Present: Estey*,
McIntyre, Lamer, Wilson and La Forest JJ.
on appeal from the court of appeal for quebec
Constitutional
law ‑‑ Charter of Rights ‑‑ Right to fair trial ‑‑
Remedies ‑‑ Motion for stay of proceedings pursuant to s. 24 of the
Charter ‑‑ Widely reported speech in National Assembly respecting
accused's defence and credibility of a witness ‑‑ Whether right to
fair trial jeopardized ‑‑ Whether stay of proceedings should be upheld
‑‑ Canadian Charter of Rights and Freedoms, ss. 7 , 11 (d), 24(1) .
Respondent's
trial was discontinued by the trial judge because the exceptional publicity
given to statements made in the National Assembly about the accused's defence
and the credibility of a witness made it impossible to conduct a fair trial. A
new trial was ordered but, before a date was fixed, the respondent brought two
motions: one to quash the information and to have the accused set free, and the
second, based on s. 24(1) of the Canadian Charter of Rights and Freedoms ,
to stay the pending proceedings and any other proceedings that might be laid
against the accused in respect of the same facts, as well as the remedies
sought in the first motion. The judge who heard the motions granted both
motions and accordingly ordered a stay of proceedings of the pending charges
and of any other charge that might be laid against him in respect of the same
facts. An appeal from this decision was dismissed on its merits by a majority
of the Court of Appeal. Appellant appealed as of right.
Held (Lamer J.
dissenting): The appeal should be allowed.
Per McIntyre, Wilson
and La Forest JJ.: As regards the motion made pursuant to the Charter ,
the stay of proceedings was premature: whether the respondent can be tried by
an impartial jury can only be determined when the jury is selected. No evidence
indicated that it would be impossible to select an impartial jury and
speculation on the matter should not be relied on in deciding the question. The
question of an appellate court's substituting its opinion for that of the trial
judge therefore did not arise here.
Although
publicity should lead to challenge for cause at trial in an extreme case, it
need not be assumed that a person subjected to such publicity will necessarily
be biased. A jury is quite capable of disabusing itself of information that it
is not entitled to consider.
Judicial
abdication is not the remedy for an infringement of the sub judice rule,
especially where serious accusations are made against the police and government
leaders. Such accusations should be scrutinized by the judiciary in the public
interest. The reckless remarks of politicians should not frustrate that
process.
The
trial judge erred in law in granting a stay of proceedings under the first
motion because the motion sought to quash the information and not to stay the
proceedings. Even if the trial judge were correct in this respect, the
disposition would remain unchanged for the evidence did not show that the
Attorney General had committed an abuse of process.
Per Lamer J.
(dissenting): The jurisdiction of the Superior Court judge to stay the
proceedings is not in issue but rather his conclusion in light of the
circumstances. Absent apparent error on the face of the record, this Court
should not substitute its view of the circumstances for that of the Superior
Court judge, who clearly was in a better position to assess the significance of
the statements made in the National Assembly.
Cases Cited
By La Forest J.
Applied: Operation
Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441; considered: R.
v. Hubbert (1975), 29 C.C.C. (2d) 279, aff'd [1977] 2 S.C.R. 267; referred
to: Amato v. The Queen, [1982] 2 S.C.R. 418; Petersen v. The
Queen, [1982] 2 S.C.R. 493; R. v. Jewitt, [1985] 2 S.C.R. 128; R.
v. Makow (1974), 20 C.C.C. (2d) 513; R. v. Kray (1969), 53 Cr. App.
R. 412; R. v. Corbett, [1988] 1 S.C.R. 670; R. v. Goguen, Que.
S.C., Biron J., No. 500‑01‑006139‑817, November 16, 1982; R.
v. Parent (1986), 23 C.R.R. 291.
Statutes and
Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7 , 11 (d),
24(1) .
Criminal Code, R.S.C. 1970, c. C‑34, s. 605(1)(c).
