R v Singh: The Ontario Court of Appeal Holds that Choreographed Beatings Warrant a Stay of Conviction

The Ontario Court of Appeal has laid down a zero tolerance policy on police beating of suspects to obtain confessions. In R v Singh, 2013 ONCA 750 [Singh], the court held that a suspect’s conviction for robbery should be stayed because the police subjected him to repeated beatings during his interrogation. The trial judge dismissed the accused’s application for a stay of the conviction and instead opted to reduce the accused’s sentence by one year. The court disagreed that a reduced sentence properly remedied the policy brutality: “[T]he state misconduct here was so egregious that the mere fact of going forward in light of it would be so offensive to society that a stay of the conviction is warranted in the circumstances” (Singh, para 34).

The accused in this case broke into a warehouse, tied up a worker, and stole a quantity of copper piping. After his arrest, police offices assaulted the accused on three separate occasions. The accused was punched, kicked, and choked to the point where he asked the officers to kill him. The accused then gave an exculpatory video statement, but he was convicted at trial.

The Stay as Remedy

Despite her recognition of the serious nature of the police misconduct, the trial judge dismissed the accused’s application for a stay of the conviction. She gave four reasons: (i) The police brutality did not affect the fairness of the trial; (ii) the accused’s injuries were not permanent and did not result in serious harm; (iii) the accused was convicted of serious charges; and (iv) there are very few Canadian cases where police brutality was remedied with a stay.

The court begins its analysis by noting that the trial judge’s reasons for not imposing a stay are not exhaustive of the situations where a stay may be imposed. Rather, the court applies R v O’Connor, [1995] 4 SCR 411 [O’Connor], where the Supreme Court of Canada held that a stay can be granted even if the state misconduct did not affect trial fairness. This “residual category” of cases

[a]ddresses 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 (O’Connor, para 73).

Despite the Supreme Court’s caution that such cases will be rare, the court found that this case warrants a stay of the conviction. The court also found that the lack of jurisprudence on this issue is not determinative. Rather, it held that the choreographed and serious nature of the police misconduct had systemic implications that would impugn the integrity of the justice system were the conviction not stayed.

Choreographed Beatings as a Factor?

The court is clear that a finding of prejudice to trial fairness is not the only avenue to staying a conviction—O’Connor’s residual category can be applied in cases of particularly egregious state misconduct. What is less clear is where the threshold for applying O’Connor lies.

The court does not provide a test for determining this threshold, but it provides some guidance. This case involved repeated beatings over three separate incidents in what appeared to be a deliberately choreographed interrogation technique. The court repeatedly invoked the seemingly systematized approach to these beatings to justify its granting of the stay, so it appears that the degree of organization or institutionalization involved in the state misconduct is one factor that can guide lower courts in future cases.