“Societal Notions” and the Babos Test – Aiyana McKenzie

In the Manitoba Court of Queen’s Bench’s (“the MBQB”) case R v MJZ (“MJZ”), the accused was charged with multiple offences arising from allegations that he sexually abused his three nephews when they were children. The accused was initially arrested following the allegations first made by two of his nephews and was arrested a second time after the third nephew came forward. Upon his second arrest, the accused was questioned by Detective Sargent Elton Hall of the Winnipeg Police Service (“the Officer”), when the accused refused to make any comments. During the interview, the Officer “rant[ed]” at the accused, and though a few questions were posed to the accused, he refused to answer. The Officer took an angry and aggressive tone and insulted the accused. The Officer made numerous statements that may be considered offensive or insulting, such as telling the accused he will do everything he can to have the accused’s children removed by Child and Family Services, disparaging the accused and the accused’s husband’s “left-wing opinions,” belittling the accused own’s experience of sexual abuse and telling the accused that he has not been “cured” and is not “fixable,” and suggesting that the accused will “enjoy jail”.

The accused in MJZ argued that the Officer’s conduct during the interview was abusive and constituted a breach of his rights protected by section 7 of the Canadian Charter of Rights and Freedoms (“the Charter”), “the right to life, liberty and security of the person”. The accused stated that the Officer’s conduct constituted police misconduct and was an attack on the his dignity and sexuality. Additionally, the accused pointed out that the Officer was aware that the accused had been a victim of sexual abuse and was vulnerable person.

At trial during cross-examination, it was suggested that the Officer’s statements were attacks on the accused and his husband as a gay couple and their gay rights activism. The Officer testified that his tone and aggressive approach towards the accused was intentional and he had discussed taking this approach with his superiors prior to the interview. The Officer was disparaging towards comments expressed by the accused’s husband on Facebook, characterizing these comments as “left-wing bullshit,” and suggested that an unwillingness to take responsibility and apologize for “molesting kids” was “typical Canadian bullshit”. The Officer said at one point “what is wrong with you fucking people?” and clarified that he meant specifically the accused and his husband, not those of their sexual orientation generally. When asked about the Officer’s statement about the accused “enjoying jail,” the Officer denied the statement was a sexual innuendo but admitted that he had “heard about people going to jail and getting sexually assaulted”. The accused in MJZ argued that the Officer’s comments were an attack on the accused’s faith in the justice system.

The Babos Test

The appropriate test in MJZ was the Babos test, created in the Court’s decision in R v Babos, a case in which the accused parties were threatened by a Crown prosecutor and had the police illegally search their vehicle. Per Moldaver J, there are two categories for the Babos test: “where state conduct compromises the fairness of an accused's trial (the “main” category); and (2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the “residual" category)”. In MJZ, the parties agreed that the accused’s claim fell within the “residual” category. The remedy of the Babos test is a stay of proceedings, which Moldaver J. stated was the “most drastic remedy a criminal court can order” as it “permanently halts the prosecution of the accused”. There are three steps in the Babos test:

(1) There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” (Regan, at para. 54);

(2) There must be no alternative remedy capable of redressing the prejudice; and,

(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests 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” (ibid., at para. 57).

Application of the Babos test

Prior to applying the Babos test, the trial judge, Bond J, disparaged the remarks made by the Officer and stated “the denigration of an individual’s political views may inadvertently or otherwise amount to the denigration of that individual’s personal characteristics…such denigration would be inconsistent with fundamental values of our society, including respect for equality and human dignity”. Whilst beginning the test, Bond J referred to Moldaver J’s elaboration on the first step: “the question is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the justice system”. Bond J concluded that “though the Officer’s conduct of the…interview was on dangerous ground, it does not meet the first branch of the test” as “it was not so troublesome that society would take umbrage at the carrying forward of the prosecution” and “such interrogation tactics do not necessarily offend society’s sense of fair play and decency”. Though Bond J established that the accused’s claim in MJZ did not meet the first stage of the test, he still engaged with the balancing of interests required at the third stage. Bond J stated in MJZ that “[t]he allegations are very serious, the alleged victims were vulnerable, and society has a strong interest in having the case decided on its merits. This strong interest outweighs the court’s interest in dissociating itself from the police conduct in this case”. The accused’s application for a stay of proceedings was denied.

