R. v. Regan

R. v. Regan
Collection
Supreme Court Judgments
Date
2002-02-14
Neutral citation
2002 SCC 12
Report
[2002] 1 SCR 297
Case number
27541
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
Nova Scotia
Subjects
Criminal law
Notes
SCC Case Information: 27541
Decision Content
R. v. Regan, [2002] 1 S.C.R. 297, 2002 SCC 12
Gerald Augustine Regan Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada,
the Attorney General of Quebec and
the Attorney General for New Brunswick Interveners
Indexed as: R. v. Regan
Neutral citation: 2002 SCC 12.
File No.: 27541.
2001: March 15; 2002: February 14.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for nova scotia
Criminal law – Remedies – Abuse of process – Stay of proceedings – Accused charged with sex‑related offences – Police identifying accused as suspect before charges laid – Crown engaging in “judge shopping” and conducting pre‑charge interviews of complainants – Trial judge staying some of charges – Court of Appeal overturning stay – Whether conduct of Crown and police amounted to abuse of process – Whether partial stay of proceedings warranted – Whether Court of Appeal entitled to interfere with trial judge’s decision to grant partial stay.
During the police investigation into allegations that the accused, a former Premier of Nova Scotia, had committed numerous sexual offences against a variety of young women who had worked for or with him, a police officer confirmed to a reporter that the accused was under investigation, in violation of police policy to remain silent about individual suspects until charges are laid. At the conclusion of the investigation, a report was submitted to the Director of Public Prosecutions (“DPP”) requesting his opinion about the laying of charges. The DPP recommended that charges should be laid involving four of the eight Nova Scotia‑based complainants who were willing to testify. He chose the incidents which involved the most serious physical violations. He also recommended that the police re‑contact the six women who had been victims of apparent criminal conduct, but were unwilling to testify. The police did not agree with the DPP’s charging recommendation, being of the view that a more complete picture of the allegations against the accused should be put before the court. After the Crown joined police in re‑interviewing most of the original complainants, 19 counts for sex‑related offences were laid against the accused. One year after the preliminary inquiry, the Crown decided to prefer a direct indictment setting out 18 counts of sex‑related offences, including one new charge (count 16).
After the DPP’s written recommendation, one of the Crown Attorneys met with police. At that recorded meeting, she suggested that it would not be “advisable” for charges to be brought before a particular judge, because she thought he might be a political appointment of the same party as the accused. Instead, she said she would “keep monitoring the court docket to see who is sitting when and what would be in our best interest”. Police and Crown also agreed to re‑interview a number of the complainants.
Citing the cumulative effect of this Crown behaviour combined with the police premature identification of him as a suspect, the accused sought a stay of all of the charges. At trial, a partial stay – 9 of the 18 counts – was granted. One of the charges stayed was count 16, which was similar in fact to an incident alleged to have occurred in Alberta, and the trial judge was suspicious that the Crown’s eagerness to put the Alberta facts before a Nova Scotia court motivated the Crown to lay this new, similar, Nova Scotia‑based charge. The Court of Appeal, in a majority decision, allowed the Crown’s appeal and set aside the stays of the nine counts.
Held (Iacobucci, Major, Binnie and Arbour JJ. dissenting): The appeal should be dismissed.
Per McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Bastarache and LeBel JJ.: A stay of proceedings will only be granted as a remedy for an abuse of process in the “clearest of cases”. Regardless of whether the abuse causes prejudice to the accused, because of an unfair trial, or to the integrity of the justice system, a stay of proceedings will only be appropriate when two criteria are met: (1) 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 (2) no other remedy is reasonably capable of removing that prejudice. The first criterion is critically important, and reflects the fact that a stay of proceedings is a prospective rather than a retroactive remedy. While most cases of abuse of process will cause prejudice by rendering the trial unfair, under s. 7 of the Canadian Charter of Rights and Freedoms a small residual category of abusive action exists which does not affect trial fairness, but still undermines the fundamental justice of the system. When dealing with an abuse which falls into the residual category, a stay of proceedings is generally speaking only appropriate when the abuse is likely to continue or be carried forward. Only in exceptional, relatively very rare cases will the past misconduct be so egregious that the mere fact of going forward in the light of it will be offensive. Where uncertainty persists about whether the abuse is sufficient to warrant the drastic remedy of a stay, a third criterion is considered: the interests that would be served by the granting of a stay of proceedings are balanced against the interest that society has in having a final decision on the merits.
