R. v. Campbell

R. v. Campbell
Collection
Supreme Court Judgments
Date
1999-04-22
Report
[1999] 1 SCR 565
Case number
25780
Judges
Lamer, Antonio; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil
On appeal from
Ontario
Subjects
Criminal law
Evidence
Notes
SCC Case Information: 25780
Decision Content
R. v. Campbell, [1999] 1 S.C.R. 565
John Campbell and Salvatore Shirose Appellants
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Campbell
File No.: 25780.
1998: May 28; 1999: April 22.
Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.
on appeal from the court of appeal for ontario
Criminal law -- Abuse of process -- Stay of proceedings -- Reverse sting operation involving police “sale” of illegal drugs to drug organization executives -- Whether reverse sting operation abuse of process -- Narcotic Control Act, R.S.C., 1985, c. N-1, ss. 2 “traffic”, 4 -- Narcotic Control Regulations, C.R.C., c. 1041, s. 3(1) -- Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10, s. 37 .
Evidence -- Privilege -- Solicitor-client privilege -- Reverse sting operation involving police “sale” of illegal drugs to drug organization executives -- RCMP officer consulting Department of Justice lawyer as to legality of planned reverse sting operation -- Claim made that reverse sting operation predicated on its being considered legal -- Defence wanting to test disclosure of legal advice received by RCMP -- Whether communications between RCMP and Department of Justice lawyer should be disclosed.
The RCMP were alleged to have violated the Narcotic Control Act by selling a large quantity of hashish to senior “executives” in a drug trafficking organization as part of a reverse sting operation. The appellants, as purchasers, were charged with conspiracy to traffic in cannabis resin and conspiracy to possess cannabis resin for that purpose. The trial judge found the appellants guilty as charged but, before sentencing, heard their motion for a stay of any further steps in the proceeding. The appellants argued that the reverse sting constituted illegal police conduct which “shocks the conscience of the community and is so detrimental to the proper administration of justice that it warrants judicial intervention”. The stay was refused by the courts below.
As part of their case for a stay the appellants sought, but were denied, access to the legal advice provided to the police by the Department of Justice on which the police claimed to have placed good faith reliance. The Crown’s position implied that the RCMP acted in accordance with legal advice.
At issue here is the effect, in the context of the “war on drugs”, of alleged police illegality on the grant of a judicial stay of proceedings, and related issues regarding the solicitor-client privilege invoked by the RCMP and pre-trial disclosure of solicitor-client communications to which privilege has been waived.
Held: The appeal should be allowed in part.
At this stage of the proceedings, the door is finally and firmly closed against both appellants on the question of guilt or innocence notwithstanding the contention of one appellant that the conspiracy alleged by the Crown, and encompassed in the indictment, was a larger agreement than his demonstrated involvement. The appellant was clearly able to ascertain the conspiracy alleged against him from a plain reading of the indictment as was required by the jurisprudence.
The effect of police illegality on an application for a stay of proceedings depends very much on the facts of a particular case. This case-by-case approach is dictated by the requirement to balance factors which are specific to each fact situation. Here, the RCMP acted in a manner facially prohibited by the Narcotic Control Act. Their motive in doing so does not matter because, while motive may be relevant for some purposes, it is intent, not motive, that is an element of a full mens rea offence.
A police officer investigating a crime occupies a public office initially defined by the common law and subsequently set out in various statutes and is not acting as a government functionary or as an agent. Here, the only issue was the status of an RCMP officer in the course of a criminal investigation and in that regard the police are independent of the control of the executive government.
Even if the police could be considered agents of the Crown for some purposes, and even if the Crown itself were not bound by the Narcotic Control Act, in this case the police stepped outside the lawful ambit of their agency, and whatever immunity was associated with that agency was lost. Parliament made it clear that the RCMP must act “in accordance with the law” and that illegality by the RCMP is neither part of any valid public purpose nor necessarily “incidental” to its achievement. If some form of public interest immunity is to be extended to the police to assist in the “war on drugs”, it should be left to Parliament to delineate the nature and scope of the immunity and the circumstances in which it is available.
