SUPREME
COURT OF CANADA
Between:
Antal
Babos
Appellant
and
Her
Majesty The Queen
Respondent
AND
BETWEEN:
Sergio
Piccirilli
Appellant
and
Her
Majesty The Queen
Respondent
Coram: McLachlin C.J. and LeBel, Abella, Cromwell, Moldaver,
Karakatsanis and Wagner JJ.
|
Reasons for
Judgment:
(paras. 1 to 74)
Dissenting
Reasons:
(paras. 75 to 87)
|
Moldaver J. (McLachlin C.J. and LeBel, Cromwell,
Karakatsanis and Wagner JJ. concurring)
Abella J.
|
R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309
Antal Babos Appellant
v.
Her Majesty The Queen Respondent
‑ and ‑
Sergio Piccirilli Appellant
v.
Her Majesty The Queen Respondent
Indexed as:
R. v. Babos
2014 SCC 16
File No.: 34824.
2013: October 9; 2014: February 21.
Present: McLachlin C.J. and LeBel, Abella, Cromwell, Moldaver,
Karakatsanis and Wagner JJ.
on appeal from the court of appeal for quebec
Criminal
law — Stay of proceedings — Abuse of process — Accused charged with offences
related to firearms and importation, production and trafficking of
methamphetamine — Accused alleging Crown misconduct in obtaining medical
records, police collusion to mislead court, and Crown threats pressuring
accused to plead guilty — Trial judge staying proceedings — Whether stay of
proceedings necessary to protect integrity of justice system.
The
accused were charged with numerous firearms offences, as well as offences
related to the importation, production and trafficking of methamphetamine.
During the course of the trial, the accused brought an application to stay the
proceedings for abuse of process. They took issue with three forms of state
misconduct: attempts by the Crown to intimidate them into foregoing their right
to a trial by threatening them with additional charges should they choose to
plead not guilty, collusion on the part of two police officers to mislead the
court about the seizure of a firearm, and improper means used by the Crown in
obtaining the medical records of one of the accused. The trial judge stayed
the proceedings. The Court of Appeal set aside the stay and ordered a new
trial.
Held
(Abella J. dissenting): The appeals should be dismissed.
Per
McLachlin C.J. and LeBel, Cromwell, Moldaver, Karakatsanis and
Wagner JJ.: A stay of proceedings for an abuse of process will only be
warranted in the clearest of cases. Two types of state conduct may warrant a
stay. The first is conduct that compromises the fairness of an accused’s trial
(the “main” category). The second is conduct that does not threaten trial
fairness but risks undermining the integrity of the judicial process (the
“residual” category). The test for determining whether a stay of proceedings
is warranted is the same for both categories and consists of three
requirements: (1) there must be prejudice to the accused’s right to a
fair trial or to the integrity of the justice system that will be manifested,
perpetuated or aggravated through the conduct of the trial, or by its outcome, (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 must balance the interests in favour of granting a
stay against the interest that society has in having a final decision on the
merits.
When
the residual category is invoked, the first stage of the test is met when it is
established that the state has engaged in conduct that is offensive to societal
notions of fair play and decency, and that proceeding with a trial in the face
of that conduct would be harmful to the integrity of the justice system. At
the second stage of the test, the focus is on whether an alternate remedy short
of a stay of proceedings will adequately dissociate the justice system from the
impugned state conduct going forward. Finally, the court must decide whether
staying the proceedings or having a trial despite the impugned conduct better
protects the integrity of the justice system. This inquiry necessarily demands
balancing. The court must consider such things as the nature and seriousness
of the impugned conduct, whether the conduct is isolated or reflects a systemic
and ongoing problem, the circumstances of the accused, the charges he or she
faces, and the interests of society in having the charges disposed of on the
merits.
In
the instant case, the three forms of state misconduct that are at issue fall
squarely within the residual category. The trial judge erred in his assessment
of the impugned misconduct and in concluding that a stay of proceedings was
warranted. As regards the medical records, the trial judge made a palpable and
overriding error in finding that the Crown’s conduct occasioned prejudice to
the integrity of the justice system. With respect to the police collusion,
apart from its limited extent, the trial judge failed to consider the existence
of another remedy that would have overcome the threat posed to the integrity of
the justice system — namely, excluding the firearm from evidence in respect of
both accused. As for the threats made by the Crown, while they were reprehensible
and should not be repeated, the trial judge failed to consider that they were
made more than a year before the trial began, and that the accused took no
steps for over a year to address the Crown’s conduct. These factors shed light
on how seriously the accused took the threats. The trial judge also failed to
consider that the Crown prosecutor who made the threats was removed from the
case months before the trial started. Moreover, the trial judge failed to
balance the need for a stay against society’s interest in a trial on the
merits. When the impugned misconduct is weighed against society’s interest in
a trial, this is not one of the clearest of cases where the exceptional remedy
of a stay of proceedings is warranted.
Per
Abella J. (dissenting): A stay of proceedings may be imposed when the
state conduct is so profoundly and disproportionately inconsistent with the
public perception of what a fair justice system requires, that proceeding with
a trial means condoning unforgiveable conduct. A Crown who makes threats
intended to bully an accused into foregoing his or her right to a trial, takes
fatal aim at the heart of the public’s confidence in that integrity.
The
unjustifiable nature of the Crown’s conduct in this case was not mitigated by the
length of time between the threats and the trial. Time is not a legal remedy
for a fundamental breach of the Crown’s role and the passage of time does not
attenuate her unpardonable conduct. It was the mere fact that the threats were
made at all that was key, not when they were made.
Moreover,
a further balancing exercise was not required in the circumstances. The trial
judge was unequivocal in concluding that the conduct justified a stay, and
there was none of the uncertainty as to the propriety of a stay that is a
condition precedent to the need for a balancing exercise. When a trial judge
has found that the conduct cannot be condoned because it is such an exceptional
assault on the public’s sense of justice, it is conceptually inconsistent to ask
the court to undermine its own conclusion by re-weighing the half of the scale
that contains the public’s interest in trials on the merits. The public has an
interest not only in trials on the merits, it has an even greater interest in
knowing that when the state is involved in proceedings, particularly those that
can result in an individual’s loss of liberty, it will put fairness above
expedience. Justice is not only about results, it is about how those results
are obtained. When a Crown threatens an accused with additional offences if he
or she does not plead guilty, the public’s interest in the results of a trial
must yield to the transcendent interest in protecting the public’s confidence
in the integrity of the justice system.
