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In light of allegations of police brutality at the G20 World Summit, the recently-decided case of R. v. Tran, 2010 ONCA 471 is of particular significance. Released last week, the case involved multiple grounds of appeal surrounding a stream of violent home robberies. Accused Quang Hoang Tran appealed the judicial remedy granted after his Charter rights were violated by police, asking for a stay of proceedings instead of a sentence reduction. The Court of Appeal allowed this ground of appeal and gave Tran a stay of proceedings.
Background and Facts
In 2002, four home robberies took place in Mississauga, Ontario. In each home invasion, perpetrators armed with guns and knives broke into residential houses early in the morning. After binding the residents, the perpetrators ransacked the homes and abused the residents. During different incidents, an elderly woman was confined and an 8-year-old girl was assaulted. The perpetrators went as far as to carve a dollar sign into a man’s back with and knife, and a woman was sexually assaulted in which a gun was placed in both her mouth and vagina. Tran actively participated in the robberies. After his accomplices were arrested, he followed his counsel’s advice and turned himself in to police on March 27, 2003. During his transfer from Hamilton to the Peel Regional Police department, Tran was assaulted by two Peel officers, who punched him in the ribs and face. Tran was left with a broken jaw in two places and permanent damage.
Police officers Conway and Vander Wier gave a different story, stating Tran had sustained his injuries by way of a bad fall. At trial, expert medical evidence led the trial judge to believe Tran’s version of events. Officer Vander Wier was present during the trial, and was in constant contact with key Crown witnesses, which Tran argued constituted witness tampering. Finding that Tran’s rights under ss. 7 and 12 of the Canadian Charter of Rights and Freedoms were breached, the judge used s. 24(1) of the Charter to determine an appropriate remedy.
Section 24(1) states:
Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
The trial judge had two options available: either stay the proceedings or reduce the sentence according to the circumstances. By weighing the seriousness of Tran’s crime against the seriousness of the breach (note: no evidence at trial was affected by the police misconduct) the judge opted for a sentence reduction, finding the situation was not one of those “clearest of cases” where a stay is preferred.
Stay of Proceedings versus Sentence Reductions
Judges have two options available when granting a Charter remedy.
First, as set out in R. v. Glykis (1995), 84 O.A.C. 140 (C.A.), a sentence reduction is available in two situations: (i) if the breach mitigates the seriousness of the offence, or (ii) if the breach imposes additional punishment to the accused. Reducing a sentence remedies excessive force by the police through a lighter sentence – which implicitly recognizes the police brutality as a more unorthodox and unacceptable method of “punishment.”
The second option available to a judge is a stay of proceedings, which is an indefinite suspension of judicial proceedings with no adverse effect on one’s criminal record. In R. v. Mack, [1988] 2 S.C.R. 902, the SCC held that a stay is preferable when it is necessary to communicate that unacceptable state conduct will not be condoned. The purpose of a stay of proceedings (as a remedy) is to maintain the public’s confidence in the legal process.
The law was further developed in Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391. Drawing on the previous decision of R. v. O’Connor, [1995] 4 S.C.R. 411, which stands for the precedent that a stay is an “exceptional remedy to be employed as a last resort,” the SCC held in Tobiass that a stay is warranted if the Crown has acted in a way as to negatively affect the integrity of the administration of justice. The SCC outlined two criteria to be met in determining whether the administration of justice would be called into question.
(i) The prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and
(ii) No other remedy is reasonably capable of removing that prejudice.
The court also held that there may be a third criterion if it is unclear the abuse in question is sufficient. In those cases, the court held that the interests of granting a stay must be balanced against the interest society has in coming to a final decision.
For the purposes of Tran’s case, paragraph 96 of the Tobiass decision is useful.
[I]f a past abuse were serious enough, then public confidence in the administration of justice could be so undermined that the mere act of carrying forward in the light of it would constitute a new and ongoing abuse sufficient to warrant a stay of proceedings. However, only an exceedingly serious abuse could ever bring such continuing disrepute upon the administration of justice. It is conceivable, we suppose, that something so traumatic could be done to an individual in the course of a proceeding that to continue the prosecution of him, even in an otherwise unexceptionable manner, would be unfair.
The Ontario Court of Appeal: A Classic Catch-22 Situation
Writing for an unanimous Court of Appeal, Epstein J.A. held that the trial judge erred, stating that the case was “sufficiently serious” and the police conduct jeopardized the perception of trial fairness. Tran was granted a stay of proceedings.
With one reservation, I consider the Court of Appeal's decision to be a logical application of the law.