Even if it should turn out here that the police acted contrary to the legal advice provided by the Department of Justice, there would still be no right to an automatic stay. The trial judge would still have to consider any other information or explanatory circumstances that emerge during the inquiry into whether the police or prosecutorial conduct “shocks the conscience of the community”. A police force that chooses to operate outside the law is not the same thing as a police force that made an honest mistake on the basis of erroneous advice. There was no reason to think the RCMP ignored the advice it was given, but as the RCMP did make an issue of the legal advice it received in response to the stay applications, the appellants were entitled to have the bottom line of that advice corroborated.
The RCMP must be able to obtain professional legal advice in connection with criminal investigations without the chilling effect of potential disclosure of their confidences in subsequent proceedings. Here, the officer’s consultation with the Department of Justice lawyer fell squarely within this functional definition, and the fact that the lawyer worked for an “in-house” government legal service did not affect the creation or character of the privilege. Whether or not solicitor-client privilege attaches in any of these situations depends on the nature of the relationship, the subject matter of the advice and the circumstances in which it is sought and rendered.
An exception to the principle of confidentiality of solicitor-client communications exists where those communications are criminal or else made with a view to obtaining legal advice to facilitate the commission of a crime. Here, the officer sought advice as to whether or not the operation he had in mind was lawful. The privilege is not automatically destroyed if the transaction turns out to be illegal.
Destruction of the solicitor-client privilege takes more than evidence of the existence of a crime and proof of an anterior consultation with a lawyer. There must be something to suggest that the advice facilitated the crime or that the lawyer otherwise became a “dupe or conspirator”. The RCMP, by adopting the position that the decision to proceed with the reverse sting had been taken with the participation and agreement of the Department of Justice, belatedly brought itself within the “future crimes” exception and put in question the continued existence of its privilege.
Another exception to the rule of confidentiality of solicitor-client privilege may arise where adherence to that rule would have the effect of preventing the accused from making full answer and defence. Although the entire jeopardy of the appellants remained an open issue until disposition of the stay application, the appellants were not providing “full answer and defence” to the stay application. They were the moving parties of an application being defended by the Crown. The appellants’ initiative in launching a stay application does not, of itself, authorize a fishing expedition into solicitor-client communications to which the Crown is a party.
The RCMP put the officer’s good faith belief in the legality of the reverse sting in issue, and asserted its reliance upon his consultations with the Department of Justice to buttress that position. The RCMP thus waived the right to shelter the contents of that advice behind solicitor-client privilege. It is not always necessary for the client actually to disclose part of the contents of the advice in order to waive privilege to the relevant communications of which it forms a part. It was sufficient in this case for the RCMP to support its good faith argument by undisclosed advice from legal counsel in circumstances where, as here, the existence or non-existence of the asserted good faith depended on the content of that legal advice. Non-disclosure of information clearly relevant to the good faith reliance issue here cannot properly be disposed of by adverse inferences. The appellants were entitled to disclosure of legal advice with respect to: (1) the legality of the police posing as sellers of drugs to persons believed to be distributors of drugs; (2) the legality of the police offering drugs for sale to persons believed to be distributors of drugs; and (3) the possible consequences to the members of the RCMP who engaged in one or both of the above, including the likelihood of prosecution. If there is a dispute concerning the adequacy of disclosure, the disputed documents or information should be provided by the Crown to the trial judge for an initial determination whether this direction has been complied with. The trial judge should then determine what, if any, additional disclosure should be made to the appellants.