Cases Cited
By Moldaver J.
Referred
to: R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297; R. v.
O’Connor, [1995] 4 S.C.R. 411; Canada (Minister of Citizenship and
Immigration) v. Tobiass, [1997] 3 S.C.R. 391; R. v.
Keyowski, [1988] 1 S.C.R. 657; R. v. Waugh
(1985), 68 N.S.R. (2d) 247; R. v. Bellusci, 2012 SCC 44, [2012] 2 S.C.R.
509; R. v. Zarinchang, 2010 ONCA 286, 99 O.R. (3d) 721; R. v. Conway,
[1989] 1 S.C.R. 1659; R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651; Boucher
v. The Queen, [1955] S.C.R. 16; United States of America v. Cobb,
2001 SCC 19, [2001] 1 S.C.R. 587.
By Abella J. (dissenting)
R.
v. O’Connor, [1995] 4 S.C.R. 411; Canada (Minister of Citizenship and
Immigration) v. Tobiass, [1997] 3 S.C.R. 391; R. v.
Conway, [1989] 1 S.C.R. 1659; United States of America v. Shulman,
2001 SCC 21, [2001] 1 S.C.R. 616; R. v. Regan, 2002 SCC
12, [2002] 1 S.C.R. 297; R. v. Bellusci, 2012 SCC 44,
[2012] 2 S.C.R. 509.
Statutes and Regulations Cited
Canadian
Charter of Rights and Freedoms, ss. 8 , 11 (b), 24 .
Criminal Code, R.S.C. 1985, c. C‑46,
ss. 574(1) (b), 577 .
APPEALS from a judgment of the Quebec Court of Appeal (Duval Hesler C.J.
and Chamberland and Doyon JJ.A.), 2012 QCCA 471, [2012] J.Q. no 2107
(QL), 2012 CarswellQue 1987, SOQUIJ AZ‑50839397, setting aside the stay
of proceedings entered by Garneau J. and ordering a new trial, 2008 QCCQ
11373, [2008] J.Q. no 12838 (QL), 2008 CarswellQue 12200,
SOQUIJ AZ‑50525272. Appeals dismissed, Abella J. dissenting.
Franco
Schiro and Xuan Trung Nguyen, for the
appellant Antal Babos.
Guylaine
Tardif, Jean‑Pierre Pilon and Maxime Wilkins, for the appellant Sergio Piccirilli.
Gilles
Villeneuve and François Lacasse, for the
respondent.
The judgment of McLachlin
C.J. and LeBel, Cromwell, Moldaver, Karakatsanis and Wagner JJ. was delivered
by
Moldaver J. —
I.
Introduction
[1]
This appeal provides the Court with an
opportunity to revisit the law of abuse of process as it relates to state
conduct that impinges on the integrity of the justice system but does not affect
trial fairness — sometimes referred to as the “residual category” of cases for
which a judicial stay of proceedings may be ordered. In particular, we are
tasked with clarifying the approach to be followed when determining whether a
stay of proceedings should be ordered where such conduct is uncovered.
[2]
As we shall see, the appellants, Antal Babos and
Sergio Piccirilli, complain about three forms of state misconduct:
(1)
Attempts by the original provincial Crown
Attorney to intimidate them into foregoing their right to a trial by
threatening them with additional charges should they choose to plead not
guilty;
(2)
Collusion on the part of two police officers to
mislead the court about the seizure of a firearm from Mr. Babos’s car; and
(3)
Improper means used by a federal Crown Attorney
in obtaining Mr. Piccirilli’s medical records from the detention centre where
he was being detained pending trial.
[3]
Notably, the appellants do not argue that they
cannot receive a fair trial as a result of the alleged incidents of misconduct
— they accept that they can. They submit instead that this is one of the
clearest of cases in which a stay of proceedings is necessary to preserve and
protect the integrity of the justice system. Anything short of that would
amount to judicial condonation of egregious misconduct and erode the public’s
confidence in the administration of justice.
[4]
And that, the appellants say, is the basis upon
which the trial judge ordered a stay of proceedings in their case. In doing
so, he made no error. His decision was discretionary and entitled to
deference, and the Quebec Court of Appeal should not have interfered. Hence,
the appellants seek to have the order of the trial judge reinstated.
[5]
For the reasons that follow, I would not give
effect to the appellants’ submissions. In my respectful view, the trial judge
committed errors in assessing all three forms of state misconduct. As regards
Mr. Piccirilli’s medical records, he made a palpable and overriding error in
assessing the Crown’s conduct. With respect to the police collusion, apart
from its limited extent, the trial judge failed to consider that excluding the
firearm found in Mr. Babos’s trunk would have overcome whatever threat it posed
to the integrity of the justice system. As for the threats by the provincial
Crown, while they were reprehensible and should not be repeated, the trial
judge overstated their seriousness and failed to balance the need for a stay
against society’s interest in a trial on the merits.
[6]
When the impugned misconduct is properly
considered and the correct legal framework is applied, a stay is unwarranted.
Accordingly, I would dismiss the appeals.
II.
Background Facts
[7]
On February 17, 2006, Mr. Babos was pulled over
by Constables Guy Brière and Marc Sénéchal. The officers believed that Mr.
Babos was transporting guns. Upon searching the trunk of his car, they found a
semi-automatic firearm. Mr. Babos was arrested.
[8]
On June 21, 2006, Mr. Piccirilli was arrested.
Both he and Mr. Babos were ultimately charged with numerous firearms related
offences, as well as offences related to the importation, production and
trafficking of methamphetamine.
[9]
The instances of threatening conduct by Crown
counsel are said to have occurred between June 2006 and February 2007.
Specifically, the provincial prosecutor assigned to the case, Ms. Valérie
Tremblay, was accused of threatening Mr. Piccirilli on three separate occasions
with additional charges if he did not plead guilty.
[10]
According to Mr. Patrice Duliot, Mr.
Piccirilli’s former lawyer, Ms. Tremblay told him, in the presence of Mr.
Piccirilli, that [translation] “if
your client doesn’t settle, he’s gonna be hit by a train” (A.R., vol. V, at p.