APPEAL
from a judgment of the Quebec Court of Appeal, [1984] C.A. 466, 15 D.L.R. (4th)
218, 16 C.C.C. (3d) 532, 45 C.R. (3d) 341, dismissing an appeal from a judgment
of the Superior Court, [1982] C.S. 1006, 1 C.C.C. (3d) 477, 30 C.R. (3d) 129, 3
C.R.R. 12. Appeal allowed, Lamer J. dissenting.
Claude
Provost, for the appellant.
Harvey
Yarosky and Richard Mongeau, for the respondent.
English
version of the judgment of McIntyre, Wilson and La Forest JJ. delivered by
1. La Forest J.‑‑This
appeal relates to two motions made by the respondent, Vermette, before a judge
of the Superior Court of the province of Quebec. The first sought to quash the
information against him, the second sought a stay of proceedings or to quash
the information under s. 24(1) of the Canadian Charter of Rights and
Freedoms , which empowers a court of competent jurisdiction to accord such
remedy as the court considers appropriate and just in the circumstances. The
facts are as follows.
2. The
respondent, an inspector with the Royal Canadian Mounted Police (the
"R.C.M.P."), was accused of breaking and entering and theft of
computer tapes containing the list of members of the Parti québécois and of
conspiring to do so. Several other officers and former officers of the R.C.M.P.
were also accused of the same offences in other cases.
3. The
respondent chose to be tried by judge and jury. His trial, presided by Barrette‑Joncas
J., began on April 13, 1982. On May 5, 1982, the defence called its second
witness, a former R.C.M.P. officer, who, though not accused in the present
case, is one of the persons named as a co‑conspirator. He was in fact in
charge of the R.C.M.P. operations relating to separatists/terrorists in the
territory of Quebec at the time of the alleged conspiracy. The defence resorted
to the testimony of this former colleague of the respondent in an attempt to
establish that the respondent had acted in good faith in his capacity as an
officer of the R.C.M.P.
4. What
led to the present litigation is that some of the statements of the witness
constituted serious accusations against the Parti québécois and some of its
leaders. On the day this evidence was given, during question period at the
National Assembly of the province of Quebec, the then leader of the opposition
asked the Premier to deny or to confirm these accusations. Despite the fact
that the Speaker had warned the House that these remarks tended to create
serious prejudice to the rights of the respondent, the Premier denounced not
only the actions of the witness, whose credibility he attacked in colourful and
abusive language, but also those of the defence lawyers, the federal government
and the R.C.M.P. He even accused members of the R.C.M.P. of having committed
several crimes. This diatribe lasted some twenty minutes.
5. As
one might expect, this exchange received exceptional publicity in the media.
The Premier's remarks made headlines in the newspapers on the following and on
succeeding days. The newspaper, television and radio coverage was such that
Barrette‑Joncas J. found it necessary to discontinue the trial. In her
view, the exceptional publicity given the incident that had taken place in the
National Assembly made it impossible to conduct a fair trial. No one questions
the correctness of this decision.
6. A
new trial was ordered, but before a date was fixed, the respondent brought the
two motions already mentioned before Greenberg J. The first, we saw, seeks to
quash the information and to have the accused set free, while the second, based
on s. 24(1) of the Charter , seeks the stay of the pending proceedings
and any other proceedings that may be laid against the accused in respect of
the same facts, as well as the remedies sought in the first motion.
7. After
having referred to and reaffirmed the principles of the separation of power,
the "rule of law", the integrity of the judicial process, and the
independence of the judiciary and the scheme of the Charter , Greenberg
J. came to the conclusion that the remarks made by the Premier in the National
Assembly of Quebec, as well as the exceptional publicity that had surrounded
them, infringed the rights of the respondent to a full and complete defence and
to a fair trial guaranteed by ss. 7 and 11 (d) of the Charter .
This infringement, in the judge's view, amounted to a denial of the rights of
the respondent, and the court therefore had a duty to provide a remedy.