The judge shopping in this case was offensive. Judge shopping is unacceptable both because of its unfairness to the accused, and because it tarnishes the reputation of the justice system. Furthermore, it should not infect the investigative process by involving police in a conspiracy to manipulate the process. The trial judge quite properly was seriously troubled by this evidence. He nevertheless was mindful that this single comment was not acted upon, and did not find it determinative in his ultimate conclusion that the process against the accused had been abusive to the point of necessitating a stay of proceedings.
Wide‑ranging pre‑charge Crown interviews are not, per se, an abuse of process. While the separation of police and Crown roles is a well‑established principle of our criminal justice system, different provinces have implemented this principle in various ways. In some Canadian jurisdictions, pre‑charge interviews by the Crown are a regular, even common practice. In these jurisdictions at least, it appears that public policy is served by the practice, and potentially harmful and arbitrary results are avoided by the refusal to draw a hard line at the decision to lay charges, before which Crown counsel may not interview complainants. The pre‑charge interviews in this case were done in accordance with the common practice of some other provinces, a practice more wide‑ranging than the narrow, exceptional to rare practice the trial judge described. Furthermore, the Crown conducted an understandable review of the potential witnesses, in the wake of an early recommendation by the DPP that was not determinative. Given the uncertainty of the charges at that point, it could not be known whether the re‑interviews led to more charges than would otherwise have been laid.
The trial judge was correct in his finding that the police error in releasing the accused’s name as a suspect well in advance of any charges does not rise to the level of egregious abuse. While the police policy that the identity of suspects may be released only after charges have been laid is laudable, and a breach of it should not be condoned, other evidence on the record indicates that after this one misstep, the police exercised greater caution in preventing further information leaks until the process was truly public. Moreover, the prejudice experienced by the accused as a result of this early leak — humiliation and stress — cannot be attributed to this police error alone. The serious remedy of a stay of proceedings is not an appropriate method to denounce or punish past police conduct of this nature.
The trial judge erred in finding an abusive or improper purpose behind the laying of count 16. The trial judge’s erroneous finding of a loss of Crown objectivity influenced this holding. If the trial judge had not started from the premise that the Crown had lost its objectivity, there would have been no justification for the trial judge to find the similarity between count 16 and the Alberta incident as the primary motivation for count 16, virtually ignoring the reasonable and probable grounds for laying count 16 in its own right.
There was no abuse of process in this case. The cumulative effect of the judge shopping, pre‑charge Crown interviews, the improper police announcement, and the addition of count 16 in the direct indictment, while troubling in some respects, does not rise to the level of abuse of process which is egregious, vexatious, oppressive or which would offend the community’s sense of decency and fair play. Moreover, this conduct, even if it did amount to an abuse, did not have an ongoing effect on the accused which would jeopardize the fairness of his trial.
The trial judge fell into error when he ordered the ultimate remedy of a partial stay of a number of charges. The trial judge misconceived the governing test for a stay of proceedings. Instead of inquiring into whether the abuse would be manifested, perpetuated or aggravated by ongoing proceedings, and then inquiring into whether any remedy other than a stay could cure this ongoing taint, the trial judge focussed his attention only on the final balancing exercise. The abuse found by the trial judge should be and was addressed by remedies other than a stay. Moreover, even if the trial judge had found an ongoing abuse which could only be remedied by a stay, the cumulative effect of the abuse still left some question about whether this was one of those clearest of cases warranting a stay. In his balancing analysis, the trial judge omitted some significant issues relevant to the public interest. Victims of sexual assault must be encouraged to trust the system and bring allegations to light. As the police saw it, there is evidence of a pattern of an assailant sexually attacking young girls and women who were in a subordinate power relationship with the accused, in some cases bordering on a relationship of trust. When viewed in this light, the charges are very serious and society has a strong interest in having the matter adjudicated, in order to convey the message that if such assaults are committed they will not be tolerated, and that young women must be protected from such abuse. In omitting to consider any of these issues which favour proceeding with charges, the trial judge’s discretion was not fully exercised and therefore cannot stand.