5). Mr. Piccirilli claimed that on another occasion, either in June or
September 2006, Ms. Tremblay threatened him personally in the courtroom.
According to Mr. Piccirilli, she said “if you proceed, we’ll bring other
charges against you” and that she would “use section 577 ” and go “straight to
trial” (pp. 65 and 69).
Another of Mr. Piccirilli’s counsel, Ms. Guylaine Tardif, deposed in an
affidavit that in November 2006 or February 2007, Ms. Tremblay told her that
Mr. Piccirilli would be charged with money laundering and organized crime
offences if he did not plead guilty. Ms. Tremblay asked Ms. Tardif to relay
this message to her client. Although Mr. Babos was not threatened directly, no
issue is taken with the fact that the threats conveyed to Mr. Piccirilli would
have come to his attention.
[11]
The appellants’ trial began in April 2008.
Notably, by February 2008, Ms. Tremblay was no longer on the file. She had
been removed for health reasons and replaced by a federal prosecutor, Ms.
Kovacevich, when the charges against the appellants were joined in a single
indictment. It was at this juncture that the appellants were charged with four
additional offences relating to organized crime, firearms and drug
trafficking. The additional charges stemmed from evidence led at the
appellants’ preliminary hearings. By this point, neither the appellants nor
their counsel had mentioned the alleged threats made by Ms. Tremblay. Indeed,
the threats did not surface until they were brought to the attention of the
trial judge some six months into the trial and at least eighteen months after
they were made.
[12]
At the outset of the trial, Mr. Babos alleged
that the police had illegally searched the trunk of his car and he sought to
have the firearm they seized excluded from evidence under s. 24(2) of the
Canadian Charter of Rights and Freedoms . On the s. 24(2) application, a
key factual issue was whether Mr. Babos consented to the search and opened the
trunk himself. Constables Brière and Sénéchal testified at the hearing. Cst.
Brière testified that it was Mr. Babos who opened the trunk of the car. This
testimony differed from the version of events he had given at the preliminary
inquiry.
When defence counsel confronted Cst. Brière with the change, Cst. Brière explained
that he had spoken to Cst. Sénéchal while they were waiting to testify, and
that Cst. Sénéchal had [translation]
“convinced” him that the new version of events was the truth.
[13]
The trial judge concluded that the trunk had
been illegally searched and that Mr. Babos’s rights under s. 8 of the Charter
had been violated. He also found that the officers had colluded for the
purpose of misleading the court. The firearm found in the trunk was excluded.
[14]
In June 2008, during the continuation of the
trial, the Crown attempted to adduce the same firearm against Mr. Piccirilli.
Mr. Piccirilli objected. The Crown took the position that Mr. Piccirilli had
no standing to allege a violation of his s. 8 rights because the car
from which the firearm was seized belonged to Mr. Babos. Again Cst. Brière
testified, and again his evidence was somewhat different than before. The trial judge ruled
in favour of the Crown on the issue of standing, but did so provisionally; he
reserved to Mr. Piccirilli the right to present another motion [translation] “in due course if
necessary” (A.R., vol. III, at p. 124).
[15]
On October 3, 2008, with the trial still
ongoing, Mr. Babos brought an application to stay the charges for unreasonable
delay under s. 11 (b) of the Charter . That same week, on
October 7, 2008, Mr. Piccirilli had a heart attack and the trial was
adjourned. Mr. Piccirilli applied for bail, alleging that the detention centre
in which he was being held was unable to adequately care for his health. As
part of his application, Mr. Piccirilli undertook to provide the court with his
medical report and list of medications.
[16]
Ms. Kovacevich contacted the detention centre
directly and spoke to Mr. Piccirilli’s doctor. Ms. Kovacevich asked him to
provide an affidavit explaining whether medical staff at the detention centre
had followed up on Mr. Piccirilli’s health since his heart attack and whether
Mr. Piccirilli had been receiving his medication since his hospitalization. On
October 23, 2008, Mr. Piccirilli’s doctor provided the Crown with medical
documents pertaining to Mr. Piccirilli. Ms. Kovacevich immediately disclosed
these documents to Mr. Piccirilli’s counsel, but she initially refused to
divulge their source. A few days later, in an affidavit dated October 30, 2008,
she explained that the medical records had been sent from the detention centre
by Mr. Piccirilli’s doctor.
[17]
When Mr. Babos’s s. 11 (b) application
resumed in late October, Mr. Babos’s former counsel (Mr. Duliot) testified. It
was in the course of his testimony that Ms. Tremblay’s threatening conduct came
to light for the first time. After hearing evidence regarding Ms. Tremblay’s
conduct, the trial judge asked Ms. Kovacevich if she wanted to call any
witnesses or have Ms. Tremblay prepare an affidavit. Ms. Kovacevich declined.
She explained that the only response she could make was that the state of Ms.
Tremblay’s health did not allow her to testify, that the alleged threats were
not admitted, and that no postponement was requested to have her testify.
[18]
Both appellants brought an application to stay
the proceedings for abuse of process shortly thereafter. On November 14, 2008,
the trial judge granted the application and the charges against the appellants
were stayed.
III.
Judgments Below
A.
The Quebec Court, 2008 QCCQ 11373 (CanLII)
[19]
Garneau J. stayed the proceedings against both
appellants. He based his decision to do so on three instances of state
misconduct: (1) Ms. Tremblay’s threats to the appellants that they would face
additional charges if they did not plead guilty; (2) collusion on the part of
Constables Brière and Sénéchal to mislead the court; and (3) Ms. Kovacevich’s
improper conduct in securing Mr. Piccirilli’s medical records from the
detention centre without first obtaining his consent.
[20]
Commencing with Ms. Tremblay’s threatening
conduct, the trial judge described the threats as [translation] “unacceptable, intolerable, unjustifiable,
illegal and, above all, undemocratic” (para. 59). The trial judge was also
critical of the Crown attorney’s office for failing to take any steps to
address Ms. Tremblay’s conduct, noting that “nothing, absolutely nothing had
been done by the representative of the Attorney General to remedy or even try
to remedy the situation” (para. 66). Instead, the Crown had “remained
entrenched in its position” (para. 66). The trial judge found that the threats
had tarnished the reputation of the judicial system and impacted the fairness
of the accused’s trial. Allowing the trial to continue in the face of these
threats would be “shocking and outrageous” (para. 78). According to the trial
judge, Ms. Tremblay’s misconduct was sufficient in and of itself to warrant a
stay of proceedings.