8. Greenberg
J. then turned his attention to the motion to quash the information, and
expressed the view that it was based on the doctrine of abuse of process which,
if allowed, ordinarily results in a stay of proceedings. He relied on this
Court's judgment in Amato v. The Queen, [1982] 2 S.C.R. 418, for his
view that the doctrine of abuse of process continues to exist in Canada and may
therefore be applied by courts of first instance in the exceptional cases where
it is justified, i.e., in cases where continuation of the prosecution would be
so oppressive and vexatious as to amount to an abuse of process. In his view,
to require the respondent to be tried a second time in this case would be so
oppressive and vexatious as to amount to an abuse of process and real
injustice. On this basis, the accused, in his view, had three possible
remedies, namely, (1) an acquittal, (2) the quashing of the information and (3)
a stay of proceedings. The first of these remedies could not be granted since
only a court composed of a judge and jury (as the accused had chosen) could
acquit him. As to the second possibility, the judge also rejected it for the
reason that, under the Criminal Code , the court did not have the power to
quash the information which was regular and complete. In consequence, he
concluded that the only appropriate remedy was a stay of proceedings.
9. Turning
then to the motion based on s. 24(1) , the judge concluded that a stay of
proceedings was an appropriate remedy for the alleged infringement.
10. In
short, he granted both motions and ordered a stay of proceedings of the pending
charges and of any other charge that might be laid against him in respect of
the same facts.
11. The
Crown appealed this decision to the Court of Appeal of Quebec. The respondent
then filed a motion to quash the appeal on the ground that no right of appeal
existed. This motion was denied because a stay of proceedings is subject to
appeal because it amounts to an acquittal for the purposes of an appeal; the
court relied on the following decisions of this Court: Amato v. The Queen,
supra; Petersen v. The Queen, [1982] 2 S.C.R. 493; see also R.
v. Jewitt, [1985] 2 S.C.R. 128, and now s. 605(1)(c) of the Criminal
Code, R.S.C. 1970, c. C‑34.
12. A
majority, Kaufman, L'Heureux‑Dubé and Chouinard JJ., dismissed the appeal
on the merits. The late Chief Justice Crête and Beauregard J. dissented. Each
of the judges gave separate reasons.
13. I
turn now to the majority judges. Kaufman J. was of the view that, while in
theory it might be possible to find a jury that would consider itself capable
of adjudging the respondent's case solely in relation to the evidence presented
before the court, in practice, there will always be a doubt concerning the
fairness of the trial. That doubt, in his view, justified the dismissal of the
appeal because the rights of the respondent were seriously affected.
14. For
L'Heureux‑Dubé J., while the judiciary finds itself paralyzed by the
nature of the acts of the head of the provincial executive power, this aspect
of the matter should not override the inalienable right of the accused to a
fair trial. Indeed, in her view, the trial of the respondent could not give the
guarantees of justice, fairness and impartiality essential to the determination
of the guilt or innocence of the accused. The principle of the presumption of
innocence is here threatened and must therefore be protected. Finally, the
judge held that s. 24 confers on the judge having jurisdiction a sufficiently
wide discretionary power to order the appropriate remedy.
15. Chouinard
J. was also of the view that the judgment of Greenberg J. was well‑founded.
A flagrant infringement of a fundamental right of an accused such as existed
here was sufficient, in these exceptional circumstances, to warrant a stay of
proceedings. Indeed, it was more the extent of the breach of a fundamental
right than the difficulty of selecting an impartial jury that, in his view,
warranted the application of s. 24 of the Charter .
16. Crête
C.J., dissenting, would have allowed the appeal and reversed the judgment of
Greenberg J. In fact, there was no doubt, in his view, that the remarks made in
the National Assembly were such as to seriously interfere with the right of the
respondent to a fair trial. He was also of the view that s. 24(1) of the Charter
provided an appropriate means of remedying this interference with fundamental
rights. However, he was of the view that a stay of proceedings was premature in
the present case. In fact, in his view, it would only be at the time when a
jury was selected that it would be possible to determine whether it is
impossible for the respondent to receive a fair trial by an impartial jury.
