Monday, February 24, 2014

The Canadian slant on trial fairness and the stay of proceedings

When prosecution misconduct imperils the fairness of a trial, and no other remedy can be found to eliminate any real risk that the trial will be unfair, it is the duty of the judge to stay the proceedings.

This is a corollary of the defendant’s absolute right to a fair trial. If there is a real risk that the trial will be unfair, there is no next-step of balancing the public interest in proceeding against the defendant’s interest in trial fairness.

There are two sorts of relevant prejudice that can arise from the misconduct of officials. In Canada they are described as follows. The first, the main category, is prejudice to the defendant’s right to a fair trial. The second or residual category is prejudice to the integrity of the judicial process, and here it is necessary for the judge to consider whether allowing the proceedings to continue would lend judicial condonation to the impugned conduct.

One may wonder whether the Supreme Court of Canada thinks that the defendant’s right to a fair trial is an absolute right (and see R v NS, discussed here on 20 December 2012). In an obiter error it has said that, if it is uncertain that a stay of proceedings is warranted as a response to prejudice to trial fairness that cannot be remedied in any other way, the judge must balance the interests of the defendant against the interests of society in proceeding with the prosecution: R v Babos, 2014 SCC 16 (21 February 2014), at [32] – [33] (and subject to [40] quoted below), purporting to follow R v Regan, 2002 SCC 12 (14 February 2002) at [54], [57].

I say “error” and “purporting” because in Regan, where the Court split 5 – 4 on the facts, the majority attached the balancing exercise as a final consideration in relation to prejudice in the “residual” category, that is, the category that does not include trial unfairness. No balancing was required in relation to the main category, trial unfairness. That was a correct application of Canada (Minister of Citizenship and Immigration) v Tobiass, 1997 CanLII 322 (SCC) at [91] – [92], which plainly concerned the residual category of occasions where impropriety by officials may give rise to prejudice to the integrity of the judicial process. There was no authority for applying balancing to the main, trial fairness, category of prejudice.

This point could be overlooked, for the majority in Babos said at [40]:

“ ... When the main category [trial fairness] is invoked, it will often be clear by the time the balancing stage has been reached that trial fairness has not been prejudiced or, if it has, that another remedy short of a stay is available to address the concern.  In those cases, no balancing is required.  In rare cases, it will be evident that state conduct has permanently prevented a fair trial from taking place.  In these “clearest of cases”, the third and final balancing step will often add little to the inquiry, as society has no interest in unfair trials.”

Requiring the “clearest of cases” before dispensing with the balancing exercise is hardly a protection of the defendant against a real risk of an unfair trial. The embarrassment could be avoided if one were to pretend that a “real risk” is the same thing as “the clearest of cases”. But it isn’t. Does society have an interest in proceeding with trials that may well be unfair, and only staying those which must be unfair?

In Babos Abella J dissented on the assessment of the prejudice to the integrity of the judicial process in this case. She did not mention the trial fairness category of prejudice.

The critical misconduct in Babos was threats by a prosecutor that the defendant would face more charges if a guilty plea was not entered [10], [59] – [71]. The level of residual prejudice that these gave rise to must be assessed in the circumstances of the case. It was significant here that a threat had occurred before the defendant had obtained sufficient disclosure to make an informed decision as to plea. Even so, there were circumstances that reduced the prejudice, and on balance the majority concluded that a stay was not warranted.