My reservation is concerning the meaning of “exceptionally”. Epstein J.A. held that the assault to the face Tran experienced was “more than sufficiently serious to warrant a stay.” Referencing the above quote from Tobiass, supra para. 96, it seems to be that the bench in Tobiass wished to reserve this particular remedy for “the worst of the worst.” Particularly, I focus on the phrase “it is conceivable, we suppose.” This wording implies that the serious conduct must be simply atrocious in order to stop a prosecution. I question whether the bench in Tobiass would have classified a broken jaw as “exceedingly serious.” Nonetheless, the judiciary has discretion and exercised it.
I do not envy the difficult decision that the court had to make. What is most troubling for society is whether justice truly has been served in this case. By no means do I suggest police brutality is acceptable in any way whatsoever. However, do the victims of these violent attacks feel as if true justice has been served? Tran is now a free man, and many belonging believing in denunciation would argue that Tran has not received the punishment that he deserves. This case may further critics’ view of the justice system, where an accused’s rights have been protected at the cost of his victims. Unfortunately, there is no ideal solution, and the decision must thus stand as a warning to police associations to act properly to prevent criminals from escaping justice on account of the constantly-quoted “technicality.”
17 Comments
From an immigration perspective, I find the decision extremely interesting because I wonder what effect it has on the desire of potential immigrants to select Canada as their destination country.
On the one hand, it shows that Canada does not tolerate police brutality. This will certainly be an attractive people for individuals coming from nations where such brutality is either common place or goes unpunished.
Yet, the decision is also likely to raise concerns about whether Canada is safe or not. In Tran, an individual who confessed to brutal crimes is now back on the streets. His victims are left knowing that because of police misconduct, Tran will go unpunished for the crimes he has committed. Some might consider this to be an derogation of justice, others a technicality. Would an elderly man considering immigrating to Canada want to go through with it knowing that if someone carved a dollar sign into his back they would be set free if the police broke the man's jaw?
Excellent analysis Allison, thanks. This case does unfortunately highlight a fundamental flaw in our justice system that arises from time to time and one that will undoubtedly leave the public and victims of this crime questioning the system.
Yes, the police misconduct was surely wrong and they should be dealt with accordingly. However, because the police did something wrong, now the victims are punished because one of the people responsible for inflicting such horrible acts on them, well in excess of what the police did in fact, goes free. That certainly does not install a sense of justice in the minds of victims or the general public and as you mentioned will just lead to more public cynicism of the system and courts.
In your send-up, you imply that 24(1) can be used as a matter of course in ordering a sentence reduced in response to a Charter breach. As R. v. Nasogaluak, 2010 SCC 6, states, this is not the case; instead, 24(1) is only meant to be used in this manner when the breach cannot be related back to the circumstances of the offence and the offender per the principles of sentencing found at s.718 of the Code. 24(1) sentence remedies are for exceptional cases only (see para. 64). As Lebel wrote,
"[5] As a general rule, therefore, it is neither necessary nor useful to invoke s. 24(1) of the Charter to effect an appropriate reduction of sentence to account for any harm flowing from unconstitutional acts of state agents consequent to the offence charged. When acting within the boundaries of the statutory sentencing regime, of course, the sentencing judge must exercise his or her discretion within the parameters of the Criminal Code. The judge must impose sentences complying with statutory minimums and other provisions which prohibit certain forms of sentence in respect of the offence."
Furthermore, in spite of your criticism, Tran is consistent with Tobiass. In Tran, the broken jaw was just the beginning: after the cops kicked him around, they cleaned up his blood to conceal their illegal assault and attempted to get Tran to record a coerced videotaped statement in which he was to say that he fell and cut his lip. Not satisfied with merely committing the offence of obstruction of justice, the officer who struck the blow proceeded to perjure himself at Tran's trial and was ordered excluded from the proceedings. The trial Crown, in a complete lapse of judgment that should have resulted in censure, allowed the cop to continue to participate in the trial by preparing witnesses. As the Court of Appeal wrote,
"[106] It is essential for the court to distance itself from this kind of state misconduct – an unwarranted, grave assault causing bodily harm, delayed medical attention, a cover up that included perjury, a prosecutorial response that affected the perception of trial fairness and no effective response. Not to do so would be to leave the impression that it tacitly approves of it. The granting of a stay of proceedings affirms the fundamental values of our society and ensures that the rights under the Charter are not, in substance, meaningless."
As regards the comments of Messers. Muerrens and Jones, the long-term administration of justice -- society's real interest -- is critically undermined when cowboy cops are allowed to beat suspects, endanger their lives, conceal evidence, commit perjury, and yet still continue to participate in court proceedings. Those aren't technical violations, friends. If the cops had been content to merely bash his face in Tran would be in prison, albeit with a reduced sentence, as has happened in dozens of other cases. For context read Nasogaluak, where a stay wasn't entered in spite of broken ribs and a punctured lung.
Thank you for your comment Wim.
With respect to s. 24 and a sentence reduction, I focused on paragraph 82 of the Tran decision.
How would you reconcile this statement with the one you provided?