17. Beauregard
J., like the Chief Justice, would have allowed the appeal. In his view, there
was no evidence to indicate that it would be impossible to select an impartial
jury in a reasonable time. Moreover, he stated that no proof had been presented
to establish that the Attorney General had committed an abuse of process.
While, according to Beauregard J., constitutional principles must at all times
be protected, judicial abdication is nonetheless not the remedy for a violation
of the parliamentary rule of sub judice.
18. The
Crown appeals as of right from the decision of the Court of Appeal. The
questions of law that he raises are based on the dissenting judgments of Crête
C.J. and Beauregard J. The first of these questions relates to the jurisdiction
of Greenberg J. in this case, given that the respondent only apprehended a
contravention of his rights when a trial took place. However, since the filing
of the notice of appeal, this Court has decided in the case of Operation
Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, that s. 24(1) applies not
only in the case of an actual interference with the guaranteed rights, but also
when an apprehension of such an interference at a future trial can be
established by an applicant. The appellant, therefore, abandoned this ground of
appeal. He, however, submits that the respondent has neither established that
his right to a fair and public hearing by an impartial tribunal (see s. 11 (d)
of the Charter ) was infringed or denied, or that such an interference
may be apprehended.
19. As
to the question of abuse of process, the Crown is of the view that this must be
returned to the Court of Appeal, in view of the fact that the judges of that
court did not deal with the question. For his part, respondent's counsel
submits that if the appeal is allowed, the whole matter should be returned to
the trial judge.
20. As
regards the motion based on the provisions of the Charter , I am
completely in agreement with the reasons given by the dissenting judges. In my
view, a stay of proceedings was, in this case, premature. It is only at the
stage when the jury is to be selected that it will be possible to determine
whether the respondent can be tried by an impartial jury. This does not therefore
involve substituting our opinion for that of the judge. As Beauregard J. notes,
there is no evidence indicating that it will be impossible to select an
impartial jury in a reasonable time. This is rather a matter of speculation.
21. In
deciding the question, one must not, in my view, rely on speculation. As the
Court of Appeal of Ontario observed in R. v. Hubbert (1975), 29 C.C.C.
(2d) 279, at p. 289 (affirmed by this Court: [1977] 2 S.C.R. 267), "There
is an initial presumption that a juror ... will perform his duties in
accordance with his oath", and the fact that he may have read about the
case through the media is by and large unimportant; see R. v. Makow
(1974), 20 C.C.C. (2d) 513, at pp. 518‑19 (B.C.C.A.); R. v. Kray (1969),
53 Cr. App. R. 412, at p. 414, both cited with approval in Hubbert. In
an extreme case (and the present certainly qualifies), such publicity should
lead to challenge for cause at trial, but I am far from thinking that it must
necessarily be assumed that a person subjected to such publicity will
necessarily be biased. The law on the matter was thus expressed in the
following passage from Hubbert, at p. 292:
In an extreme case, publication of the facts of a
case can give rise to the degree of partiality that should lead to the right to
challenge for cause. Such a case was R. v. Kray et al., supra,
where there had been a previous trial, widely covered by the London press. At
least two newspapers published discreditable facts, not in evidence at the trial,
concerning some of the accused. At a subsequent trial for other serious
offences, including murder, counsel for one of those accused sought to
challenge prospective jurors for cause. After observing that the mere fact of
accurate publication of the facts of a previous trial did not, in itself,
produce a case of probable bias against jurors empanelled in a later case,
Lawton, J., said at p. 415:
The situation, however, is, in my
judgment, entirely different when newspapers, knowing that there is going to be
a later trial, dig up from the past of the convicted who have to meet further
charges discreditable allegations which may be either fact or fiction and those
allegations are then publicised over a wide area. This does, in my judgment,
lead to a prima facie presumption that anybody who may have read that kind of
information might find it difficult to reach a verdict in a fair‑minded
way. It is, however, a matter of human experience, and certainly a matter of
the experience of those who practice in the criminal courts, first, that the
public's recollection is short, and, secondly, that the drama, if I may use
that term, of a trial almost always has the effect of excluding from
recollection that which went before. A person summoned for this case would not,
in my judgment, disqualify himself merely because he had read any of the
newspapers containing allegations of the kind I have referred to; but the
position would be different if, as a result of reading what he had, his mind
had become so clogged with prejudice that he was unable to try the case
impartially.