[21]
With respect to collusion, the trial judge made
a finding that Constables Brière and Sénéchal colluded in order to mislead the
court. This finding was based on Cst. Brière’s admission that he had spoken to
Cst. Sénéchal before testifying, and that Cst. Sénéchal had [translation] “convinced” him that Mr.
Babos had opened the trunk of the car (para. 12). The trial judge also found
that the Crown’s later attempt to lead the firearm seized from the trunk
against Mr. Piccirilli perpetuated the officers’ collusion.
[22]
Finally, regarding Mr. Piccirilli’s medical
records, the trial judge concluded that the Crown should have taken the [translation] “necessary precautions” to
ensure that the confidentiality of Mr. Piccirilli’s records was respected
(para. 53). The trial judge also found that there had been a “lack of
transparency” because the Crown had “always refused” to disclose the source of
the information once she had obtained it (para. 56).
[23]
In the face of these three instances of
misconduct, but particularly Ms. Tremblay’s threats, the trial judge stayed the
proceedings against both appellants.
B.
The Quebec Court of Appeal, 2012 QCCA 471
(CanLII)
[24]
Doyon J.A., writing for a unanimous court, set
aside the stay of proceedings and ordered a new trial. A stay of proceedings
was only to be granted in [translation] “extreme
cases” where no other remedy was possible (para. 56). This was not such a
case.
[25]
Acknowledging that Ms. Tremblay’s threats were [translation] “unacceptable” and
“outrageous”, Doyon J.A. noted that the impact of the threats was lessened by
the fact that they were made over a year before the trial began and that Ms.
Tremblay had long since been replaced as the prosecutor in charge of the case
(paras. 59 and 73).
[26]
As for the trial judge’s finding that Constables
Brière and Sénéchal colluded to mislead the court, Doyon J.A. considered this
finding to be a palpable and overriding error. Cst. Brière explained why his
testimony had changed. The trial judge’s determination that the officers’
conduct amounted to collusion lacked an evidentiary foundation.
[27]
With respect to Ms. Kovacevich’s conduct in
securing Mr. Piccirilli’s medical records, Doyon J.A. concluded that there was
no misconduct and that the trial judge committed another palpable and
overriding error in finding otherwise. Mr. Piccirilli put his medical
condition in issue and at least implicitly waived his right to invoke
confidentiality in the information. The Crown was free to seek evidence to
contradict Mr. Piccirilli’s assertions for purposes of resisting his
application for interim release.
[28]
Having reassessed the facts, Doyon J.A. observed
that Ms. Tremblay’s threats remained the sole cause of concern. In assessing
whether those threats warranted a stay, he noted that they were uttered months
before trial, by a Crown who was replaced before trial, and about whom the
appellants did not complain until after their trial had been in progress for at
least six months. In his view, this did not amount to an extreme case that
required a stay of proceedings.
IV.
Issues
[29]
The narrow issue on appeal is whether the trial
judge erred in granting a stay of proceedings. More broadly, we are tasked
with clarifying the proper analysis to be undertaken when a stay of proceedings
is sought for prior state conduct that is said to impinge on the integrity of
the justice system.
V.
Analysis
A.
Abuse of Process and Stays of Proceedings
[30]
A stay of proceedings is the most drastic remedy
a criminal court can order (R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R.
297, at para. 53). It permanently halts the prosecution of an accused.
In doing so, the truth-seeking function of the trial is frustrated and the
public is deprived of the opportunity to see justice done on the merits. In
many cases, alleged victims of crime are deprived of their day in court.
[31]
Nonetheless, this Court has recognized that
there are rare occasions —the “clearest of cases” — when a stay of proceedings
for an abuse of process will be warranted (R. v. O’Connor, [1995] 4
S.C.R. 411, at para. 68). These cases generally fall into two categories: (1)
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) (O’Connor, at para. 73). The impugned conduct in this case
does not implicate the main category. Rather, it falls squarely within the
latter category.
[32]
The test used to determine whether a stay of
proceedings is warranted is the same for both categories and consists of three
requirements:
(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).
[33]
The test is the same for both categories because
concerns regarding trial fairness and the integrity of the justice system are
often linked and regularly arise in the same case. Having one test for both
categories creates a coherent framework that avoids “schizophrenia” in the law
(O’Connor, at para. 71). But while the framework is the same for both
categories, the test may — and often will — play out differently depending on
whether the “main” or “residual” category is invoked.
[34]
Commencing with the first stage of the test,
when the main category is invoked, the question is whether the accused’s right
to a fair trial has been prejudiced and whether that prejudice will be carried
forward through the conduct of the trial; in other words, the concern is
whether there is ongoing unfairness to the accused.
[35]
By contrast, when the residual category is
invoked, 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 integrity of
the justice system. To put it in simpler terms, there are limits on the type
of conduct society will tolerate in the prosecution of offences. At times,
state conduct will be so troublesome that having a trial — even a fair one —
will leave the impression that the justice system condones conduct that offends
society’s sense of fair play and decency. This harms the integrity of the
justice system. In these kinds of cases, the first stage of the test is met.
[36]
In Canada (Minister of Citizenship and
Immigration) v. Tobiass, [1997] 3 S.C.R. 391, this Court described the
residual category in the following way:
For a stay of proceedings to be
appropriate in a case falling into the residual category, it must appear that
the state misconduct is likely to continue in the future or that the carrying
forward of the prosecution will offend society’s sense of justice. Ordinarily,
the latter condition will not be met unless the former is as well — society
will not take umbrage at the carrying forward of a prosecution unless it is likely
that some form of misconduct will continue. There may be exceptional cases in
which the past misconduct is so egregious that the mere fact of going forward
in the light of it will be offensive. But such cases should be relatively very
rare. [para. 91]
[37]
Two points of interest arise from this
description. First, while it is generally true that the residual category will
be invoked as a result of state misconduct, this will not always be so.
Circumstances may arise where the integrity of the justice system is implicated
in the absence of misconduct. Repeatedly prosecuting an accused for the same
offence after successive juries have been unable to reach a verdict stands as
an example (see, e.g., R. v. Keyowski, [1988] 1 S.C.R. 657), as does
using the criminal courts to collect a civil debt (see, e.g., R. v. Waugh
(1985), 68 N.S.R. (2d) 247 (S.C., App. Div.)).
