Update:
The following findings emerged as a result of an Ontario Court of Appeal’s decision, in a case called R. v. Tran et al :
The primary issues raised in this appeal pertain to the prosecution of the charges of conspiracy and the consequences of police brutality. These issues are raised in the context of charges arising out of a series of home invasions.
In April and June 2002, a number of violent robberies of private residences took place in the Mississauga area. The appellants, Quang Hoang Tran, Hoa Dang, and Robert Johnson, together with Hen Hai Thai, Dennis Rhodes, Kevin Dam, Mark Rodney, Mitchell Oraa and Randy Sachs, were charged with offences relating to these robberies.
In addition to various substantive charges, the indictment alleged two
counts of conspiracy. The first conspiracy count alleged that Thai, Tran and Johnson had, during a 15-month period ending in early March 2003, conspired together with other named but unindicted co-conspirators including Dang, Rhodes and Dam “to commit the indictable offence of armed robbery”.
The second conspiracy count alleged that Dang had conspired with other named but unindicted co-conspirators, including the other appellants as well as Rhodes and Dam, during a three-month period ending in late June 2002 “to commit the indictable offence of robbery by conspiring to plan, prepare and execute a series of home invasion style robberies”. In each invasion, the privacy and security of the homes were shattered, victims were violated, both physically and psychologically, and property was taken.
After a lengthy voir dire, the trial judge found that after Tran surrendered to answer the charges, he received a severe beating at the hands of two police officers resulting in a broken jaw and permanent injury. The police officers attempted to cover up their behaviour and, despite these outrages, the Crown permitted them remain in court to assist with the prosecution until the trial judge ordered otherwise.
The trial judge refused to stay the proceedings against Tran but found that the appropriate remedy was to reduce the sentence he would otherwise received by half. After this reduction, Tran was sentenced to 14 months’ imprisonment plus three years’ probation. Tran appealed both his convictions and his sentence.
The issue on appeal from conviction: Tran’s Charter remedy: Tran submits that the trial judge erred in refusing his application to stay the prosecution against him.
With respect to the sentence appeal, Tran contends that his sentence is excessive and that he should be given credit for time served under restrictive bail terms pending this appeal.
Tran’s Stay Application
The trial judge found that Tran’s rights protected by ss. (7) and (12) of the Charter had been breached. Tran argues before this court, as he did before the court below, that given the circumstances surrounding the breach and its seriousness, the continued prosecution offends the fundamental principles of justice that underlie the community’s sense of fair play and decency and therefore the only appropriate response is a stay.
Jurisdiction to provide a remedy for a breach of a Charter rights can be found in ss. 24 (1) and (2):
(1) 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.
(2) Where, in proceedings under subsection (1), a Court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
The Circumstances Giving Rise to the breach of Tran’s Charter Rights:
The following is a brief summary of the evidence and relevant rulings at the two-month voir dire relating to the breach of Tran’s Charter rights and his application for a stay of proceedings.
On March 27, 2003, on his counsel’s advice, Tran turned himself in to the Hamilton Police. They determined that this was a Peel matter and contacted the Peel Regional Police for Tran’s transfer. Tran was picked up by Officers Vander Wier and Conway.
According to Tran, during the drive to Peel, the officers tried to obtain a statement from him. Tran said that Conway told him on the drive that he “don’t want to hear me say that I don’t want to make a statement, or else it’s going to be the hard way…” However, Tran had been advised by his lawyer not to say anything and the officers’ efforts were unsuccessful.
Tran testified that upon arrival at the station, he was shoved and punched by Conway and Vander Wier. They then put him in an interview room that was not equipped with a video camera and demanded a statement. Tran continued to invoke his right to silence. Vander Wier punched him in the ribs and the jaw. Tran’s mouth bled profusely. Still Tran would not talk.
The officers gave up their quest for a statement and tried to conceal their misconduct. They attempted to clean up the blood in the interview room. They placed Tran in front of a video camera and tried (unsuccessfully) to get him to say that he had hit his chin on the table.
The officers explained Tran’s injuries to other officers by saying that he was wiggling his tooth and trying to “play it up”, and that he had been violent and uncooperative with the Hamilton police.
The extent of Tran’s injuries was not discovered until the next day when he was transferred to the Maplehurst Correctional Complex. Upon arrival, Tran was sent to the hospital where it was determined that his jaw was broken. On April 2, 2003, after Tran’s release on bail, he went to another hospital and was attended by an expert in facial injuries.