The decision to grant a stay is a discretionary one, which should not be lightly interfered with. However, where the trial judge made some palpable and overriding error which affected his assessment of the facts, the decision based on these facts may be reversed. Here, the trial judge made palpable and overriding factual errors which set his assessment of the facts askew. He was in error when he ruled that “pre‑charge Crown interviewing in this country is . . . non‑existent to rare”. As well, the trial judge implied that the loss of Crown objectivity was abusive because it meant that the accused ultimately faced more charges, but no evidence can be found to support this deduction. The trial judge also misdirected himself regarding the law for granting a stay by overlooking key elements of the analysis, thereby committing an error which was properly reversed by the Court of Appeal.
Per Iacobucci, Major, Binnie and Arbour JJ. (dissenting): The trial judge found as a fact that there was no independent and objective review by the Crown prosecutors in this case. The absence of the usual and proper checks and balances would, he thought, shock the conscience of the community. He cited a number of concerns that reflected this institutional failure, but his listing of the symptoms should not be mistaken for his important and central finding of fact that the accused had been denied his constitutional right to a fair pre‑trial procedure. No reason has been shown to set aside this critical finding of fact. The conclusion that well‑informed people may reasonably take from the continued prosecution of what the former Director of Public Prosecutions described as “minor” allegations 24 to 34 years after the events are said to have taken place is that the accused is being pursued not so much for what he has done as for who he is. Such a perception undermines public confidence in the impartiality and integrity of the criminal justice system.
The courts are very slow to second‑guess the exercise of prosecutorial discretion and do so only in narrow circumstances, but these extensive discretionary powers must be exercised with objectivity and dispassion. Here, the failure of the proper and usual institutional checks and balances prevented the objective review of charges laid by the police that, because of their staleness, relatively minor nature (compared with those that did go to trial) and the potentially light sentences even if convicted, would likely have been stopped if an objective review had taken place.
The preferral of a direct indictment by the Attorney General did not “cleanse” the prior errors of judgment of the Crown attorneys. It was motivated by an understandable desire to bring to an end a preliminary inquiry that had lasted almost a year, and cannot be taken as having belatedly supplied the objective and dispassionate review of the original charging decision that, in the trial judge’s view, had never taken place. A stay of proceedings was appropriate in this case. The absence of the proper checks and balances between police and prosecutor led to an increase in the number of charges laid against the accused. The trial judge concluded that the Crown’s loss of objectivity and improper motive will be “manifested, perpetuated or aggravated” through the continued prosecution of the charges to which these abuses of process gave rise. If the trial itself would not have occurred but for the abusive conduct, then the trial itself necessarily perpetuates the abuse. The only way to halt this continued prejudice to the accused is a stay of proceedings.
Cases Cited
By LeBel J.
Referred to: Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391; R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. Power, [1994] 1 S.C.R. 601; R. v. Conway, [1989] 1 S.C.R. 1659; R. v. Scott, [1990] 3 S.C.R. 979; Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, 2000 SCC 44; United States of America v. Cobb, [2001] 1 S.C.R. 587, 2001 SCC 19; Boucher v. The Queen, [1955] S.C.R. 16; R. v. S. (S.), [1990] 2 S.C.R. 254; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Ewanchuk, [1999] 1 S.C.R. 330; R. v. Mills, [1999] 3 S.C.R. 668; R. v. Darrach, [2000] 2 S.C.R. 443, 2000 SCC 46; Elsom v. Elsom, [1989] 1 S.C.R. 1367; Stein v. The Ship “Kathy K”, [1976] 2 S.C.R. 802; R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38; R. v. Van der Peet, [1996] 2 S.C.R. 507.
