Introduction
“The unthinkable has come to pass.”[1] Those were the concluding remarks of Ontario Superior Court Justice Conlan J., in his reasons granting a stay of proceedings for three individuals charged with first-degree murder. Arising from events at Maplehurst Correctional Complex (“MCC”) in December of 2023, R. v Whitlock is a landmark representation of state conduct so egregious as to attract one of the rarest remedies available in criminal law, a judicial stay of proceedings. Entering a stay of proceedings is an explicit signal from the Court that such abusive actions will not be tolerated. This article examines the egregious use of force by MCC staff that led to this landmark ruling.
What happened at Maplehurst Correctional Complex?
In order to understand the drastic measure taken by the Court, it is helpful to understand the events that transpired at MCC in December of 2023. On December 20th, a correctional officer working in Unit 8 of the institution was assaulted by an inmate.[2] The situation was quickly contained, there was no ongoing imminent threat, and no further incidents of note took place on that day.[3] However, on December 22nd, the Institutional Crisis Intervention Team (“ICIT”) was deployed to Unit 8, where they remained active for two full days.[4] According to the findings of fact, the following events transpired between December 22nd and 23rd. Every inmate in Unit 8 was forcibly extracted from their cell using painful restraint techniques, zip-tied, and strip-searched.[5] They were left in only their boxer shorts, restrained, sitting on the concrete floor facing the wall while officers searched their cells.[6] Their belongings, including bedding, clothing, and personal effects, were confiscated, leaving their cells “close to barren.”[7] The exhaust fans were turned on to intentionally drop the temperature in the institution, and inmates were left without appropriate clothing from the time they were removed from their cells until December 24.[8] Upon examination of the facts, the Court concluded that ICIT was deployed for vengeance, rather than a legitimate security aim.[9] As noted above, the assault on the officer had taken place two days earlier and had been quickly contained with no subsequent incident.
The Law: Sections 7, 12, & 24(1) of the Charter of Rights and Freedoms
Section 7: Life, Liberty and Security of the Person
The Charter of Rights and Freedoms was crafted with the intention of protecting the fundamental rights of each and every individual in Canada, including those currently incarcerated. S. 7 of the Charter protects against the deprivation of “life, liberty, and security of the person” except in accordance with the principles of fundamental justice. S. 7 protections apply to both an individual’s physical and psychological integrity.[10] Not every infringement of an individual’s s. 7 rights triggers Charter protections. Rather, the conduct must have “a serious and profound effect on the person’s psychological integrity,”[11] and be “significant enough to warrant constitutional protection.”[12] For an individual to show that their s. 7 rights have been violated, it must be proven that it is more likely than not that the state conduct was the cause of the harm suffered, and that the harm was serious.[13]
Section 12: Cruel and Unusual Treatment or Punishment
- 12 of the Charter prohibits cruel and unusual treatment or punishment, and, in the context of this case, acted as an important check on the state’s use of power. The Supreme Court has held that s. 12 is violated where state conduct is so excessive as to be “grossly disproportionate” that it “outrage[s] standards of decency.”[14] While frequently applied to sentencing cases, the Supreme Court has made clear that s. 12 captures, for example, the infliction of physical or psychological suffering, or state conduct that is akin to torture, as was the case in Whitlock. The prohibition on the use of torture, whether against a free individual or a prisoner, is a basic tenet of Canadian law and society. The Court’s ruling in Whitlock is a reflection of a collective rejection of the use of such inhumane methods.
Section 24(1): Remedies
- 24(1) of the Charter empowers courts to grant any remedy they consider “appropriate and just in the circumstances.”[15] Within this power is the ability to enter a judicial stay, halting criminal proceedings against individuals charged with a criminal offence. A judicial stay of proceedings is the “ultimate remedy” reserved for the “clearest of cases.”[16] It is a declaration that no lesser remedy would sufficiently redress a breach of an individual’s Charter rights or adequately distance the justice system from egregious state conduct. In other words, a stay of proceedings is warranted in two distinct circumstances; (1) where continuing the proceedings would do more harm to the rights of the individual than it would do good for society (called the “main category”); and (2) where continuing the proceedings would undermine the integrity of the justice system as a whole (called the “residual category”).[17] In Whitlock, the Court concluded that the facts fell squarely within the residual category.
It is trite law that a stay should only be granted where three factors are established: (1) it must be shown that the harm caused by the abuse in question will be made worse or allowed to continue should the trial proceed, (2) that there is no other remedy that would adequately address the conduct in question or correct the harm suffered by the individual, and (3) the presiding justice must determine whether society’s interests are best served by either continuing or by halting the proceedings.[18]
When does the use of force become unjustifiable?