Issues of remedy and the balancing of interests

There are two issues in the MJZ decision and with the Babos test itself. Firstly, issues with the Babos test itself, particularly that it offers such a drastic remedy, and how poor state conduct can be saved through the third stage “balancing of interests”. The conduct by the Officer who interviewed MJZ would likely be considered greatly offensive to many and arguably homophobic. Whether intentionally or not, the Officer made multiple allusions to stereotypes about gay men, such as gay men being sexual predators and potentially convoluting “curing” or “fixing” the accused’s trauma from his own sexual assault and the historical practice of “curing” homosexuality. After the Officer’s numerous remarks about “left-wing bullshit”, it is difficult to not interpret the Officer’s statement about “you fucking people” as not being about gay individuals or others that hold similar political beliefs. The Officer’s statement that the accused will “enjoy jail” implies that the accused will enjoy being sexually assaulted in prison, which disturbingly diminishes gay sexual relations and is upsetting as the accused is a victim of sexual abuse. The Officer capitalized on the accused’s vulnerability to gain a confession. Despite the objectively poor conduct of the Officer, which was recognized in some capacity by the trial judge, Bond J, these actions were not enough to pass the first stage of the Babos test, as they are not sufficiently troublesome that society would take issue.

This standard of comparison, the requirement that relevant actions be sufficiently troublesome that society would take issue, raises issues itself as it is judges that are deciding on behalf of society what society may believe would be sufficiently troubling conduct. That the judiciary is adequately in touch with the current societal temperature regarding state conduct is unlikely, though that is the standard we are expected to accept. “Societal notions” is a highly subjective qualifier and though a judge may attempt to assess this objectively it will regardless remain subjective to the judge’s understanding and belief of societal notions. This type of standard is rife throughout many areas of the law, and, though it is difficult to invent a different standard, the issues surrounding it remain.

Secondly, there are issues with the drastic remedy of the Babos test and the third “balancing of interests” stage. The remedy of the Babos test is a stay of proceedings. Because this remedy is so drastic, it is likely to fail in the third “balancing of interests” stage of the test. The third stage states that “the court is required to balance the interests 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’”. The third stage again introduces the interest of “society,” which will ultimately be determined by judges. The third stage deals with polar interests: despite the conduct of the state, granting a remedy that will halt proceedings against an accused is unlikely to be successful. “Society” will likely rather see justice carried, even if it requires excusing poor state conduct. The Babos test therefore favours the state and provides an “out” for poor state conduct because an accused’s claim will likely be excused at stage three of the test if the claim makes it past the first stage. This also offers little in repercussions for poor state conduct, as unless it is particularly egregious, and probably the “main” category of the Babos test, the state conduct will likely be excused.

Babos test unlikely to reform justice system

The conduct of the Officer in MJZ was offensive and, in my opinion, thinly veiled homophobia. The Officer’s conduct may conflict with many individuals’ “societal notions” of appropriate state conduct, but they did not for Bond J. This represents issues with using “societal notions” as a comparator while evaluating conduct. M.J.Z.’s claim was only hypothetically assessed at the third stage of the Babos test, but if Bond J. did evaluate that the Officer’s conduct was offensive to societal notions, it would have failed at the third stage. As the Babos test provides such a drastic remedy, offensive state conduct is unlikely to outweigh the prosecution of the accused. Though Bond J. does mention other remedies that could be available to the accused, it is debateable whether these remedies would lead to lasting change in the judicial system and police practices.