By Binnie J. (dissenting)
R. v. Curragh Inc., [1997] 1 S.C.R. 537; Boucher v. The Queen, [1955] S.C.R. 16; Lemay v. The King, [1952] 1 S.C.R. 232; R. v. Stinchcombe, [1991] 3 S.C.R. 326; Elsom v. Elsom, [1989] 1 S.C.R. 1367; R. v. Carosella, [1997] 1 S.C.R. 80; Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3; R. v. Van der Peet, [1996] 2 S.C.R. 507; R. v. Bain, [1992] 1 S.C.R. 91; Nelles v. Ontario, [1989] 2 S.C.R. 170; R. v. Chamandy (1934), 61 C.C.C. 224; R. v. G.D.B., [2000] 1 S.C.R. 520, 2000 SCC 22; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. O’Connor, [1995] 4 S.C.R. 411; In re Sproule (1886), 12 S.C.R. 140; R. v. Jewitt, [1985] 2 S.C.R. 128; R. v. Beare, [1988] 2 S.C.R. 387; R. v. Power, [1994] 1 S.C.R. 601; Smythe v. The Queen, [1971] S.C.R. 680; R. v. T. (V.), [1992] 1 S.C.R. 749; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Keyowski, [1988] 1 S.C.R. 657; Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391; R. v. Sweitzer, [1982] 1 S.C.R. 949; R. v. B. (C.R.), [1990] 1 S.C.R. 717; R. v. Osborn, [1971] S.C.R. 184; Rourke v. The Queen, [1978] 1 S.C.R. 1021; R. v. Conway, [1989] 1 S.C.R. 1659; R. v. Scott, [1990] 3 S.C.R. 979.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7 , 24(1) .
Criminal Code, R.S.C. 1985, c. C‑46, s. 577 [rep. & sub. c. 27 (1st Supp.), s. 115 ].
Criminal Code, S.C. 1953‑54, c. 51, s. 138(2).
Authors Cited
Canada. Law Reform Commission. Working Paper 62. Controlling Criminal Prosecutions: The Attorney General and the Crown Prosecutor. Ottawa: The Commission, 1990.
Canadian Bar Association. Code of Professional Conduct. Ottawa: Canadian Bar Association, 1988.
Nova Scotia. Department of the Attorney General. Independence, Accountability and Management in the Nova Scotia Public Prosecution Service: A Review and Evaluation. By Joseph A. Ghiz and Bruce P. Archibald. Halifax: The Department, 1994.
Nova Scotia. Royal Commission on the Donald Marshall, Jr., Prosecution, vol. 1, Findings and Recommendations. Halifax: The Commission, 1989.
Ontario. Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions. Toronto: The Committee, 1993.
Ontario. The Commission on Proceedings Involving Guy Paul Morin: Report, vol. 2. Toronto: Ministry of the Attorney General, 1998.
Paciocco, David M. "The Stay of Proceedings as a Remedy in Criminal Cases: Abusing the Abuse of Process Concept" (1991), 15 Crim. L.J. 315.
Québec. Ministère de la Justice. Crimes à caractère sexuel: Guide du poursuivant. Québec: Direction générale des poursuites publiques, 2000.
Québec. Ministère de la Justice. Manuel de directives aux substituts du procureur général. Québec: Direction générale des affaires criminelles et pénales, 1988 (rév. 21 janvier 1997).
APPEAL from a judgment of the Nova Scotia Court of Appeal (1999), 179 N.S.R. (2d) 45, 137 C.C.C. (3d) 449, 28 C.R. (5th) 1, [1999] N.S.J. No. 293 (QL), allowing the Crown’s appeal from a decision of the Nova Scotia Supreme Court (1998), 21 C.R. (5th) 366, 58 C.R.R. (2d) 283, [1998] N.S.J. No. 128 (QL). Appeal dismissed, Iacobucci, Major, Binnie and Arbour JJ. dissenting.
Edward L. Greenspan, Q.C., and Marie Henein, for the appellant.
Robert Morrison, Q.C., and Heather Leonoff, Q.C., for the respondent.
Robert J. Frater and Silvie Kovacevich, for the intervener the Attorney General of Canada.
Mario Tremblay, for the intervener the Attorney General of Quebec.
John J. Walsh, for the intervener the Attorney General for New Brunswick.
