Ontario Court of Appeal stays serious charges because police assaulted accused

In R. v. Tran (30 June 2010) (Ont. C.A.), the Ontario Court of Appeal, in a strongly worded decision, criticized the police for violently assaulting the accused, the province's Special Investigation Unit (SIU) for concluding that there were not reasonable grounds for charges and the Crown Attorney who allowed the officers to remain involved in the case and to sit next to the Crown during the trial. The Court upheld the trial judge's decision to stay the charges under section 24(1) of the Charter. Of particular significance is the Court's reliance on the absence of accountability evidenced by the failure of the SIU to act in concluding that a stay of proceedings was appropriate.

Justice Epstein, for the Court, held:

"[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 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.

[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."