Tran’s jaw had been broken in two places. He had a right mandibular fracture and an interior fracture running between the central incisors. The doctor wired Tran’s mouth shut and provided follow-up treatment. The permanent consequences of the beating include that Tran now bites himself when he eats, has a sore jaw and loose teeth, and suffers from migraines.
Officers Conway and Vander Wier described things very differently. They denied the assault. They claimed to have left Tran alone in the interview room and when they returned, they found him on the floor, still handcuffed, with blood coming from his lower lip. Officer Conway testified that it looked like “he had bit his lip”, and that Tran explained his presence on the floor by saying “I don’t know, I guess I fell.” They put him on videotape to tell the truth about the source of his injuries. They asked “Have we treated you fairly?” Tran looked at the floor and refused to answer.
There was independent evidence on the voir dire that supported Tran’s version of events. The most significant evidence was the expert medical evidence that the injuries Tran suffered were consistent with a blow to the jaw; not with a fall.
The trial judge disbelieved the officers and found the evidence “overwhelming” that both officers had assaulted Tran and that specifically Officer Vander Wier had punched Tran and broken his jaw. In his ruling at the conclusion of the voir dire, he said:
“I do find based on the evidence, the overwhelming evidence that with respect to Mr. Tran, his section (7) and section (12) rights were breached. I do believe his evidence, which in my view is corroborated by the evidence of two doctors, both Dr. Freidlich and Dr. Allen…[I]t is my finding that the accused’s evidence was, in my view, substantiated by the independent evidence of the two doctors who testified, one called by the defence and the other by the Crown, in addition to the other
independent witnesses…and also with respect to all the witnesses, in my view, except for the evidence of Officer Vander Wier and Officer Conway. So on the totality of the evidence, I do find that there was a breach, which in effect was that Tran was assaulted by Officer Vander Wier and Officer Conway while he was in their custody. I also find that one of the assaults on Mr. Tran by Officer Vander Wier constituted a punch to his jaw which caused his jaw to be broken. I reject the evidence of both Officer Vander Wier and Officer Conway on this point,
i.e. the cause of the injury to Mr. Tran’s jaw.
The Court of Appeal said “The issue for me is what the remedy should be, and as indicated on the last occasion, what it entails is a balancing of the seriousness of the offence that Mr. Tran is charged with as against the seriousness of the breach.
The trial judge indicated that he was going to reserve the issue of remedy and that before the end of the trial he would release a “more extensive written judgment” with respect to the Charter application.
The trial proceeded. Despite the trial judge’s ruling that Vander Wier had brutally assaulted Tran and violated his Charter rights, Crown counsel invited Officer Vander Wier to sit at the counsel table as assisting officer. Defence counsel moved to have the officer precluded from participating in the trial. Counsel argued that in the light of the fact that Vander Wier had violently assaulted Tran, it would be inappropriate for the officer to be present in the courtroom and to have contact with witnesses who might feel under pressure to cooperate with the prosecution.
The trial judge agreed and ruled as follows:
I am going to make an order then that you get another officer to assist you, and I think that is in everyone’s best interest. It is also in Officer Vander Wier’s best interest and in the integrity of the prosecution of this case’s best interest. Immediately afterward, the trial judge included Officer Conway in the ruling.
The evidence demonstrates that despite this ruling, during the next few days of trial, Vander Wier continued to involve himself outside of the courtroom by working with witnesses in their preparation.
At the close of the Crown’s case, Tran renewed his application for a stay. Again, the trial judge deferred dealing with the issue of a response to the Charter violation.
At the conclusion of the trial, Tran was found guilty of conspiracy to commit robbery.
Prior to submissions as to sentence, the trial judge dealt with the Charter remedy. In very brief reasons, he reiterated his findings of Charter breaches but denied the remedy of a stay on the basis that a stay should only be granted in the “clearest of cases” and ruled that as the breach did not affect the evidence against Tran, and given the seriousness of the charges, a stay was not appropriate. Instead he ruled that the appropriate and just remedy would be to reduce by half the sentence he ultimately decided to impose in relation to the crime for which Tran had been convicted.
There is no challenge to the trial judge’s finding that Tran’s Charter rights were breached. The challenge is to the remedy.