The judgment of McLachlin C.J. and L’Heureux-Dubé, Gonthier, Bastarache and LeBel JJ. was delivered by
LeBel J. –
I. Introduction
1 This case brought before the Court allegations of prosecutorial misdeeds, allegations of sexual interference and the harsh light of publicity surrounding the man at the centre, Nova Scotia’s former Premier, Gerald Regan. The appellant Regan was ultimately charged with 18 counts of rape, attempted rape, indecent assault and unlawful confinement involving 13 women. He has already faced trial on eight of these counts, involving three women, for which he was acquitted. At the time of this hearing, one charge involving a fourth woman was still awaiting trial. The remaining charges were stayed by the trial judge because of Regan’s claim that the Crown prosecutor was out to get him. The Court of Appeal overturned the stay. The Crown, itself, has since stayed two of the charges, and seven counts of sexual assault against Regan are currently pending.
2 The issue before this Court is whether the Crown and the police did indeed overstep their authority in the proceedings of this case, and if so, whether that abuse of the criminal justice process was so egregious as to warrant a stay of the proceedings. The ultimate question, as far as the appellant Regan is concerned, is whether or not he must return to trial to face the remaining charges of sex-related offences. Thus, the decision to uphold a stay of proceedings is a very serious one, which prevents, forever, the possibility of bringing charges of criminal behaviour before a judge and jury. In this case, the evidence does not disclose any serious abuse of process, or taint of the justice system, that would warrant such a drastic measure. I would dismiss Regan’s appeal.
II. Facts
A. Overview
3 On March 15, 1995, Gerald Regan, by that time a former Premier of Nova Scotia, was charged with a long list of sexual offences, against a variety of women who had worked for or with him, dating back to the 1950s. The stories of alleged abuse had taken a long and winding path before finally surfacing. First, a CBC journalist spoke to a number of women who told of abusive acts they had allegedly suffered at the hands of the appellant. But that journalist did not broadcast the story. Several years later, while doing some research of his own, an avowed political foe of the appellant uncovered the information from the aborted news report. This informant took the stories to the police in July of 1993, and in September, an RCMP task force launched an investigation. During the investigation, a police officer responded to a reporter’s request to confirm or deny that the appellant was under investigation. The police confirmed — a public admission which was in violation of police policy to remain silent about individual suspects until charges are laid. More than 300 interviews later, and 18 months after the story first broke about the Regan investigation, charges were laid.
B. The Charges
4 The decision to lay charges also has a convoluted history. At the conclusion of the police investigation, a report dated March 30, 1994 was submitted to the province’s then Director of Public Prosecutions (“DPP”), John Pearson, with a request for his opinion about the laying of charges. The report identified 22 women complainants. Among them were six women who had been Regan’s babysitters, one who had been his housekeeper, a political intern, a legislative page, a secretary, and a political reporter. The women were all young at the time of the alleged assaults, ranging in age from 14 to 24 years. One woman alleged she was raped when she was 14, two others alleged attempted rape. The other incidents involved sexual touching, exposure and kissing. The police report categorized the charges this way:
- three complainants who “may have been victims of sexual impropriety”, but in the opinion of the police were not victims of criminal acts (although the acts showed a “modus operandi”);
- six complainants who the police believed were victims of criminal offences, but who were “not willing to testify in a court of law”;
- four complainants who were considered victims of criminal offences, but who did not want to testify as complainants, and were only willing to “co-operate by providing similar fact evidence at trial”;
- and nine complainants of criminal acts who were willing to testify as complainants. Of these nine, one of them alleged the attack had occurred in Calgary, Alberta.
5 DPP Pearson responded to police by letter dated June 28, 1994, that he and two other prosecutors had reviewed the file. One of those was Susan Potts, then Senior Crown Attorney in charge of sexual assault prosecutions. Pearson recommended that charges should be laid involving four of the eight Nova Scotia-based complainants who were willing to testify. He chose the incidents which involved the most serious physical violations, including rape, attempted rape, and the one case where it was alleged the appellant had exposed his penis.
6 In the other four local cases of willing complainants, DPP Pearson recommended that the police not proceed with charges. These cases involved many similar accounts of the appellant trying to grope and “French kiss” the victim. DPP Pearson explained that although these acts would have been against the law at the time, “the allegations are minor in nature, especially when placed in the context of societal values at the time”, and the “staleness” of the offences outweighed their “gravity”. He thought that the minor charges could be sanctioned by proceeding against the more major ones, and he feared that otherwise the prosecution might appear to be a “persecution”.