Cases Cited
Applied: R. v. Mack, [1988] 2 S.C.R. 903; R. v. Eldorado Nuclear Ltd., [1983] 2 S.C.R. 551; R. v. Douglas, [1991] 1 S.C.R. 301; R. v. Jewitt, [1985] 2 S.C.R. 128; Canadian Broadcasting Corp. v. The Queen, [1983] 1 S.C.R. 339; R. v. Pearson, [1998] 3 S.C.R. 620; disapproved: Rutherford v. Swanson, [1993] 6 W.W.R. 126; Re Girouard and the Queen (1982), 68 C.C.C. (2d) 261; considered: Rogers v. Bank of Montreal, [1985] 4 W.W.R. 508; referred to: R. v. Power, [1994] 1 S.C.R. 601; R. v. Lore, Sup. Ct., No. 500-01-013926-891, March 8, 1991; R. v. Conway, [1989] 1 S.C.R. 1659; R. v. Showman, [1988] 2 S.C.R. 893; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; Roncarelli v. Duplessis, [1959] S.C.R. 121; Attorney General of Canada v. Lavell, [1974] S.C.R. 1349; R. v. Keyowski, [1988] 1 S.C.R. 657; R. v. Scott, [1990] 3 S.C.R. 979; R. v. T. (V.), [1992] 1 S.C.R. 749; R. v. Potvin, [1993] 2 S.C.R. 880; R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. Bond (1993), 135 A.R. 329, leave to appeal refused, [1993] 3 S.C.R. v; Lewis v. The Queen, [1979] 2 S.C.R. 821; R. v. Mancuso (1989), 51 C.C.C. (3d) 380, leave to appeal refused, [1990] 2 S.C.R. viii; R. v. Mamchur, [1978] 4 W.W.R. 481; R. v. Sherman (1977), 36 C.C.C. (2d) 207; McCleave v. City of Moncton (1902), 32 S.C.R. 106; Enever v. The King (1906), 3 C.L.R. 969; Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; Ridge v. Baldwin, [1964] A.C. 40; Attorney-General for New South Wales v. Perpetual Trustee Co., [1955] A.C. 457; R. v. Metropolitan Police Comr., Ex parte Blackburn, [1968] 1 All E.R. 763; R. v. Creswell, [1998] B.C.J. No. 1090 (QL); Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1989), 58 D.L.R. (4th) 396, aff’d (1990), 74 O.R. (2d) 225; Perrier v. Sorgat (1979), 25 O.R. (2d) 645; R. v. Salvador (1981), 59 C.C.C. (2d) 521; In re Neagle, 135 U.S. 1 (1890); Baucom v. Martin, 677 F.2d 1346 (1982); Perka v. The Queen, [1984] 2 S.C.R. 232; R. v. Lore (1997), 116 C.C.C. (3d) 255; R. v. Matthiessen (1995), 172 A.R. 196; R. v. Xenos (1991), 70 C.C.C. (3d) 362; R. v. Gruenke, [1991] 3 S.C.R. 263; Smith v. Jones, [1999] 1 S.C.R. 455; Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860; Upjohn Co. v. United States, 449 U.S. 383 (1981); Minter v. Priest, [1929] 1 K.B. 655; Crompton (Alfred) Amusement Machines Ltd. v. Comrs. of Customs and Excise (No. 2), [1972] 2 All E.R. 353; In re Lindsey, 158 F.3d 1263 (1998); R. v. Ladouceur, [1992] B.C.J. No. 2854 (QL); Solosky v. The Queen, [1980] 1 S.C.R. 821; R. v. Cox and Railton (1884), 14 Q.B.D. 153; O’Rourke v. Darbishire, [1920] A.C. 581; State ex rel. North Pacific Lumber Co. v. Unis, 579 P.2d 1291; R. v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. Dunbar (1982), 68 C.C.C. (2d) 13; R. v. Gray (1992), 74 C.C.C. (3d) 267; R. v. Seaboyer, [1991] 2 S.C.R. 577; A. (L.L.) v. B. (A.), [1995] 4 S.C.R. 536; United States v. Exxon Corp., 94 F.R.D. 246 (1981).
Statutes and Regulations Cited
Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 8 .
Criminal Code, R.S.C., 1985, c. C-46, ss. 462.37 [ad. R.S.C., 1985, c. 42 (4th Supp.), s. 2], 686(1)(b)(iii), (2), (8).
Crown Liability and Proceedings Act, R.S.C., 1985 c. C-50, s. 36 [rep. S.C. 1990, c. 8, s. 32].
Department of Justice Act, R.S.C., 1985, c. J-2, s. 4 .
Department of the Solicitor General Act, R.S.C., 1985, c. S-13 .
Interpretation Act, R.S.C., 1985, c. I-21, s. 10 .
Narcotic Control Act, R.S.C., 1985, c. N-1, ss. 2 “traffic”, 4.
Narcotic Control Regulations, C.R.C., c. 1041, s. 3(1).
Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10, ss. 5 [am. R.S.C., 1985, c. 8 (2nd Supp.), s. 2], 37 [rep. ibid., s. 16 ].
Authors Cited
Choo, Andrew L.-T. Abuse of Process and Judicial Stays of Criminal Proceedings. Oxford: Clarendon Press, 1993.
Dicey, A. V. Introduction to the Study of the Law of the Constitution, 8th ed. London: MacMillan & Co., 1927.
