R. v. Tran, 2010 ONCA 471 – The first post-Nasogaluak consideration of the remedy for police brutality. A stay is granted.

In R. v. Tran, 2010 ONCA 471 (Ont. C.A.) the appellant had turned himself into the police for charges of robbery and conspiracy to commit robbery. He testified that when he asserted his right to silence to the investigating officers they broke his jaw. The police testified that the appellant fell to the floor in an interview room which did not have video tape facilities. The trial judge found a breach of the appellant’s rights as a result of the abuse but would not grant a stay, instead reducing his sentence by one half, after he was found guilty. The Court of Appeal overturned the conviction and stayed the charge, finding that the police brutality, and Crown conduct in failing to be impartial about the misconduct, warranted a stay of proceedings. Justice Epstein wrote for the Court:

94. 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.

95. 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.

96. 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.

97. 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 (S.C.C.), at para. 207, where she wrote that “trial fairness corresponds to courtroom fairness.”

98. 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.

99. 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 R. v. Boucher (1954), [1955] S.C.R. 16 (S.C.C.). 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.

100. To make matters still worse, there is no evidence of any effective response to the police brutality here.

101. 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.

102. 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.

Accordingly, the appellant’s conviction for conspiracy to commit robbery was stayed by the Court of Appeal.