7 In addition, DPP Pearson advised that “the case against Regan would be significantly enhanced if some of the more recent incidents were proceeded with”. He recommended that the police re-contact the six women who had been victims of apparent criminal conduct, but were unwilling to testify. He made no recommendation about the complainants who had apparently been victims of criminal behaviour, but were only willing to give similar fact evidence. Finally, DPP Pearson recommended that the police contact Alberta authorities with regard to the Calgary-based incident. He advised the police that “you are not obliged to accept our opinion and that the final charging decision rests with you. We are also cognizant of the duties and responsibilities of Crown Counsel to consider whether or not it is appropriate to proceed with charges once they have been laid.” He suggested that police investigators “meet with [Crown counsel] Susan Potts to finalize the wording of any charge [the police] decide to proceed with”.
8 The police did not agree with DPP Pearson’s charging recommendation. They were of the view that a more complete picture of the allegations against the appellant should be put before the court. Chief Superintendent Falkingham testified:
. . . over the several years I saw a pattern and an MO that Mr. Regan sexually assaulted, in my view, a number of young teenagers. . . . The MO was with babysitters, the MO was with – when he had an opportunity to be alone with a young girl, and I felt that that was all building into a large picture which indicated to me that there was a continuing criminal offence in my mind, together – as a global investigation.
. . .
My view is the matter of charges had to involve the large number of complainants and as a result of them – the continued offences over the years. . . .
9 After the Crown joined police in re-interviewing most of the original complainants, 16 counts for sex-related offences, involving 11 women, were laid against the appellant on March 15, 1995. On May 30, 1995, a revised information was sworn, which added two new complainants and three new counts, for a total of 19 counts related to 13 women.
10 The matter proceeded to a preliminary hearing in April 1996. One year later, the Crown decided to prefer a direct indictment. In that final charging decision, one complainant was dropped, a new one was added (count 16), and the charges concerning a third were amended to drop one count, bringing the final tally to 18 counts of sex-related offences, involving 13 women, laid against the appellant.
C. Crown Conduct
11 After DPP Pearson’s written recommendations, Crown Potts met with police on July 15, 1994. At that recorded meeting, Crown Potts suggested that it would not be “advisable” that charges be brought before a particular judge, because she thought he would have political ties to the appellant. Instead, she said she would “keep monitoring the court docket to see who is sitting when and what would be in our best interest” – an exercise commonly known as “judge shopping”.
12 At the same meeting, Potts requested to read all the investigation reports, because “this would give her a clear picture of what was actually going on”. Notes of a meeting on January 17, 1995, attended by the RCMP Chief Superintendent on the case, confirmed that Potts had by then re-read “the evidence and the victims’ statements”. Police and Crown then agreed that six complainants reluctant to testify “have to be re-interviewed”. In the end, police and Crown counsel together re-interviewed many of the original 22 complainants, as well as five new women who came forward after the Pearson letter.
13 The purpose of the re-interviews was “[f]irstly and primarily, to provide information about the Court process to potential complainants so that they could make an informed decision as to their involvement in these proceedings; and secondly, to make assessments of credibility about these witnesses, including their capacity for recall and general demeanor issues, and to prepare for a preliminary inquiry”. (Trial submissions of the Crown, Appellant’s Record, p. 1089)
14 The re-interviews included 16 of the original 22 complainants: four of the six reluctant witnesses whom DPP Pearson had recommended should be re-approached; three of the four women only willing, at first, to give similar fact evidence; three of the four complainants for whom Pearson had recommended laying charges (the fourth refused to proceed further); all four willing complainants whom the police wanted to charge but for whom DPP Pearson had recommended that no charge be laid; the complainant in the Alberta-based incident; and one of the three complainants for whom, at first, it was thought there was no criminal offence.
15 Crown Potts was removed from the prosecution of this case by the time the preliminary inquiry began in April 1996. Crown Adrian Reid stepped in as lead counsel at the preliminary inquiry and trial. Crown Reid became involved with the case in December 1995 after charges were laid.