This Court has
recently had occasion to underline the confidence that may be had in the ability
of a jury to disabuse itself of information that it is not entitled to
consider; see R. v. Corbett, [1988] 1 S.C.R. 670.
22. The
issue in this case should then have been left to be disposed of at trial
as was done in the very similar case of R. v. Goguen, Que. S.C. No.
500‑01‑006139‑817, November 16, 1982, per Biron J.,
arising out of the same incidents; see also R. v. Parent (1986), 23
C.R.R. 291.
23. I
am also in agreement with Beauregard J. that judicial abdication is not the
remedy for an infringement of the sub judice rule. That is all the more
important in a case like the present which concerns serious accusations not
only against the R.C.M.P. but also against the leaders of the federal and provincial
governments. It is in the public interest that such accusations be scrutinized
by the judiciary. I cannot accept that the reckless remarks of politicians can
thus frustrate the whole judicial process.
24. As
to the first motion, i.e., the motion to quash the information made against the
respondent, I do not think that this question should be returned to the Court
of Appeal as the Crown submits. While only Beauregard J. mentioned this first
motion in his reasons, the fact remains, as the notice of appeal to the Court
of Appeal, as well as its judgment, indicate, that that court was seized of an
appeal from a judgment of the Superior Court which had allowed both of the
respondent's motions. Consequently, this Court must consider whether the Court
of Appeal erred in law in refusing to allow the appeal from the decision of the
judge on this motion.
25. For
my part, I agree with one of the grounds raised by the Crown in its notice of
appeal to the Court of Appeal, namely that Greenberg J. erred in law in
granting a stay of proceedings under this motion, because it sought the
quashing of the information, not a stay of proceedings. Even if it were
necessary to hold that the judge was correct in treating the motion as if it
was a request for a stay of proceedings, this would have no effect on the
disposition of the matter. In fact, the only evidence submitted to us in this
case to support this motion consists of statements of politicians who were not directly
involved in the process. As Beauregard J. observes, there is nothing in the
evidence to show that the Attorney General had committed an abuse of process.
26. For
these reasons, I am of the view that the appeal should be allowed, the judgment
of the Court of Appeal set aside, the order of Greenberg J. staying the
proceedings in response to both motions set aside, and a new trial ordered on
the information.
English
version of the reasons delivered by
27. Lamer J.
(dissenting)‑‑The Superior Court judge considered that, in view of
the exceptional circumstances of the case at bar, the ends of justice would
only be served by a stay of proceedings. A majority of the Court of Appeal
subscribed to this view.
28. The
Crown is not challenging the jurisdiction of the Superior Court judge to stay
the proceedings but is asking this Court to consider the circumstances of the
case and conclude otherwise. Where no error is apparent on the face of the
record it is not desirable that this Court, while it has the jurisdiction to do
so, substitute its view of the circumstances for that of the Superior Court
judge, who clearly was in a better position than we, or the Court of Appeal,
are to assess the significance of the statements made in the National Assembly.
If we were to intervene nevertheless, I would in any case adopt the reasons of
Chouinard J.A.
29. I
would therefore dismiss this appeal.
Appeal
allowed, Lamer J. dissenting.
Solicitor
for the appellant: Claude Provost, Montréal.
Solicitors
for the respondent: Yarosky, Fish, Isaacs & Daviault, Montréal; Mongeau
Mailhot Roy, Montréal.
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