State Misconduct Did Not Cross Line

Misdoings by state authorities should preclude the prosecution of charges only in “exceptional” and “very rare” cases, the Supreme Court of Canada has held. The court made the comments last week in a case involving two Quebec men whose charges had been thrown out due to police and prosecutorial misconduct.

Antal Babos and Sergio Piccirilli had been charged with a raft of firearms, organized crime and illegal drug offences. The charges were laid following an investigation that started when Mr. Babos was pulled over in 2006 and a search of the trunk turned up a semi-automatic firearm. Mr. Piccirilli was a passenger in the car.
Client “gonna be hit by train”

They appealed to the Supreme Court after the stay (an order barring further prosecution) imposed at trial was overturned by the Quebec Court of Appeal, which had ordered a new trial.

At trial it emerged that a Crown prosecutor had threatened to lay more charges against them if they did not plead guilty, at one point telling defence counsel in Mr. Piccirilli’s presence: “If you client doesn’t settle, he’s gonna be hit by a train.” The trial judge found that the threats were “intolerable, unjustifiable, illegal and above all undemocratic.” Allowing the trial to continue in the face of these threats would be “shocking and outrageous.” The threats alone warranted a stay of the charges, the trial judge held.

The appropriateness of a stay was reinforced by the trial judge’s additional finding that a police witness had lied at the trial after colluding with another officer. The witness testified that Mr. Babos had opened the trunk himself, consenting to its search, despite earlier testimony to the contrary. Asked in cross-examination why he had changed his evidence, he said that before taking the stand the other officer had convinced him of the “true version” of events.

Not “abuse of the worst kind”

The Supreme Court, in a 6-1 ruling, disagreed with the trial judge’s conclusion that the charges should be stayed. Writing for the majority, Justice Michael Moldaver agreed the Crown’s threats to pursue more charges were “reprehensible.” But he found the trial judge’s observation that the threats amounted to “abuse of the worst kind” was exaggerated.

Justice Moldaver stated that the threats must be seen “in their context.” He noted that the threats were made more than a year before the trial began and that the appellants had made no complaint to a senior Crown or a judge. The appellants’ silence showed they did not take the threats seriously, he said. By the time the threats came to light, the delinquent Crown was off the file due to medical leave. The threats were not systemic and appeared to be isolated.

Society’s interest in a trial

Weighed against society’s interest in a trial, the prosecutor’s misconduct did not warrant a stay of proceedings, Justice Moldaver held. The trial judge had erred by failing to carry out this balancing exercise, he said.

Regarding the collusion between the police, Justice Moldaver said it was not as bad as the trial judge had made it out to be. The police did not try to “hide anything from the court” and any threat to the integrity of justice was “slight.” This misconduct could have been properly remedied by excluding the firearm that was found in the trunk from the evidence.

”Fairness above expedience”

In a dissent, Justice Rosalie Abella stated that the time that passed before the Crown’s threats surfaced did not diminish their impropriety. The passage of time “cannot retroactively cure intolerable state conduct,” she wrote.

She also disagreed with the majority that the trial judge should have weighed the prosecutor’s misconduct against society’s interest in a trial. Once the trial judge had concluded that the Crown’s conduct was such an “exceptional assault on the public’s sense of justice” it could not be condoned, a balancing exercise was unnecessary.

“Of course the public has an interest in trials on the merits, but it has an even greater interest in knowing that when the state is involved in proceedings, particularly those that can result in an individual’s loss of liberty, it will put fairness above expedience,” wrote Justice Abella.

“Justice is not only about results, it is about how those results are obtained. When a Crown threatens an accused with additional offences if he or she does not plead guilty, the public’s interest in the results of a trial must yield to the transcendent interest in protecting the public’s confidence in the integrity of the justice system.”