16 Citing the cumulative effect of this Crown behaviour combined with the police premature identification of him as a suspect, the appellant sought a global stay of all of the charges. At trial, a partial stay – 9 of the 18 counts – was granted.
III. Judicial History
A. Nova Scotia Supreme Court (1998), 21 C.R. (5th) 366
17 Michael MacDonald A.C.J. identified that the appellant was not claiming an abuse of process which had tainted the fairness of the trial, and was therefore seeking relief under the so-called residual category of procedural abuse, which will warrant a stay of proceedings. MacDonald A.C.J. noted, however, that the remedy of a stay remains reserved for only the clearest of cases, where it is the only remedy available to counter the effects of the abuse (Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391).
18 MacDonald A.C.J. adopted the test for a stay articulated in Tobiass, at para. 90, where the Court held that in order to grant a stay, two criteria must be satisfied: (1) that the prejudice will be manifested, perpetuated or aggravated through the conduct of the trial or by its outcome, and (2) that no other remedy is reasonably capable of removing the prejudice flowing from the abuse. The Court added a third factor which should be considered in cases where it remains unclear whether the abuse is sufficient to warrant the stay. It requires courts to engage in a weighing of the societal interests involved. Courts must then “balance the interests that would be served by the granting of a stay of proceedings against the interest that society has in having a final decision on the merits. This is not to say, of course, that something akin to an egregious act of misconduct could ever be overtaken by some passing public concern” (Tobiass, at para. 92). MacDonald A.C.J. acknowledged that this third criterion would play a significant part in his analysis. In approaching the issue, MacDonald A.C.J. noted that he had to weigh the cumulative effect of any alleged wrongdoing. He was also mindful that abuse of process need not be driven by evidence of mala fides to warrant a stay, although such evidence was certainly relevant.
19 MacDonald A.C.J. reviewed the respective roles of the police and of the Crown and noted that while performing independent tasks, they must work well together. A strict separation of their functions, however, creates a safeguard against misconduct by either one. This system of checks and balances is achieved by drawing a clear line between the investigation of charges, and their prosecution. He held that police in Nova Scotia are “exclusively responsible for the investigation of crime and deciding what if any charges are to be laid. . . . Here, the Crown’s role is limited to simply providing legal advice; advice which is not binding on the police” (paras. 63 and 65). In contrast, the Crown must function as “a quasi judicial minister of justice who must also serve as advocate” (para. 67).
20 The appellant submitted a list of allegations of police and Crown misconduct, including the premature formation of a police task force to investigate allegations against Regan, and questionable investigative techniques and arrest procedures. MacDonald A.C.J. concluded that these actions had little impact on the appellant. He did consider that the premature confirmation of Regan as a suspect in the police investigation was clearly wrong, as it contravened express police policy. He was troubled by this serious error in judgment.
21 MacDonald A.C.J. then reviewed the allegations of Crown misconduct. He found clear evidence of Crown Potts’ blatant attempt at judge shopping, and found this offensive and most troubling. For MacDonald A.C.J., this gave the appearance of a Crown Attorney who was attempting to secure a conviction at all costs. He concluded that Potts’ behaviour had the effect of tainting her entire involvement in the process.
22 The pre-charge Crown interviews of complainants were, however, the most contentious issue before MacDonald A.C.J. Crown counsel, particularly Ms. Potts, became heavily involved with pre-charge interviewing. He found that the practice of pre-charge Crown interviewing in this country is not entirely rejected, but where used, its scope is narrow. MacDonald A.C.J. observed that in the provinces like New Brunswick, where pre-charge Crown interviews are done, they serve only as a screen to protect a suspect from the humiliation of being charged, if charges are later dropped or stayed. In this case, he found that the purpose for at least some of the pre-charge Crown interviews was to have reluctant complainants change their minds and come forward to lay charges. MacDonald A.C.J. held that protection of the appellant was never a factor motivating the Crown’s pre-charge interviews.