Greaney, Gail M. Note, “Crossing the Constitutional Line: Due Process and the Law Enforcement Justification” (1992) 67 Notre Dame L. Rev. 745.
Halsbury’s Laws of England, vol. 36, 4th ed. London: Butterworths, 1981.
Restatement of the Law Third, The Law Governing Lawyers, § 124 (Proposed Final Draft No. 1, 1996).
Scott, F. R. Civil Liberties & Canadian Federalism. The Plaunt Lectures, Carleton University, 1959. Toronto: University of Toronto Press, 1959.
“The Future Crime or Tort Exception to Communications Privileges” (1964), 77 Harv. L. Rev. 730.
Wigmore, John Henry. Evidence in Trials at Common Law, vol. 8. Revised by John T. McNaughton. Boston: Little, Brown & Co., 1961.
APPEAL from a judgment of the Ontario Court of Appeal (1997), 32 O.R. (3d) 181, 96 O.A.C. 372, 115 C.C.C (3d) 310, 5 C.R. (5th) 391, [1997] O.J. No. 120 (QL), affirming a judgment of the Ontario Court (General Division), [1995] O.J. No. 431 (QL) denying the appellants’ application for a stay of proceedings. Appeal allowed in part.
Alan D. Gold, for the appellant John Campbell.
Irwin Koziebrocki, for the appellant Salvatore Shirose.
Robert W. Hubbard, Fergus C. O’Donnell and John North, for the respondent.
The judgment of the Court was delivered by
//Binnie J.//
1 Binnie J. – In this appeal the Court is asked to consider some implications of the constitutional principle that everyone from the highest officers of the state to the constable on the beat is subject to the ordinary law of the land. Here the police were alleged to have violated the Narcotic Control Act, R.S.C., 1985, c. N-1, by selling a large quantity of hashish (cannabis resin) to senior “executives” in a drug trafficking organization as part of what counsel called a “reverse sting” operation. The appellants, as purchasers, were charged with conspiracy to traffic in cannabis resin and conspiracy to possess cannabis resin for that purpose. The trial judge found the appellants guilty as charged but, before sentencing, heard the appellants’ motion for a stay of any further steps in the proceeding. The appellants argued that the reverse sting constituted illegal police conduct which “shocks the conscience of the community and is so detrimental to the proper administration of justice that it warrants judicial intervention” (see R. v. Power, [1994] 1 S.C.R. 601, at p. 615). The stay was refused by the courts below.
2 As part of their case for a stay the appellants sought, but were denied, access to the legal advice provided to the police by the Department of Justice on which the police claimed to have placed good faith reliance. The Crown indicated that the undisclosed advice assured the police, rightly or wrongly, that sale of cannabis resin in the circumstances of a reverse sting was lawful. The appellants argue that the truth of this assertion can only be tested by a review of the otherwise privileged communications.
3 We are therefore required to consider in the context of the “war on drugs”, the effect of alleged police illegality on the grant of a judicial stay of proceedings, and related issues regarding the solicitor-client privilege invoked by the RCMP and pre-trial disclosure of solicitor-client communications to which privilege has been waived.
Facts
4 In the autumn of 1991, the RCMP initiated a reverse sting operation involving undercover officers posing as large-scale hashish vendors. This operation was undertaken after Corporal Richard Reynolds of the RCMP became aware of the decision of the Quebec Superior Court in R. v. Lore (an unreported decision of Pinard J., March 8, 1991, No. 500-01-013926-891) which, in Cpl. Reynolds’ view, gave implicit approval to a reverse sting operation in which police offered to sell narcotics to suspected drug traffickers. Cpl. Reynolds contacted Mr. James Leising, an experienced senior lawyer employed by the Department of Justice in Toronto, to obtain professional advice as to the legality of a reverse sting operation. Seven or eight meetings were held between Cpl. Reynolds and the Department of Justice lawyer in relation to the proposed operation. In September of 1991, approval by senior RCMP officers was given to initiate the reverse sting. Using the help of a police informant, the police contacted two groups of potential purchasers through the appellant Shirose. Negotiations with these groups included showing the hashish to prospective purchasers. However, the RCMP was careful not to provide any samples, despite requests to do so. The hashish remained under the control of the RCMP at all times. The appellant Campbell eventually participated in the negotiations as a financier for one of the two groups and in January 1992, the appellant Campbell, with the help of the appellant Shirose, agreed to pay $270,000 for 50 kilograms of cannabis resin. The retail value of these drugs at street level, as found by the trial judge, was close to $1 million. Instead of receiving the expected 50 kilograms of cannabis resin in exchange for payment, however, the appellants were arrested and charged with conspiracy to traffic in cannabis resin and conspiracy to possess cannabis resin for the purpose of trafficking.