[38]
Second, in a residual category case, regardless
of the type of conduct complained of, the question to be answered at the first
stage of the test is the same: whether proceeding in light of the impugned
conduct would do further harm to the integrity of the justice system. While I
do not question the distinction between ongoing and past misconduct, it does
not completely resolve the question of whether carrying on with a trial
occasions further harm to the justice system. The court must still consider
whether proceeding would lend judicial condonation to the impugned conduct.
[39]
At the second stage of the test, the question is
whether any other remedy short of a stay is capable of redressing the
prejudice. Different remedies may apply depending on whether the prejudice
relates to the accused’s right to a fair trial (the main category) or whether
it relates to the integrity of the justice system (the residual category).
Where the concern is trial fairness, the focus is on restoring an accused’s
right to a fair trial. Here, procedural remedies, such as ordering a new
trial, are more likely to address the prejudice of ongoing unfairness. Where
the residual category is invoked, however, and the prejudice complained of is
prejudice to the integrity of the justice system, remedies must be directed
towards that harm. It must be remembered that for those cases which fall
solely within the residual category, the goal is not to provide redress
to an accused for a wrong that has been done to him or her in the past.
Instead, the focus is on whether an alternate remedy short of a stay of
proceedings will adequately dissociate the justice system from the
impugned state conduct going forward.
[40]
Finally, the balancing of interests that occurs
at the third stage of the test takes on added significance when the residual
category is invoked. This Court has stated that the balancing need only be
undertaken where there is still uncertainty as to whether a stay is appropriate
after the first two parts of the test have been completed (Tobiass, at
para. 92). When the main category is invoked, it will often be clear by the
time the balancing stage has been reached that trial fairness has not been
prejudiced or, if it has, that another remedy short of a stay is available to
address the concern. In those cases, no balancing is required. In rare cases,
it will be evident that state conduct has permanently prevented a fair trial
from taking place. In these “clearest of cases”, the third and final balancing
step will often add little to the inquiry, as society has no interest in unfair
trials.
[41]
However, when the residual category is invoked,
the balancing stage takes on added importance. Where prejudice to the
integrity of the justice system is alleged, the court is asked to decide which
of two options better protects the integrity of the system: staying the
proceedings, or having a trial despite the impugned conduct. This inquiry
necessarily demands balancing. The court must consider such things as the
nature and seriousness of the impugned conduct, whether the conduct is isolated
or reflects a systemic and ongoing problem, the circumstances of the accused,
the charges he or she faces, and the interests of society in having the charges
disposed of on the merits.
Clearly, the more egregious the state conduct, the greater the need for the
court to dissociate itself from it. When the conduct in question shocks the
community’s conscience and/or offends its sense of fair play and decency, it
becomes less likely that society’s interest in a full trial on the merits will
prevail in the balancing process. But in residual category cases, balance must
always be considered.
[42]
This Court’s recent decision in R. v.
Bellusci, 2012 SCC 44, [2012] 2 S.C.R. 509, attests to the need for
balancing when the conduct in question falls solely within the residual
category. In Bellusci, the accused was assaulted in the back of a van
by a prison guard while he was shackled and handcuffed. The accused was
charged with assaulting the guard and intimidating a justice system
participant. Fish J., writing for a unanimous Court, upheld the trial judge’s
decision to issue a stay of proceedings for state misconduct falling in the
residual category. In doing so, he noted that the trial judge had
appreciated the need to balance
the competing interests at play in contemplating a stay of proceedings. He
expressly took into account the difficult position of prison guards, the
importance to the justice system of ensuring their protection, the seriousness
of the charges against the accused, the integrity of the justice system, and
the nature and gravity of the violation of Mr. Bellusci’s rights. Only then did
he conclude that a stay was warranted. [Emphasis added; para. 29.]
[43]
The Ontario Court of Appeal has also recently
emphasized the importance of the balancing stage when the residual category is
in issue:
In some sense, an accused who is
granted a stay under the residual category realizes a windfall. Thus, it is
important to consider if the price of the stay of a charge against a particular
accused is worth the gain. Does the advantage of
staying the charges against this accused outweigh the interest in having the
case decided on the merits? In answering that question, a court will almost
inevitably have to engage in the type of balancing exercise that is referred to
in the third criterion. [Emphasis added.]
(R. v. Zarinchang,
2010 ONCA 286, 99 O.R. (3d) 721, at para. 60)
[44]
Undoubtedly, the balancing of societal interests
that must take place and the “clearest of cases” threshold presents an accused
who seeks a stay under the residual category with an onerous burden. Indeed,
in the residual category, cases warranting a stay of proceedings will be
“exceptional” and “very rare” (Tobiass, at para. 91). But this is as it
should be. It is only where the “affront to fair play and decency is
disproportionate to the societal interest in the effective prosecution of
criminal cases” that a stay of proceedings will be warranted (R. v. Conway,
[1989] 1 S.C.R. 1659, at p. 1667).
[45]
To recapitulate, while the framework is the same
for both categories, the test may — and often will — play out differently
depending on whether the “main” or “residual” category is invoked.
[46]
The following hypothetical may serve as a useful
illustration. Take a case where it is discovered, after trial, that the police
have tampered with the jury in order to secure the conviction of an accused. Manifestly,
the police conduct would impinge on the accused’s right to a fair trial — but
it would also impinge on the integrity of the justice system.
[47]
Ordering a new trial would probably redress the
unfairness of the original trial. But the inquiry would not end there. The
court would also have to decide whether ordering a new trial, or some other
remedy, would suffice to dissociate it from the prejudice occasioned to the
integrity of the justice system by the police misconduct. If no remedy would suffice,
the court would have to engage in the balancing process and determine whether
the integrity of the justice system would be better served by a stay of
proceedings or a full trial on the merits. Given the seriousness of the
misconduct — jury tampering strikes at the very heart of the criminal justice
system — the residual category might well necessitate a stay of proceedings to
redress the threat to the integrity of the justice system, even though the
unfairness that marred the first trial could be cured by a second trial.
B.