23 As a result, MacDonald A.C.J. found that this process had an impact on the number of charges that were ultimately laid. He held that the Crown was integrally immersed in the decision-making about charges. Cooperation led to consensus and this collaboration homogenized the process which then became a joint charging decision. The Crown had lost its objectivity: the effect was to deny the appellant a hard, objective second look at the charging decision, which is fundamental to the role of the Crown. In MacDonald A.C.J.’s view (at para. 124),
[i]t is impossible to retain the requisite level of objectivity by conducting lengthy (and no doubt emotional) pre-charge interviews with the complainants. Human nature just will not allow it. By doing so you hear first hand only one side of the story. How can you then objectively review the process which includes a consideration of the rights of the applicant?
Nevertheless, MacDonald A.C.J. found that the Crown did not get involved in the investigation, and apart from Crown Potts’ inexcusable comment about judge shopping, all other Crown counsel involved in the case were well-intentioned throughout the process, yet they simply lost perspective during the charging procedure.
24 MacDonald A.C.J. found that the Crown had not acted in bad faith when preferring the direct indictment. The preliminary inquiry was very lengthy. If the Crown had been ill-motivated, it could have preferred the direct indictment at the outset or at least sooner than it did.
25 When viewing his concerns cumulatively, about judge shopping, the Crown’s pre-charge interviews and to a lesser extent, the RCMP’s premature confirmation that Regan was under investigation, in total this was not one of those clearest of cases of procedural abuse that demanded a global stay of all the charges. Instead, on a case-by-case review, he decided that for the nine charges concerning the most serious allegations there was a strong societal interest in proceeding with the prosecution.
26 However, for the less serious charges, MacDonald A.C.J. pointed out that the Pearson Report was detailed and comprehensive and spoke volumes about what the Crown originally thought was fair to the appellant. The Crown should not be seen to significantly change its position without valid reason. He held that the Crown did change its position: the direct indictment proceeded with charges involving at least four and arguably six complainants who were initially on Mr. Pearson’s recommended list to exclude. He concluded that the Pearson recommendations should be given significant deference. He followed the Pearson charging recommendation and also applied its criteria to charges which post-dated the Pearson report. In the end, MacDonald A.C.J. concluded by staying the remaining 9 of the 18 counts before him.
27 MacDonald A.C.J. added a final comment about count 16, which was among those he stayed. He held that the Crown had been motivated by an improper purpose in proceeding with this charge, which was first laid as part of the direct indictment. Count 16 was similar in fact to the incident alleged to have occurred in Alberta. The Alberta allegation could not be pursued in Nova Scotia. MacDonald A.C.J. was suspicious that the Crown’s eagerness to put the Alberta facts before a Nova Scotia court motivated the Crown to lay this new, similar, Nova Scotia-based charge. MacDonald A.C.J. considered this an improper purpose which irretrievably tainted this count.
B. Nova Scotia Court of Appeal (1999), 179 N.S.R. (2d) 45
1. Cromwell J.A. (Roscoe J.A. concurring)
28 Cromwell J.A., for a majority of the Court of Appeal, found two significant errors in the trial judge’s reasoning. First, the trial judge erred in law by not asking himself whether the continuation of the prosecution of the charges would manifest, perpetuate or aggravate the prejudice caused by the Crown’s failure to properly exercise its discretion at the charging stage. Second, the trial judge also erred by treating a judicial stay of proceedings as a remedy for past misconduct.
29 The narrow, residual category of abuse of process applied in this case, because the trial judge had rejected all the appellant’s arguments that he could not receive a fair trial. Cromwell J.A. observed that there must be exceptional circumstances here to warrant the granting of a stay, as “[o]nly in rare and unusual circumstances could holding a fair trial, of itself, be damaging to the integrity of the judicial process” (para. 108).
30 Cromwell J.A. recounted the three-step analysis for this residual category (Tobiass, supra). At the first step, the accused must show that there has been misconduct, or circumstances which have arisen apart from misconduct, which render the continuation of the prosecution damaging to the integrity of the judicial process. At the second step, the court must balance the integrity of the judicial process against the societal interest in the prosecution of alleged crimes. This is done by considering whether the prejudice caused by the abuse will be manifested, perpetuated or aggravated by the continuation of the prosecution. If so, then the