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.