5 In advance of the trial, to support their submission that if convicted, the proceedings should be stayed, the appellants sought to subpoena Mr. Leising from the Department of Justice to testify about the communications that had occurred with Cpl. Reynolds with respect to the legality of the reverse sting operation. The trial judge quashed the subpoena on the grounds that the communications were protected by solicitor-client privilege and did not fall within one of the recognized exceptions. Subsequently, during the application to stay the proceedings, counsel for the appellants sought to examine Cpl. Reynolds on the content of his communications with the Department of Justice. Again the trial judge upheld the assertion of solicitor-client privilege and denied the appellants’ application to force disclosure of these communications. Based on the admissible evidence, the trial judge then dismissed the stay of proceedings application. The appellant Shirose was sentenced to six years in penitentiary. The appellant Campbell was sentenced to nine years in penitentiary, plus forfeiture of the purchase price paid to the police. The Court of Appeal dismissed the appellants’ appeal except to remit the issue of forfeiture to the trial judge to await an application by the Attorney General, if he sees fit to make it, for forfeiture of the purchase price under s. 462.37 of the Criminal Code, R.S.C., 1985, c. C-46 .
Evidence of Police “Good Faith”
6 On the return of the stay motion, the Crown set out to establish that the police had at all stages acted in good faith and in the belief that the reverse sting was legal. At the application for a stay of proceedings hearing, counsel for the Crown questioned Cpl. Reynolds as follows:
Q. Was your project [the reverse sting operation] tailored on the outlines of the project or [sic] the Lore case?
A. Yes, sir.
Q. And it was your understanding as a result of the Lore case that that was lawful behaviour?
A. Yes, sir.
It emerged that Cpl. Reynolds had consulted the Department of Justice about the legality of the reverse sting. Appellants’ counsel pursued this issue with Cpl. Reynolds as follows:
Q. So to return then, based upon this [Lore] decision coming to your attention, did you also obtain any other advice regarding any concerns you might have had about this type of an operation?
A. Sought legal advice.
Q. And from whom did you seek legal advice?
A. The Department of Justice, Toronto.
Q. And was it one individual or more than one individual?
A. One individual.
Q. And who was that?
A. Mr. Leising.
The precise purpose of obtaining this legal advice came out under further questioning from appellants’ counsel, as follows:
Q. Now that you know what I am reading from sir, what I asked was, “The issues for which advice was sought concerned the propriety of the police posing as sellers of drugs to persons believed to be distributors of drugs.” Is that accurate?
A. That’s correct.
Q. “The propriety of the police offering hashish for sale to persons believed to be distributors of hashish.” Is that correct?
A. Yes, sir.
Q. “The release of a sample of hashish to certain of those persons.” Is that correct?
A. Yes, sir.
Q. “The possible consequences to the members who engaged in such conduct.” Is that correct?
A. Yes, sir.
...
Q. When you went to Mr. Leising, were you concerned about any of the members of your force who did engage in this operation, being prosecuted?
A. That would have been one of the issues.
Q. And then to return to Officer Plomp’s certificate, the last thing he said is, “and the issue of entrapment.” Was that one of the items on the agenda with Mr. Leising?
A. Yes, sir.
The Crown successfully objected to counsel for the appellants questioning Cpl. Reynolds with respect to the actual advice given because of the claim of solicitor-client privilege. The appellants’ counsel then attempted to use this objection to narrow the potential ambit of the Crown’s “good faith” argument:
So it is my respectful submission that the Crown certainly cannot argue that the police acted in good faith because they acted on legal advice, because we don’t know what legal advice they got. We don’t know what qualifications or conditions were attached. We don’t know whether they were told, ‘This is going to be illegal and you’re on your own. You’re at risk.’ We don’t know if they were told, ‘It’s illegal but don’t worry, we’ll never prosecute you.’
So, with respect, I certainly don’t want to hear the argument that, ‘Oh well, the police acted in good faith because they acted on legal advice.’ because then I would like to know what that advice was so I can see whether that’s true or not. So in my submission, if they are going to rely on solicitor/client privilege, then that issue has to drop completely out of the case.