Whether a Stay of Proceedings Was Warranted in
the Instant Case
[48]
The standard of review for a remedy ordered
under s. 24(1) of the Charter is well established. Appellate
intervention is warranted only where a trial judge misdirects him or herself in
law, commits a reviewable error of fact, or renders a decision that is “so
clearly wrong as to amount to an injustice” (Bellusci, at para. 19; Regan,
at para. 117; Tobiass, at para. 87; R. v. Bjelland, 2009
SCC 38, [2009] 2 S.C.R. 651, at paras. 15 and 51).
[49]
In the instant case, the appellants acknowledge
that trial fairness is not in issue. They accept that the trial judge viewed
the misconduct as coming within the residual category. Approaching the matter
from that perspective, I am respectfully of the view that the trial judge erred
in assessing all three forms of alleged state misconduct.
(1)
The Medical Records
[50]
In order for the Crown’s conduct in securing Mr.
Piccirilli’s medical records to factor into a decision to stay proceedings, it
must pass the first stage of the test. That is, the appellants must show that
Ms. Kovacevich’s conduct was prejudicial to the integrity of the justice
system. The trial judge appears to have found that this requirement was met
when, after considering her conduct, he held that [translation] “[t]his conduct will be taken into
consideration in reviewing the abuse of process motion” (para. 57).
[51]
The trial judge committed a palpable and
overriding error in reaching the conclusion that this conduct impinged on the
integrity of the justice system. In the first place, he erred in concluding
that the Crown’s conduct was marked by a lack of transparency because the Crown
had [translation] “always refused
to disclose the source of the information” (para. 56). In fact, the Crown
disclosed the source of the information within a matter of days. In addition,
the trial judge failed to consider that Mr. Piccirilli had put his health in
issue in his application for interim release and had undertaken to provide the
court with his medical records. The trial judge also failed to consider that
Ms. Kovacevich had asked the medical staff at the jail to provide an affidavit
explaining the medical care Mr. Piccirilli had received since his heart
attack. It appears that Mr. Piccirilli’s doctor took it upon himself to
forward the appellant’s medical records to the Crown.
[52]
In my view, when the Crown’s conduct is
considered free of the trial judge’s errors, it is clear that it occasioned no
prejudice to the integrity of the justice system. Mr. Piccirilli had put the
state of his health in issue. Ms. Kovacevich sought an affidavit from the jail
Mr. Piccirilli was being held in. When she received more than she asked for —
Mr. Piccirilli’s confidential medical records — she immediately disclosed the
information to Mr. Piccirilli’s counsel. Within a matter of days, she also
disclosed the source of the information.
Accordingly, the appellants’ argument fails at the first stage of the test.
(2)
The Police Collusion
[53]
The Court of Appeal disagreed with the trial
judge’s finding that Constables Brière and Sénéchal colluded to mislead
the court. I too have serious reservations with the trial judge’s finding.
Indeed, had I been the trial judge, I doubt that I would have reached the same
conclusion. However, having seen the witnesses, the trial judge was in a
better position to assess the matter. Accordingly, his finding is entitled to
deference.
[54]
That said, at the first stage of the test, the
officers’ conduct must be looked at in context. Cst. Brière changed his
testimony on a central issue: whether he or Mr. Babos opened the trunk of the
car. He did so, however, after having testified at the preliminary inquiry.
As an officer, he surely knew that this change would be the subject of questioning
by defence counsel. Changes in an officer’s testimony are routinely exposed in
cross-examination. And when Cst. Brière was predictably questioned about why
his story had changed, he immediately explained that he had spoken with Cst.
Sénéchal and had been [translation] “convinced”
of the true version of events. There was no attempt by the officers to cover
up their discussions or to hide anything from the court. To the extent this
amounts to collusion, it does so in the most technical sense. Whatever threat
it poses to the integrity of the justice system must surely be slight.
[55]
However, given the trial judge’s finding, it is
necessary to proceed to the second stage of the test and ask whether there is
another remedy, short of a stay, capable of redressing the prejudice to the
integrity of the judicial system occasioned by the collusion.
[56]
Two concerns to the integrity of the justice
system arise out of the trial judge’s finding of collusion: (1) the impropriety
of police collusion designed to mislead the court, and (2) the Crown’s attempt
to introduce the firearm against Mr. Piccirilli in the wake of the trial
judge’s finding of collusion. Manifestly, both are improper. But there was
another remedy before the trial judge that would have addressed both, namely:
refusing to admit the firearm against Mr. Piccirilli even though he had no
standing under s. 8 of the Charter to challenge its admissibility. The
trial judge erred in failing to consider that alternative.
[57]
Excluding the firearm against Mr. Piccirilli
would serve to dissociate the court from the officers’ collusion and the
Crown’s misguided attempt, in the face of that finding, to introduce the
firearm against Mr. Piccirilli. Both forms of misconduct were intended to
achieve the same end — admission of the firearm into evidence. Excluding the
firearm against Mr. Piccirilli — even though it was likely admissible against
him — purges the problematic evidence from the trial, thereby dissociating the
court from the misconduct in question. By doing so, it cannot be said that the
misconduct has a lingering effect on the integrity of the justice system. In
my view, this remedy fully addresses any prejudice occasioned to the justice
system by the impugned conduct. Hence, there is no need to go further in the
analysis.
(3)
The Crown’s Threatening Conduct
[58]
In the end, I view this case as turning on the
Crown’s threatening conduct.
[59]
The distinction between the Crown’s conduct in
this case and legitimate plea bargaining practices should be made clear at the
outset. It is perfectly proper for the Crown to indicate that it will drop
certain charges, grounded in the evidence, if the accused pleads guilty. It is
also proper for a Crown to advise counsel that if evidence arises at the
preliminary inquiry that would support additional charges, they may be added to
the indictment under s. 574(1) (b) of the Criminal Code . Where discussions of
this sort occur with counsel after substantial disclosure has been provided,
the accused and his or her lawyer are able to make an informed decision as to
how to proceed and nothing improper has occurred.
[60]
The Crown’s conduct in this case was of a
different nature. The impugned comments were made early on in the proceedings,
before the appellants and their counsel had sufficient disclosure to make an
informed decision as to how they wished to proceed. Moreover, in at least one
instance, the comments occurred in the presence of one of the appellants, Mr.
Piccirilli. And the Crown’s language was nothing short of threatening. Mr.
