedings against an accused for a Charter violation because he was assaulted by a prison guard.

In R. v. Bellusci, 2012 SCC 44 a guard was taking the accused and other prisoners back to the penitentiary after a court appearance. Bellusci was abusive, insulting and crude to the guard, who then told the other prisoners Bellusci was a rapist, placing him in danger. Bellusci responded by threatening to rape the guard's wife and children.

As the guard began opening the van's cell door, Bellusci forced it open, injuring the guard, who then assaulted him while he was chained, handcuffed and shackled in a secure cell. Bellusci's injuries included imprints of wire mesh with petechiae, deformation of the left forearm and bumps on his head and neck, resulting in his overnight observation in the prison infirmary. Bellusci was charged with assault causing bodily harm, assaulting a peace officer and intimidation of a justice system participant.

At trial in Quebec Court Bellusci was acquitted of both assault charges, since the judge was left with a reasonable doubt, but found guilty on the intimidation charge for the threatened sexual assault. The judge, however, concluded that Bellusci's s. 7 Charter rights had been breached. After considering other remedies, such as a sentence reduction or legal or disciplinary proceedings against the guard, a stay of proceedings was entered under s. 24(1).

In the judge's view, the guard had recklessly provoked Bellusci to threaten him and then responded to his threats by grievously assaulting and unlawfully punishing him. The disclosure that the accused was a sex offender jeopardized his personal safety while imprisoned and wasn't justified. Bellusci's threats, however reprehensible, would likely not have been made but for the guard's inappropriate disclosure. The guard's behaviour in administering the unlawful extrajudicial punishment would shock the public and a stay of proceedings was the only appropriate remedy.

The stay was quashed by the Quebec Court of Appeal and the matter remitted for a continuation of trial. The court found the trial judge committed a reviewable error by overlooking the "non sequitur" between the state misconduct and the stay of proceedings and failed to consider the availability of less drastic remedies.

On a further appeal by Bellusci, Canada's Supreme Court reinstated the stay, finding the trial judge correctly identified and applied the applicable principles of law. Bellusci was attacked by an agent of the state while chained, handcuffed, shackled and confined to his cell in a secure prison van in an apparent act of revenge. His injuries were not trivial.

The judge was aware of the difficult position of prison guards but that could not justify the disclosure, and was also troubled by the further tarnishing of the justice system when other prison guards showed reticent and "sclerotic solidarity" in their testimony.

"Having found that (the accused) had been provoked and subjected by a state actor to intolerable physical and psychological abuse, it was open to the trial judge to decline to enter a conviction against him," said Justice Fish, delivering the unanimous judgement.

Furthermore, the trial judge did consider alternative remedies. He carefully and correctly considered all the relevant principles and, in finding no other remedies appropriate, balanced the competing interests at play, including the difficult position of guards, importance to the justice system of ensuring their protection, seriousness of the charges against Bellusci, integrity of the justice system and the nature and gravity of the Charter violation.

Although Fish may have granted a lesser remedy, trial judges are vested with a broad discretion under s. 24(1) and appellate intervention was unwarranted in this case. As he noted, it is not the role of appellate courts to simply substitute their own exercise of discretion for that of a trial judge just because they would have granted a more generous or limited remedy.

Other cases of police misconduct referenced by the Supreme Court where stays were also entered

Possession for the purposes of trafficking. Police Tasered an accused who was handcuffed, fully restrained and compliant - R. v. Walcott (2008), 57 C.R. (6th) 223 (Ont. S.C.J.).

Driving while disqualified. Police used excessive force in arresting the accused, striking his head several times against a vehicle, causing permanent injuries requiring surgery - R. v. Maskell, 2011 ABPC 176, 512 A.R. 372.

Assaulting police and resisting arrest. Five police officers pepper-sprayed and kneed the accused several times; the accused struck his head on the concrete and suffered a broken jaw. The trial judge was also concerned that police testimony was untruthful - R. v. Jackson, 2011 ONCJ 228, 235 C.R.R. (2d) 289.

Impaired and dangerous driving. Although provoked by unruly behaviour, foul language and the "resistive stance" of the accused, police used excessive force in striking him while he was handcuffed and presented no threat - R. v. Mohmedi, 2009 ONCJ 533, 72 C.R. (6th) 345.

Breaking and entering and possession of concealed weapons and housebreaking tools. Police used excessive force in Tasering the accused, who was 15 years old, during a strip search at the police station - R. v. J.W., 2006 ABPC 216, 398 A.R. 374.

Failing to comply with a condition of release (abstaining from alcohol). Police conducted an unreasonable strip search and Tasered the accused despite the situation being under control, causing bruises, abrasions, burn marks, a broken tooth and bruises to the face - R. v. R.L.F., 2005 ABPC 28, 373 A.R. 114.

Assaulting a peace officer. Despite the violent behaviour of the accused, police used excessive force in pepper-spraying him while he was handcuffed and lying face down on the floor with a foot on his head - R. v. Wiscombe & Tenenbein, 2003 BCPC 418 (CanLII).

Dangerous driving and refusing a breathalyzer test. The accused was forced to remain seated in his own excrement longer than necessary, denied proper clean-up facilities, subjected to rude and ridiculing remarks and arbitrarily and unnecessarily detained - R. v. Murphy (2001), 29 M.V.R. (4th) 50 (Sask. Prov. Ct.).

Impaired driving. The accused was handcuffed for no reason and pepper-sprayed in the eyes for insulting a police officer - R. v. Spannier, 1996 CanLII 978 (B.C.S.C.).

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