THE COURT: Well I am sure the Crown will have something to say about that.
MR. GOLD: Well my suspicion is that they probably won’t because they might be aware that that might open the door to further proceedings to an argument for disclosure of it, but I guess I will have to wait and see Your Honour. [Emphasis added.]
Judgments
Ontario Court (General Division), [1995] O.J. No. 431 (QL)
Ruling on Application for Stay of Proceedings
7 Caswell J. divided her analysis of the stay application into two parts. In the first part, she dealt with the issue of entrapment as a sub-issue of the abuse of process doctrine. In the second part, she dealt with prosecutorial conduct more generally as giving rise to potential abuses of process.
8 In discussing entrapment, Caswell J. considered the judgment of this Court in R. v. Mack, [1988] 2 S.C.R. 903, in which Lamer J. (as he then was) pointed out that a stay of proceedings is not to be considered as a method of disciplining the police or the prosecution, but rather, that the Court is concerned with the larger issue of maintenance of public confidence in the judicial process. The trial judge noted that entrapment may be established where (a) the authorities provide an opportunity to persons to commit an offence without reasonable suspicion or acting mala fides, or (b) having a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing a mere opportunity and actually induce the commission of an offence. Caswell J. held that the police had acted with reasonable suspicion with respect to both appellants. She noted that the appellant Shirose had been involved in a search for a large-scale supplier of hashish long before the RCMP began its operation. She considered that the appellant Campbell volunteered himself “out of the woodwork” and joined the conspiracy completely on his own initiative. As to the allegation that the RCMP had induced the commission of the offences, Caswell J. concluded, based on the criteria set out in Mack, that the police conduct had not induced the offence or otherwise gone beyond “the limits that society deems proper”. Accordingly, there was no entrapment on the facts of this case.
9 In considering the broader aspects of the doctrine of abuse of process, Caswell J. concluded that it was not necessary for her to decide whether or not the reverse sting operation was illegal. Instead, she posed the question whether this is one of the “clearest cases” in which the proceedings are so overwhelmingly unfair that to proceed would be contrary to the interests of justice. After reviewing various cases involving police conduct that did not result in stays of proceedings, and measuring the conduct of the police and Crown counsel in this case against the criteria set out in Mack, supra, R. v. Conway, [1989] 1 S.C.R. 1659, R. v. Showman, [1988] 2 S.C.R. 893, and Power, supra, Caswell J. concluded that it was in the interest of justice to proceed to enter the conviction and impose sentence. In her view, society would not be offended by the acts of the prosecution. Society would be offended by the imposition of a stay.
Court of Appeal for Ontario (1997), 32 O.R. (3d) 181
10 Carthy J.A. disagreed with the conclusion of the trial judge that it was not necessary to determine the legality of the police conduct. Also basing himself on the judgment of Lamer J. in Mack, supra, Carthy J.A. considered that police illegality was an important factor to be weighed in evaluating an accused’s claim of abuse of process and, indeed, he considered that illegality may in certain instances be determinative.
11 After setting out the relevant portions of the Narcotic Control Act, Carthy J.A. noted that the Narcotic Control Regulations, C.R.C., c. 1041, s. 3(1), saves the police harmless where possession of a narcotic results from sting operations. There is no corresponding regulation giving the police immunity when they are offering to sell a narcotic. Carthy J.A. concluded that the RCMP’s offer to sell a narcotic to the appellants constituted trafficking, and that it was irrelevant that the RCMP had no intention of completing the sale. Therefore, on the face of the statute, the conduct of the RCMP in this case was, in Carthy J.A.’s view, illegal.
12 Carthy J.A. then considered the Crown’s arguments about extending public interest immunity to the RCMP and concluded that the Crown does not exercise sufficient de jure control over the activities of RCMP members to justify such immunity from prosecution for breach of the criminal law as it relates to narcotics. As to the related concept of immunity derived from Crown agency, Carthy J.A. considered that, while members of the RCMP are entitled to seek out criminality through a variety of different methods, this mandate does not extend to methods that would be illegal if done by any other person. Carthy J.A. examined R. v. Eldorado Nuclear Ltd., [1983] 2 S.C.R. 551. When Crown agents act within the scope of the public purposes they are statutorily empowered to pursue, they may be entitled to claim Crown immunity, he held, but in this case the RCMP officers had stepped outside the scope of any agency relationship that may have existed.