Piccirilli was told, for example, that if he did not settle, he was going to be
[translation] “hit by a train”.
Put simply, the Crown’s threats were intended to pressure the appellants into
foregoing their right to a trial.
[61]
Without question, the bullying tactic to which
Ms. Tremblay resorted was reprehensible and unworthy of the dignity of her
office. It should not be repeated by her or any other Crown. In her capacity
as a Crown, Ms. Tremblay’s role was that of a quasi-judicial officer. Her
function was to be “assistant to the Court in the furtherance of justice, and
not to act as counsel for any particular person or party” (Boucher v. The
Queen, [1955] S.C.R. 16, at p. 25). In threatening to charge Mr.
Piccirilli with more offences if he did not plead guilty, Ms. Tremblay betrayed
her role as a Crown. Manifestly it is the type of conduct the court should
dissociate itself from.
[62]
However, the threats must be considered in their
context. With respect, the trial judge did not do so. Here, there were
several factors which the trial judge failed to consider. With respect, he
erred in this regard.
[63]
The threats were made more than a year before
the trial began. The 18-month long silence of the appellants and their counsel
sheds some light on how seriously they took the threats. Had they been taken
seriously, one might have expected counsel to respond immediately. Surely the
proper course of action was not to sit back for over a year before applying,
mid-trial, for a stay of proceedings. Instead, counsel should have confronted
Ms. Tremblay and, failing an adequate response by her, brought the matter
immediately to the attention of a senior Crown or a judge. That way, Ms.
Tremblay could have been removed from the file during the early stages of the
proceedings. Be that as it may, as it turned out, she was removed from the
case months before the trial started — and it was not until six months after
the trial was underway that the threats first came to light.
[64]
As indicated, context is essential in
considering the seriousness of the threatening conduct. By the time the
misconduct came to light, Ms. Tremblay had long since been removed
from the case and no longer played any part in it. The trial judge
acknowledged this fact but did not consider it to be an attenuating factor
because the Crown’s office had taken no steps [translation]
“to remedy or even try to remedy the situation” once the threats were
revealed and had instead “remained entrenched in its position” (para. 66).
With respect, this observation does not accurately reflect the facts. At the
point when the threats first came to light, they were unproven and Ms.
Tremblay’s health did not allow her to testify.
The Crown’s office did not condone Ms. Tremblay’s actions, but simply left it to
the appellants to prove the threats. Surely the Crown’s office cannot be
faulted for taking that approach, especially in the absence of any evidence
suggesting that Ms. Tremblay’s conduct was systemic.
[65]
Moreover, the trial judge did not consider the
passage of time between when the threats were made and when they were first
brought to light. He made no mention of this in his reasons. In this regard,
while I agree in general with Justice Abella that the passage of time itself
cannot “retroactively cure intolerable state conduct” (para. 82), its
significance here is that it serves as a yardstick against which to measure
just how serious Ms. Tremblay’s conduct was perceived by the defence. The fact
that defence counsel took no steps for over a year to raise concerns — and
then, almost by accident in the context of a s. 11 (b) delay motion —
sheds important light on this subject. The trial judge erred in failing to
take this into account.
[66]
Manifestly, Ms. Tremblay’s misconduct was
serious enough to warrant proceeding to the second stage of the test. That
said, in my respectful view, when the mitigating factors which the trial judge
failed to consider are taken into account, the trial judge’s conclusion that
the threats amounted to [translation] “an
abuse of the worst kind” is simply not borne out (para. 78).
[67]
Turning to the second stage of the test, as no
argument was made that there was an alternate remedy capable of redressing the
particular harm caused to the integrity of the justice system by the threats, I
need not finally decide whether such a remedy was available. Instead, I turn
to the third stage of the test, namely, whether Ms. Tremblay’s conduct was
sufficiently egregious to warrant a stay of proceedings.
[68]
The answer lies in the balancing process — an
exercise which the trial judge did not undertake. The question at this stage
is whether the integrity of the justice system is better preserved by staying
the proceedings, or proceeding to a trial in the face of the Crown’s
threatening conduct.
[69]
This balancing requires weighing the seriousness
of the misconduct against the societal interest in having a trial. At this
stage, the very serious nature of the charges facing the appellants — 22
charges concerning firearms, illegal drugs, and organized crime — looms large.
Society has a profound interest in seeing justice done by having the guilt or
innocence of the appellants determined through a full trial on the merits.
When the impugned misconduct — threats uttered more than a year before trial by
a Crown no longer on the case — is weighed against society’s interest in a
trial, I am satisfied that this is not one of the “clearest of cases” where the
exceptional remedy of a stay of proceedings is warranted.
[70]
The appellants contend that this case is analogous
to United States of America v. Cobb, 2001 SCC 19, [2001] 1 S.C.R. 587, a
case in which this Court upheld a stay of proceedings. In Cobb, the
accused were facing extradition proceedings from Canada to the United States.
They were granted a stay after the American prosecutor on the file hinted to
the media that uncooperative fugitives would be subjected to rape in prison,
and the judge presiding over their trial in the United States commented that
uncooperative defendants would get the maximum jail sentence legally
available.
[71]
This case is a far cry from Cobb. In Cobb,
the American prosecutor had threatened the accused with sexual violence. Here,
the Crown threatened to charge the accused with additional offences if they did
not plead guilty. While that was improper, the threats related to something
she could have done legally under s. 574(1) (b) of the Criminal Code .
Moreover, the decision to stay the proceedings in Cobb was motivated in
large part by the fact that the prosecutor who made the threats remained in
charge of the prosecutions. This Court noted that extraditing the accused
would return them to an “ominous climate” in which the American prosecutor and
judge would play a “large, if not decisive role” in determining their “ultimate
fate” (Cobb, at para. 43). Here, Ms. Tremblay was off the case long
before trial. In my view, Cobb provides little or no assistance to the
appellants.
VI.
Conclusion
[72]
In deciding that a stay of proceedings is
unwarranted in this case, I have assessed the three forms of alleged misconduct
individually. The Crown’s conduct in securing Mr. Piccirilli’s medical records
occasioned no prejudice to the integrity of the justice system. The harm
caused by the finding of police collusion was curable through an alternate
remedy: excluding the firearm from evidence against both appellants. And the
Crown’s threatening conduct, while reprehensible, did not approximate the type
of shocking conduct needed to justify a stay.