The trial judge had few available options to respond to the Charter breaches. Realistically, there were only two – to reduce the sentence otherwise considered fit in the circumstances or to stay the proceedings. As indicated, the trial judge settled upon the former on the basis that no evidence was negatively affected, and, weighing the seriousness of the crime for which Tran was convicted against the seriousness of the breach, he found that this was not one of those “clearest of cases” where a stay should be granted.
Counsel for Tran argues that the state conduct was so egregious that a stay is the only appropriate and just remedy. The Crown submits that the trial judge took into account the apposite factors and that there is no reason to interfere with the exercise of his discretion to redress the abuse through sentence reduction.
While s.(24) provides the jurisdiction to remedy a Charter breach, it offers little by way of specific guidance. It merely provides that the court should grant a remedy that it considers “appropriate and just in the circumstances”. It has been left to the courts to develop guidelines pertaining to the applicability of particular remedies that avoid a rupture with past jurisprudence yet take into account the new framing of Canadian values with the advent of the Charter.
Stay of Proceedings:
The inherent jurisdiction of a superior court to stay proceedings as a measure of control over the judicial process was affirmed in R. v. Jewitt, [1985] 2 S.C.R. 128. The common law abuse of process doctrine is designed to protect the fundamental principles of justice that underlie the community’s sense of fair play and decency. In R. v. Mack, [1988] 2 S.C.R. 903, the Supreme Court confirmed that the judiciary should resort to a stay when necessary to communicate that it will not condone state conduct that transcends what our society perceives as acceptable. The objective of a stay as a remedy is to maintain public confidence in both the legal and the judicial process.
In O’Connor, L’Heureux-Dubé J., writing for herself, La Forest and Gonthier JJ., stated that a stay of proceedings is an exceptional remedy to be employed as a last resort, only after canvassing other available remedies. Of significance to this case, L’Heureux-Dubé J. noted at para. 73, that in Charter cases “concern for the individual rights of the accused may be accompanied by concerns about the integrity of the judicial system.” She added:
“In addition, there is a residual category of conduct caught by s.(7) of the Charter. This residual category does not relate to conduct affecting the fairness of the trial or impairing other procedural rights enumerated in the Charter, but instead addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process”.
In Tobiass, the Supreme Court, drawing from the reasoning in O’Connor, held that where the Crown has rendered the proceedings unfair or has acted in such a way as to adversely affect the integrity of the administration of justice, (the residual category) a stay is warranted. However, two criteria must be satisfied:
(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: para. 90.
The court went on to suggest that there may be a third criterion in cases where it is not clear that the abuse in question is sufficient to warrant a stay. In such cases, “it will be appropriate to balance the interests that would be served by the granting of a stay of proceedings against the interest that society has in having a final decision on the merits”: para. 92.
Significantly for the purposes of this case, at para. 96, the court held that a stay is appropriate not only where the abuse will be manifested in the future but also where it is so traumatic that to continue the prosecution would be unfair.
[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.
Finally, in Regan, a case involving prosecutorial abuse, the Supreme Court again considered the approach to cases in the residual category. Lebel J., for the majority, said at para. 55:
“As discussed above, most cases of abuse of process will cause prejudice by rendering the trial unfair. 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). Yet even in these cases, the important prospective nature of the stay as a remedy must still be satisfied: “[t]he mere fact that the state has treated an individual shabbily in the past is not enough to warrant a stay of proceedings” (Tobiass, at para. 91). When dealing with an abuse which falls into the residual category, generally speaking, a stay of proceedings is only appropriate when the abuse is likely to continue or be carried forward. Only in “exceptional”, “relatively very rare” cases will the past misconduct be “so egregious that the mere fact of going forward in the light of it will be offensive” (Tobiass, at para. 91).
Few cases appear in Canadian jurisprudence where a stay has been imposed as a remedy specifically for police brutality. But there have been some. I refer to cases such as R. v. Gladue, [1993] A.J. No. 1045 (Prov. Ct., Crim. Div.; R. v. Spannier, [1996] B.C.J. No. 2525 (B.C.S.C.), R. v. Murphy, [2001] Carswell Sask 613 (Prov. Ct.); R. v. Wiscombe, [2003] B.C.J. No. 2858 (Prov. Ct.); R. v. Markowska, [2004] O.J. No. 5133 (O.C.J.); R. v. Fryingpan, [2005] A.J. No. 102 (Prov. Ct., Crim. Div.); R. v. Cheddie, [2006] O.J. No. 1585 (S.C.J.); R. v. Merrick, 2007 CarswellOnt 3855 (O.C.J.).