13 Carthy J.A. agreed with the trial judge that there was no entrapment. He went on, however, to consider whether the RCMP conduct amounted to an abuse of process for reasons other than entrapment. He noted that the illegal conduct of the RCMP did not involve a trifling amount of drugs. Further, he noted that the illegal conduct was authorized at all levels of the RCMP. He was prepared to infer that the reverse sting was considered lawful by the Department of Justice, and he treated this as an aggravating factor because “the full might of the Crown resources were set upon the task of illegal conduct” (p. 197). Carthy J.A. noted an alternate possibility that the police were acting on their own as “mavericks” contrary to legal advice. While he doubted that this was in fact the case, Carthy J.A. at p. 197 considered this would be
. . . an aggravating factor against the Crown of about equal weight to the first assumption [i.e., of equal weight to the assumption that the RCMP did follow the legal advice].
14 A third possibility, he considered, was that the RCMP had been advised that the reverse sting would be legal provided no drugs were passed to the appellants as part of a “sale”. If so, the RCMP had complied with the advice rendered, even though failure to complete the transaction did not change its illegality. Carthy J.A. recognized that all three scenarios were necessarily speculative on his part. He said, at p. 200, that had he been the trial judge he “would have directed production of the documents and evidence of the Crown law officer”. However, while “[i]t obviously would have been better if the [Department of Justice] information had been conveyed [to the appellants] at trial” (p. 200), no miscarriage of justice occurred because even assuming “the worst” against the Crown no stay could be justified in the circumstances of this case. It was not one of the clearest cases, nor did it involve conduct that would cause the public conscience to be shocked if the convictions were permitted to stand. He concluded, at pp. 198-99, that “[h]aving condemned the actions of the R.C.M.P. and having held up [his] hand against repetition, it would, in [his] view, be sanctimonious to say that the rule of law ha[d] been eroded by these convictions and sentences”. The Court of Appeal dismissed the other grounds of appeal, save for the technical variation in the order for forfeiture previously mentioned.
Analysis
Reverse Sting Operations
15 There is a general recognition that “[i]f the struggle against crime is to be won, the ingenuity of criminals must be matched by that of the police” (Mack, supra, per Lamer J., at p. 916). In a “sting” operation, the police pose as willing purchasers of narcotics to obtain evidence against traffickers. The Narcotic Control Regulations accept the legitimacy of this technique by deeming police possession in these circumstances to be authorized under that Act. The problem is that traffickers caught by ordinary “sting” purchases are generally minor street level personnel whose conviction has little deterrence effect on the day-to-day operations of the drug organization as a whole. As pointed out by Cpl. Reynolds in this case, the “executives” up the chain of command of large-scale drug organizations are able to insulate themselves from sting operations. The street level pushers apprehended by the police are easily sacrificed and easily replaced. For the purpose of more effective law enforcement, the police therefore devised what counsel referred to as “reverse sting” operations whereby the police became vendors rather than purchasers, i.e., the roles of vendor and purchaser were reversed within the sting operation. Because of the amount and value of drugs involved, reverse sting operations brought the police “vendors” into direct contact with the executive purchasers in the large drug organizations. It has proved to be an effective technique. It also, however, brought the police into conflict with the very law that they were attempting to enforce. Neither the Narcotic Control Act nor its regulations authorize the police to sell drugs. The appellants, as stated, purport to be shocked at the illegality of police conduct, and ask the Court to hold that the conduct so violates the community’s fundamental sense of decency and values that it should result in a stay of proceedings against them.