[73]
This case lent itself to an individualistic approach.
The three alleged instances of misconduct were separate and distinct, committed
at different times by different players. There was no link between them. And
in only one instance — the Crown’s threatening behaviour — was it necessary to
consider the third stage of the test and balance the Crown’s misconduct against
society’s interest in a trial on the merits. That said, I should not be taken
as suggesting that an individualistic approach should always be followed.
Indeed, a judge who is required to balance several instances of misconduct
against the societal interest in a trial will almost certainly wish to consider
the conduct cumulatively and in its full context. As well, there may be cases
where the nature and number of incidents, though individually unworthy of a
stay, will require one when considered together. But this is not such a case.
[74]
For these reasons, I would dismiss the appeals.
The following are the reasons
delivered by
[75]
Abella J. (dissenting) — A stay should only be imposed
in the clearest of cases, as Justice Moldaver points out, since it has the
effect of precluding proceedings which determine the merits of a case,
something to which the public — and the parties — are entitled. But the public
is also entitled to have confidence in the integrity of the justice system. A
Crown who makes threats intended to bully an accused into foregoing his or her
right to a trial, takes fatal aim at the heart of the public’s confidence in
that integrity.
Analysis
[76]
A stay may be justified for an abuse of process
under the residual category when the state’s conduct “contravenes fundamental
notions of justice and thus undermines the integrity of the judicial process” (R.
v. O’Connor, [1995] 4 S.C.R. 411, at para. 73). A stay may be
justified, in exceptional circumstances, when the conduct “is so egregious that
the mere fact of going forward [with the trial] in the light of it [would] be
offensive” (Canada (Minister of Citizenship and Immigration) v. Tobiass,
[1997] 3 S.C.R. 391, at para. 91).
[77]
There are two public interests at play: “the
affront to fair play and decency” and “the effective prosecution of criminal
cases”. Where the affront is “disproportionate”, the administration of justice
is “best served by staying the proceedings” (R. v. Conway, [1989] 1
S.C.R. 1659, at p. 1667).
[78]
In other words, when the conduct is so
profoundly and demonstrably inconsistent with the public perception of what a
fair justice system requires, proceeding with a trial means condoning
unforgivable conduct.
[79]
The Crown who is the focus of this appeal
threatened one of the co-accused, Sergio Piccirilli, on three separate
occasions. The threats were made twice to Mr. Piccirilli personally and once to
his lawyer. All were to the effect that if Mr. Piccirilli did not plead guilty,
he would be charged with additional, serious offences. By the time the trial
started several months after the last threat, the Crown was on medical leave
and a new Crown was assigned to the case. New charges were in fact brought.
[80]
The trial judge concluded that the Crown’s
conduct was in “bad faith”, “unacceptable”, “intolerable”, “unjustifiable”, and
was one of the “exceptional and rare cases” that justified a stay.
[81]
The Court of Appeal agreed that the threats were
“unacceptable” and “outrageous”, but found that the trial judge erred in
imposing a stay because he did not undertake a sufficient balancing or
sufficiently consider the context. That context included the fact that the
threats were made more than a year before the trial began, that counsel did not
react immediately, and that the Crown was replaced for health reasons months
before the trial started. In other words, the impact of the threats was
mitigated by the passage of time and the change in personnel.
[82]
With great respect, however, the passage of time
does not operate to attenuate what was unpardonable conduct. Time is not a
legal remedy for a fundamental breach of the Crown’s role, and cannot
retroactively cure intolerable state conduct. The reason, therefore, that the
trial judge did not mention the passage of time in assessing the impact of the
threats on the public’s confidence in a fair justice system, is that it was not
relevant. It was the fact that the threats were made at all that was key, not
when they were made (United States of America v. Shulman, [2001]
1 S.C.R. 616).
[83]
Moreover, I am not persuaded that a balancing
exercise was required here. The trial judge was unequivocal in concluding that
the abuse justified a stay. There was none of the uncertainty as to the
propriety of a stay that this Court said was a condition precedent to the need
for a balancing exercise (Tobiass, at para. 92; R. v. Regan,
[2002] 1 S.C.R. 297, at para. 57).
[84]
But in any event, it is not at all clear to me
how one goes about such a balancing. When a trial judge has concluded that
conduct is “so egregious that the mere fact of going forward in the light of it
will be offensive” (Tobiass, at para. 91), against what does one
balance that singularly egregious state conduct? When a trial judge has found
that the conduct cannot be condoned because it is such an exceptional assault
on the public’s sense of justice, it seems to me to be conceptually
inconsistent to nonetheless ask the court to undermine its own conclusion by
re-weighing the half of the scale that contains the public’s interest in trials
on the merits. It is one thing to require that trial judges look at the
“competing interests at play” (R. v. Bellusci, [2012] 2 S.C.R. 509, at
para. 29) before concluding that the state conduct could not be condoned,
but how, having concluded that it could not be condoned, can such conduct be
subjected to yet another balancing of factors to determine whether it is
nonetheless pardonable?
[85]
Of course the public has an interest in trials
on the merits, but it has an even greater interest in knowing that when the
state is involved in proceedings, particularly those that can result in an
individual’s loss of liberty, it will put fairness above expedience. Justice is
not only about results, it is about how those results are obtained. When a
Crown threatens an accused with additional offences if he or she does not plead
guilty, the public’s interest in the results of a trial must yield to the
transcendent interest in protecting the public’s confidence in the integrity of
the justice system.
[86]
In Bellusci, this Court cautioned
appellate courts to exercise restraint with respect to the findings of the
trial judge, intervening only if the trial judge “misdirects himself or if his
decision is so clearly wrong as to amount to an injustice” (para. 17; see also Regan,
at para. 117; Tobiass, at para. 87). There was no such misdirection or
injustice here. On the contrary, the trial judge concluded that a stay was
justified in order to prevent an injustice to the justice system
itself. I agree.
[87]
I would allow the appeals.
Appeals dismissed, Abella J. dissenting.
Solicitors for the appellant Antal Babos: Étude Légale
Franco Schiro, Montréal.
Solicitors for the
appellant Sergio Piccirilli: Pilon & Associés, Montréal.
Solicitor for
the respondent: Public Prosecution Service of
Canada, Montréal and Ottawa.
Email this Content