These cases demonstrate that the determination of whether a sentence reduction or a stay of proceedings is the appropriate and just remedy in the circumstances will depend upon the application of the above principles to the facts of each case.
Selecting the Appropriate Remedy:
As was held in Nasogaluak, a sentence reduction may be appropriate in a case where it is felt that there is a need to take into account the “punishment” already meted out through the excessive use of police force: see also Glykis.
Here, while the Charter violations bear the “necessary connection to the sentencing exercise” as contemplated in Nasogaluak and Glykis, to open the door to a sentence reduction as a possible Charter remedy, the nature and degree of the state misconduct demand a remedy that goes beyond an adjustment to the sentence – a remedy that appropriately responds to the damage that misconduct such as this
does to the foundation of our system of justice.
This was not a case of excessive police force in the discharge of their duties. The two officers involved were taking him to the police station after he had turned himself in. No degree of force was warranted. In fact, if Tran’s version of the story is to be believed, the police beat him for invoking his Charter right to remain silent. As the Crown correctly points out, there is no specific finding to this effect. While that is true, regardless of whether the officers abused Tran to obtain a confession or for some other reason, the essential fact is that they beat him up.
While other specific findings of fact may have made the officers’ conduct worse, there is nothing that would make it better. Their conduct was despicable regardless of its motivation.
Furthermore, the gratuitous beating to which Tran was subjected, after turning himself in to the authorities, caused him permanent bodily harm. He was denied prompt medical attention. And the members of the Peel Regional Police involved in this abuse attempted to cover-up their shocking conduct by destroying evidence, lying to fellow officers and perjuring themselves before the court during the voir dire.
Even if the state misconduct had ended there, it would, in my view, certainly be open to a trial judge to exercise his or her discretion and grant a stay on the basis that proceeding with the prosecution in the face of it would undermine the public’s confidence in the administration of justice as contemplated in Tobiass.
But the state misconduct did not end there. The misconduct continued into the trial and, in my view, implicated trial fairness in the broad sense identified by Deschamps J., in her concurring reasons in R. v. Grant, [2009] 2 S.C.R. 353, at para. 207, where she wrote that “trial fairness corresponds to courtroom fairness.”
I refer to the Crown’s cavalier attitude toward the seriousness of the police misconduct and abuse to which Tran had been subjected demonstrated by Crown counsel’s decision to have Officer Vander Wier sit at the counsel table after the trial judge’s ruling on the voir dire. This decision suggested indifference to, if not approbation of, the police abuse and attempted cover-up. Matters were made even worse when the Crown allowed Officer Vander Wier to have a continuing
involvement with witnesses after the trial judge made an order excluding him from the counsel table.
The Crown’s conduct was evocative of an alignment with the police, notwithstanding the abuse. The Crown’s responsibility lies not in securing a conviction but in presenting the case for the prosecution while ensuring a fair trial for the accused: see Boucher v. The Queen, [1955] S.C.R. 16. Conduct suggesting that the Crown was condoning egregious police misconduct in violation of its duty of even-handedness would, in my view, cause a reasonable observer informed of the circumstances to question whether Tran could receive a fair trial. While the trial judge found that the police misconduct and Charter breaches did not affect the evidence, a reasonable person could well conclude that Vander Wier’s continued involvement with the case and his ongoing contact with key Crown witnesses could influence their testimony to Tran’s disadvantage.
To make matters still worse, there is no evidence of any effective response to the police brutality here.
The only action apparently taken against the police was the SIU investigation. It was closed on June 6, 2003. Defence counsel inquired into the reason for this, and was told that while the reason was ”confidential, the decision was justified”.
At the stay hearing, counsel for the SIU advised the court that the Director “closed the SIU file in the case having reached his conclusion that there were no reasonable grounds to believe that the officer had committed any criminal offence.” In oral argument, the panel was informed that despite the trial judge’s findings of serious police brutality, no further action has been taken against these officers. It is difficult to understand why or how those responsible for investigating the incident could continue to maintain that there are no reasonable grounds to proceed.