With respect to Tobiass, my reservation still remains. In paragraph 89, the Court of Appeal wrote: "Under s. 7 of the Charter, however, a small residual category of abusive action exists which does not affect trial fairness, but still undermines the fundamental justice of the system (O’Connor, at para. 73)" The actions by the police officers in this case (it was decided) had not affected the trial fairness - certainly they tried, but ultimately, trial fairness was not affected. However, the bench decided courtroom fairness may very well have been.
This is where I disagree. Perhaps I have great faith in the people of Canadian society, but I would like to believe that most people, as witnesses in a trial, would tell the complete truth absent any influence from a police officer. Maybe I'm just naive, but to me a reasonable person would not think Canadians are that easily swayed. Following that, I don't think trial/courtroom fairness was affected by the officer's actions.
If I may, I'd also like to briefly comment on your strongly-worded criticism to the other two posters on this thread. I gather you feel rather strongly about police brutality, and I commend that. Our society must do all that it can to address this issue. I believe the point they both were trying to make was not about "cowboy cops" but instead, about Tran himself. This whole case has been focused on the cops. But what about Tran? Yes, we need to send a message about police brutality. However, is the best way to do this to release this criminal back into society? From the victims' standpoint - no. What about the 8 year old girl who was assaulted? The man who now has a scar of a dollar sign in his back? The woman who was sexually assaulted? To them, justice has not been served. But, this is exactly why the subtitle was titled "Catch-22" - because I honestly don't know what else could be done.
Hi all,
A quick question/comment from someone not familiar with the details of the law in this kind of situation.
Why does abuse by police officers decrease Tran's sentence? Is it not a better solution to
simply punish him for the crimes he committed and punish the two offending police officers
for their crimes?
Hi Sean,
Wonderful question. I think you've identified one of the key issues here. According to the decision at para. 106:
It is essential for the court to distance itself from this kind of state misconduct – an unwarranted, grave assault causing bodily harm, delayed medical attention, a cover up that included perjury, a prosecutorial response that affected the perception of trial fairness and no effective response. Not to do so would be to leave the impression that it tacitly approves of it. The granting of a stay of proceedings affirms the fundamental values of our society and ensures that the rights under the Charter are not, in substance, meaningless.
If Tran's rights under the Charter were violated (which they were) then logically Tran must be compensated in some way. However, the Court wished to send a signal against all misconduct in this case. So it seems he (Tran) benefitted from the Crown's decision to let the officer be part of the court proceedings, an event he had no control over.
The two decisions are consistent. It is possible to use 24(1) to reduce a sentence, but per the SCC it is not the preferred route. My objection was a limited and technical one, namely that stating that 24(1) defines the entirety of the domain of options open to a judge in circumstances such as these is incorrect. As the case law reveals, a judge may in fact do one of four things:
1) fold the breach back into the determination of a fit sentence per s.718 CCC;
2) use 24(1) to reduce the sentence;
3) user 24(1) to order a stay; or
4) do nothing, the Charter equivalent of a nominal award of damages, ie. recognition of the breach comprises the substantive remedy.
And it is preferred that he or she do the first wherever possible. Lebel refused to categorically exclude the possibility of 24(1) sentence reductions in all contexts, but he did state clearly that there are other, better ways to craft equivalent remedies.
With respect to your second thrust, I think you're missing the point. The issue in this case is not so much police brutality as it is the deliberate attempt by serving officers to subvert the process of the courts by fabricating evidence and committing perjury. Obviously I dislike police brutality, but I (and the judiciary, it must be added) dislike lying under oath more. The administration of justice in Canada can survive occasional instances in which the police behave badly, but it cannot long endure abuses in which the police use their particularly privileged, powerful position vis-a-vis individual defendants to obstruct justice. I hasten to point out that the obstruction that occurred here was found to be a judicial fact by the trial judge and that this finding was affirmed by the Court of Appeal; it scarcely bears mentioning that a finding of fact weighs infinitely more than airy assertions from first principles about what one thinks Canadian citizens are likely to do if they're threatened before being placed in the witness box.
Maintaining the long-term integrity of the administration of justice is a matter of massaging public perception as much as it is one of controlling actual, demonstrated abuses. The appearance of impropriety or prejudice is nearly as bad as actual impropriety or prejudice given the conclusions that the public is apt to draw from instances in which state actors violate rights with impunity and then use their authority to conceal evidence of the same. Using actual unfairness at trial as the determining factor in whether a remedy should be ordered sets the bar too high and ignores the extent to which other s.24 jurisprudence and indeed the whole animating force of the Charter itself places the protection of individual liberties at the forefront (indeed, what else is a Charter for?) while making trial fairness somewhat of an afterthought. This is why the 24(2) test from Grant is formulated in the way that it is and it's why the companion case of Harrison was decided the way it was. Where the breach is serious, controlling the actions of the state becomes more important than the result in any individual trial. And of course the victims have no standing in Canadian criminal law anyways. Prosecutions are undertaken by Her Majesty to protect the interests of society at large, which is why in cases like this the calculus shifts from tactical justice to long-term justice as I have described.
