Police Brutality Causes Stay of Proceedings in R. v. Tran

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.”