While the state has the legal authority to punish individuals (such as using necessary force to effect an arrest or imposing a sentence upon criminal conviction), that authority has limits. In applying the law to the facts, the Court concluded that the events at MCC on December 22nd and 23rd amounted to a form of corporal punishment and was “akin to torture.”[19] S. 12 of the Charter necessitates that (1) the punishment is of such character or duration as to outrage the public conscience or be degrading to human dignity; (2) the punishment goes beyond what is necessary for the achievement of a valid social aim, having regard to the legitimate purposes of punishment and the adequacy of possible alternatives, or (3) the punishment is arbitrarily imposed in the sense that it is not applied on a rational basis in accordance with ascertained or ascertainable standards.[20]
Here, the Court concluded not only that there was no legitimate goal, but that the techniques employed violated the applicable policy on the use of force (the ascertainable standard). It was further held that those techniques were “akin to torture.”[21] In coming to this conclusion, the Court noted that the actions of correctional staff were done so to (1) punish all the inmates in Unit 8 and (2) intimidate or coerce those same inmates in retribution for the assault on the guard.[22] The Court reasoned that forcing the inmates to remain in their underwear was offensive to “public standards of decency, or propriety and was carried out arbitrarily;[23] punishing 200 inmates for the actions of one, without any causal link to the offending conduct, is clearly arbitrary.[24] The Court further considered whether the treatment was “unusually severe and hence degrading to human dignity and worth.”[25] Again, the Court found that strip-searching every inmate in Unit 8, forcing them to remain in only their boxer shorts without any bedding for up to 48 hours, and purposefully allowing cold winter air into the institution was offensive to the concept of human dignity.[26]
The appropriate remedy
In deciding on the appropriate remedy, the Court concluded that the facts fell squarely within the residual category for a judicial stay.[27] In accordance with the applicable test, the Court reasoned that not granting a stay would “manifest, perpetuate, or aggravate” the state misconduct that was akin to torture. Entering a judicial stay was found to be the only remedy that would adequately dissociate the justice system from the impugned conduct.[28] In considering the prospective nature of a judicial stay, the Court concluded that allowing the trial to continue would “leave an indelible scar on the administration of justice and continue to trouble us all.”[29] Ultimately, among various other reasons, the deployment of ICIT for purely vengeful purposes, the violation of both legislative and policy requirements regulating the use of force, and the abuses suffered by the applicants necessitated a stay of proceedings to protect the integrity of the justice system.[30]
The prejudice caused by the abuse in question “will be manifested, perpetuated, or aggravated through the conduct of a trial or by its outcome,” and (2) “there must be no alternative remedy capable of redressing the prejudice”[7] If, upon completion of the first two stages “there still remains uncertainty in the mind of the judge,”[31] the third step of the test, which balances the “interest in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system,” against the “interest that society has in having a final decision on the merits,”[32] is applied to yield a final result.[33] The language of the test makes clear that a stay is prospective.
Supreme Court jurisprudence recognizes two categories of judicial stays: The main category, or trial fairness category, and the “residual” category. While the test remains the same, relevant jurisprudence indicates that the analysis when considering a stay is distinct depending on which category best captures the impugned conduct.[34] The “main” category is applicable where state misconduct has seriously infringed on the accused’s right to a fair trial.[35] The purpose of a stay within the main category is to redress harm suffered by an individual. [36] The residual category has been fashioned to address state misconduct, which “undermines the fundamental justice of the system.”[14] [15] The focus of the residual category is not to provide redress to the individual, but to dissociate the justice system as a whole from egregious state misconduct.[16]
[1] R. v. Whitlock, 2025 ONSC 6006 at para 544 (Whitlock).
[2] Ibid, at para 6.
[3] Ibid at para 116.
[4] Ibid., at para 8.
[5] Ibid at paras 9, 201.
[6] Ibid at paras 9-10.
[7] Ibid at para 10.
[8] Ibid at paras 132, 135.
[9] Ibid at para 201.
[10] R. v Donnelly, 2016 ONCA 998 at para 106-109 (“Donnelly”).
[11] Ibid at para 107.
[12] Ibid
[13] Ibid at para 10.
[14] R. v Smith, [1987] 1 S.C.R. 1045 at 1072-73 (“Smith”).
[15] Canadian Charter of Rights and Freedoms, s ,7, 1982, c 11.
[16] R. v. O’Connor, [1995] 4 S.C.R. 411 at para 188.
[17] R v. Babos, 2015 SCC 16 para 34 (“Babos”).
[18] Ibid at para 32-34.
[19] Whitlock, supra note 1 at paras 465-66.
[20] Smith, supra note 14.
[21] Whitlock, supra note 1 at paras 446, 486.
[22] Ibid at para 434.
[23] Ibid at para 486.
[24] Ibid at para 493.
[25] Ibid at para 486.
[26] Ibid.
[27] ibid para 444.
[28] Ibid at paras 123-128.
[29] Ibid at para 529.
[30] Ibid at para 526-528.
[31] Whitlock, supra note 1 at para 448.
[32] R v. Babos, 2015 scc 16 at para 32. (“Babos”).
[33] Ibid at para 40.
[34] Ibid at paras 31-32.
[35] Babos, supra note 19 at para 34.
[36] Ibid.