The message of Nasogaluak at para. 32 bears repeating: “Courts must guard against the illegitimate use of power by the police against members of our society, given its grave consequences.” It is not for this court in this appeal to concern itself with punishment for those who abused Tran. It is, however, for this court to affirm the fundamental values of our society and to respond to actions that undermine the integrity of the justice system. The failure of the SIU and other authorities to follow through with a meaningful investigation also militates in favour of a stay.
I agree with the submission made rhetorically by defence counsel: “If this conduct does not warrant a stay, what does?”
In my view, this is one of those “clearest of cases”, were the prosecution should be halted. This case involved horrendous police misconduct that breached Tran’s ss. (7) and (12) Charter rights, jeopardized the perception of trial fairness and brought the integrity of law enforcement into disrepute.
Therefore, the trial judge erred when he held that a stay should not be granted because the evidence against Tran was not affected and because the charges were serious. The jurisprudence is clear that a stay can be granted even where the evidence is not affected and that society’s interest in having a trial on the merits is only to be weighed in the balance “where uncertainty persists about whether the abuse is sufficient to warrant the drastic remedy of a stay:” Regan at para. 57. Here, there is no uncertainty. The abuse is serious – more than sufficiently serious to warrant a stay.
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.
Based on this analysis, I conclude that the affront to decency and fair play precludes any further investigation of the societal interest in the prosecution of the case. In my view, the prosecution must therefore be stayed.
In relation to Tran, I would allow the appeal and enter a stay of proceedings.
A recent Court of Appeal decision R. v. Tran et al ) R. v. Tran, 2010 ONCA 471, June 30, 2010, decision by Justices Gloria Epstein J.A., I agree Robert J. Sharpe J.A. & I agree Janet Simmons J.A. See Pages 19 to 39 inclusive.
Sections of the Charter in review:
III.1 The Relevant Charter Provisions
[48] Section (7) provides citizens with a right to be secure against arbitrary force, especially physical violence, by state actors.
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
[49] Section (12) deals with the degree to which the state may treat or punish an individual and provides that:
Page: 20
Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
[50] Jurisdiction to provide a remedy for a breach of a Charter rights can be found in ss. 24 (1) and (2):
(1) 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.
(2) Where, in proceedings under subsection (1), a Court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
The Court of Appeal’s decision brought the behaviour of Peel Regional Police Officers John Conway and Will Vander Wier towards Quang Hoang Tran into question and under scrutiny.
On March 27, 2003 these Officers took Mr. Tran into custody and transported him from the City of Hamilton to the Police Station in the Peel Region. While under the control, care and in the custody of these two Peel Regional Police Officers, Mr. Tran suffered a fracture jaw.
Mr. Tran lodged a complaint and the SIU did investigate this matter at the time and the Director of the SIU, decided that no reasonable grounds existed to charge the Police Officers.
Ian D. Scott was appointed as the Special Investigations Unit (SIU) Director effective October 16, 2008.
As a result of the Ontario Court of Appeal’s decision, R. v. Tran et al SIU Director Ian Scott re-examined the file and the transcripts from the pre-trial motion heard in 2006, and decided that he had reasonable and probable grounds to believe that Peel Regional Police Officer, Will Vander Wier committed a criminal offence against Mr. Tran with respect to the March 27, 2003 incident.
Peel Police Officer Will Vander Wier hasn`t been charged with “Perjury”, but has been charged with “Aggravated Assault” (see section 268 of the Criminal Code of Canada):
Aggravated Assault:
268 (1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.
Punishment:
(2) Every one who commits an aggravated assault is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen (14) years.
The Justice Prosecutions Branch of the Ministry of the Attorney General will be in charge of the Prosecution.
Peel Regional Police Officer Will Vander Wier will appear before the Ontario Court of Justice at 7755 Hurontario Street in Brampton on August 30, 2010.
The SIU is a civilian law enforcement agency, independent of the police, that investigates circumstances involving police and civilians which have resulted in serious injury, including sexual assault, or death.
The SIU reports to the Attorney General; however its investigations and decisions are made independent of government.
Is the Peel Regional Police Services Board “the Board” vicariously liable for the misconduct of Officer Will Vander Wier and Officer John Conway towards Quang Hoang Tran?
Is the Board vicariously liable for the wrong and resulting harm occasioned to Quang Hoang Tran while he was in the care of custody of Officers Vander Wier and Conway?
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