Finally, the question of why punishing the police officers and Tran is not a better solution to this problem is answered by the fact that punishing a third party is not a "remedy" as it is known under either the Charter or our law generally. The parties in a 24 application and the scope of the relief that can be offered are 1) the state and 2) the victim of the breach, and the purpose of the relief given is to restore the position of the second in a way that encourages respect for the rights of all other citizens. Prosecuting a third party does not produce a guaranteed result (the defendant in that action may be acquitted) and does not restore the position of the applicant.
As an immigrant and former abused spouse in Canada the police do tolerate lies and abuse. It happened to me and depending on how much money you have you can fight it but many do not. IN the last 5 months there have been other cases from Hamilton to Toronto where a non crimina was beaten, mistaken for a criminal and then the police realized they had the wrong person. Thier justifications are lame. Cananda needs one centeral police abuse agency like the UK and US has to investigate police abuses and not be assoicated to the police as the are in Canada currently.
Oh, btw why is that non lawyers cannot seem to speak freely on issues that are near and dear to them on legal forums in Canada? That is just utterly ridiculous. You cannot fix what is broken unless you have all parties on board. I am sick of just legal experts involved in reports on the law. Half of the reports and recommendations in Canada are never implemented and so the problems persist.
Some police officers seem to elude the justice system no matter what criminal act they commit. Just look at the David Leclair shooting in Gatineau where an unarmed man was shot 3 times by officer Pierre-François Blais, this cop got away with what appears to be murder. Why?, simply because his father is a federal judge (Piere Blais) who contacted his former conservative collegue and friend Jean Charet to have is son exonerated. Charet then contacted his public safety minister Jacque Dupui who in turn, took steps to influence the police investigation, the coroner's report and the police ethics investigation. As a result, the unthinkable happened, the cop was exonerated. Why do you think Jacque Dupui resigned recently? He bailed out before the scandel would come out to haunt him. Only a public inquiry into the manipulation of this case will bring this cop to justice.
I thought I'd mention that in 2007, an independent federal government office was created that helps victims of crime and their families. The motto of the Federal Ombusman for Victims of Crime is "Heard. Respected. Victims First."
I do not know if the victims in this case would qualify under the mandate of this gov't office but I hope they will look into this free service.
Thank you Wim for your analysis on this post!
What lies at the root of inequality and victimization is the failure to apply the dual rights of the victims with equal consideration and force under the Charter (S. 15(1)and (2). In this disturbing case, the police misconduct and the crown prosecutor's conduct were intolerable and absolutely unacceptable. The victims have experienced how the ire of the court (justified) can remove a victim's basic rights leaving the merits of their claims unresolved (S 24(1) and (2).
Our entire legal system rests on good judgment of authorities plus the Charter Rights but this case is an example where "one without the other is just not good enough."
Do these victims of violent crime have a legitimate civil case against the justice system for a breakdown of reciprocity and asymmetrical application of the Charter?
Could the victims enter pleas of res judicata (effect to hear their claims) because the parties (police and crown) omitted to bring forward to the victims either from "negligence, inadvertence, unintentional or even accidental" their part in failing to exercise reasonable dilegence (conduct not in support of the validity of the law) in the handling of this violent criminal case.
Does the wording "stay of proceedings", in this OCA decision, also specify "and all other proceedings related to this case" ? If not, can this case be re-opened by the Crown?
Looks like Pierre-François Blais is Canada's first O.J. Simpson Case, O.J. Blais.
Gatineau police officer Pierre-Francois Blais, who shot to death David Leclair, will face new Quebec police ethics commission charges of intimidation, discreditable conduct, excessive use of force and abuse of authority and writing false reports. One allegation is he unnecessarily turned on the heater of his police car in the middle of August while he had a man in custody in order to suffocate him. Blais is the son of former Canadian justice minister Pierre Blais. The disciplinary hearings will begin in may 2016.
The officer in the Tran case was found NOT GUILTY of all charges relating to Tran. So to use a legal term your discussion is moot. I know nothing of Tran but I do not something about the case against vanderWier. He did not break Tran's jaw; he could not have broken Tran's jaw in the fashion postulated by the Crown in his trial. I know, I was the expert. Maybe you legal eagles should let the process play out. Police officers, like everyone else are entitled to due process just like everyone else.
Well van der Wier was found not guilty by a jury of his peers despite a Crown who acted like a complete jerk. So what do you circle-jerk lawyers have to say now that Tran has essentially got away with his crimes? Doe due process and innocent until proven guilty apply to Peace Officers or only convicted criminals?