Guilt or Innocence of the Appellants
16 This appeal was directed almost entirely at the conduct of the abuse of process application following the finding of the trial judge that the appellants were guilty as charged. The only surviving issue on the issue of guilt or innocence is the contention of the appellant Campbell that the conspiracy alleged by the Crown, and encompassed in the indictment, was a larger agreement, different in time and place, than his demonstrated involvement. The counts in the indictment span the period November 1, 1990 to January 15, 1992, whereas it appears Campbell first became involved on November 21, 1991. The counts in the indictment refer to activity in Windsor, London, Mississauga, Toronto, and elsewhere in Ontario, whereas Campbell’s demonstrated involvement took place only in Mississauga. Campbell further contends that the evidence shows that he and Shirose were not related co-conspirators, because they were members of separate and distinct groups, acting without a common purpose or enterprise. I think the Crown is correct that the decision of this Court in R. v. Douglas, [1991] 1 S.C.R. 301, is fatal to this objection. After noting at pp. 315-16 that “[w]hile the offence of conspiracy is inherently difficult to frame, the indictment must be set forth with such reasonable precision as to inform the accused of the fundamental nature of the conspiracy charged”. Cory J. nevertheless concluded, at p. 322, that:
. . . it is not incumbent upon the Crown to prove the involvement of every member alleged to be part of the conspiracy. . . . If the conspiracy proven includes fewer members than the number of accused or extends over only part of the period alleged, then the conspiracy proven can still be said to be the same conspiracy as that charged in the indictment. In order to find that a specific conspiracy lies within the scope of the indictment, it is sufficient if the evidence adduced demonstrates that the conspiracy proven included some of the accused, establishes that it occurred at some time within the time frame alleged in the indictment, and had as its object the type of crime alleged.
The appellant was clearly able to ascertain the conspiracy alleged against him from a plain reading of the indictment and, in accordance with this Court’s decision in Douglas, this ground of appeal must be dismissed.
17 For reasons to be discussed, it is important to note that, at this stage of the proceedings, the door is finally and firmly closed against both appellants on the question of guilt or innocence. The remaining issue is whether, notwithstanding the guilt of the appellants, the proceedings against them should be stayed because of abuse of process.
The Rule of Law
18 It is one of the proud accomplishments of the common law that everybody is subject to the ordinary law of the land regardless of public prominence or governmental status. As we explained in Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at p. 240, the rule of law is one of the “fundamental and organizing principles of the Constitution”, and at p. 258, it was further emphasized that a crucial element of the rule of law is that “[t]here is ... one law for all”. Thus a provincial premier was held to have no immunity against a claim in damages when he caused injury to a private citizen through wrongful interference with the exercise of statutory powers by a provincial liquor commission: Roncarelli v. Duplessis, [1959] S.C.R. 121. Professor F. R. Scott, who was counsel for the successful plaintiff, Roncarelli, in that case, subsequently observed in Civil Liberties & Canadian Federalism (1959), at p. 48:
. . . it is always a triumph for the law to show that it is applied equally to all without fear or favour. This is what we mean when we say that all are equal before the law.
The principle was famously enunciated by Professor A. V. Dicey in Introduction to the Study of the Law of the Constitution (8th ed. 1927) as the second aspect of the “rule of law”. This principle was noted with approval in Attorney General of Canada v. Lavell, [1974] S.C.R. 1349, at p. 1366:
It means again equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary courts; the ‘rule of law’ in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary courts.
19 The argument of the appellants is that not only are the police subject to prosecution for their participation in the very transaction that gave rise to the charges on which the appellants have been found guilty, but (more importantly from their perspective) police illegality should deprive the state of the benefit of a conviction against them. It is relevant that in s. 37 of the Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10 , Parliament has specifically imposed on RCMP officers the duty to stay within the law, as follows:
37. It is incumbent on every member
(a) to respect the rights of all persons;
(b) to maintain the integrity of the law, law enforcement and the administration of justice;
(c) to perform the member’s duties promptly, impartially and diligently, in accordance with the law and without abusing the member’s authority;
...
(e) to ensure that any improper or unlawful conduct of any member is not concealed or permitted to continue.... [Emphasis added.]
It is recognized, of course, that police officers gain nothing personally from conduct committed in good faith efforts to suppress crime that incidentally violates the law the police are attempting to enforce. Nevertheless, the seeming paradox of breaking a law in order to better enforce it has important ramifications for the rule of law.
Test for Abuse of Process
20 In R. v. Jewitt, [1985] 2 S.C.R. 128, the Court set down what has since become the standard formulation of the test for abuse of process, per Dickson C.J., at pp. 136-37:
I would adopt the conclusion of the Ontario Court of Appeal in R. v. Young [(1984), 40 C.R. (3d) 289], and affirm that “there is a residual discretion in a trial court judge to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community’s sense of fair play and decency and to prevent the abuse of a court’s process through oppressive or vexatious proceedings”. I would also adopt the caveat added by the Court in Young