2011 QCCA 439, 2011 QCCA 439

Unofficial English Translation R. c. Tshiamala 2011 QCCA 439 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-004308-092 (500-01-008715-069 SEQ.ACC. 001, 003, 004, 005, 006 / 006) DATE: March 11, 2011 CORAM: THE HONOURABLE J.J. MICHEL ROBERT, C.J.Q. FRANÇOIS DOYON, J.A. MARIE-FRANCE BICH, J.A. HER MAJESTY THE QUEEN APPELLANT – Prosecutrix v. JOHN TSHIAMALA (SEQ. ACC. 001 / 006) ERNSO THÉOBRUN (SEQ. ACC. 003 / 006) EVENS BELLEVILLE (SEQ. ACC. 004 / 006) CLEVELAND ALEXANDER-SCOTT (SEQ. ACC. 005 / 006) McCLEE CHARLES (SEQ.

ACC. 006 / 006) RESPONDENTS - Accused JUDGMENT [ 1 ] The appellant appeals from a judgment rendered on January 12, 2009, by the Superior Court, District of Montreal, (the Honourable Madam Justice Sophie Bourque), ordering a permanent stay of proceedings; [ 2 ] For the reasons of Doyon J.A., with which Chief Justice Robert and Bich J.A. agree, the Court; [ 3 ] ALLOWS the appeal; [ 4 ] SETS ASIDE the judgment rendered on January 12, 2009; [ 5 ] ORDERS a new trial. [ 6 ] PROHIBITS the appellant from using the evidence referred to in paragraphs 84 and 183 of these reasons; [ 7 ] ORDERS the appellant to designate, for the purposes of the trial, a prosecutor other than Mtre Louis Bouthillier.

J.J. MICHEL ROBERT, C.J.Q. FRANÇOIS DOYON, J.A. MARIE-FRANCE BICH, J.A. Mtre Michel Pennou Criminal and Penal Prosecutor For the appellant

Mtre Daniel Couture For the respondent John Tshiamala Mtre Marco LaBrie Downs Lepage Mtre Maude Pagé-Arpin Monterosso Giroux For the respondent Ernso Théobrun Mtre Christian Deslauriers Christian Deslauriers inc. For the respondent Evens Belleville Mtre Daniel Royer Labelle, Boudrault, Côté & Assoc.

For the respondent Cleveland Alexander-Scott Mtre Patrick Cozannet Patrick Cozannet, attorney Mtre Véronique Robert-Blanchard Roy and Robert, attorneys For the respondent McClee Charles Date of hearing: November 29, 2010 REASONS OF DOYON, J.A. [ 8 ] The respondents were charged with second degree murder. [ 9 ] Deeming the prosecution's conduct to be abusive to the point of breaching the respondents' rights under the Canadian Charter of Rights and Freedoms thus making the trial unfair and adversely affecting the integrity of the judicial process, the trial judge ordered a permanent stay of proceedings, a drastic remedy reserved for the most serious or clearest of cases. [1] [ 10 ] The serious incidents that compelled the judge to order this permanent stay of proceedings can be summarized as follows: - Crown counsel presented a piece of evidence to the jury that he knew to be inadmissible.

It was a letter identified as exhibit P-27 that was drafted by an unknown person and included a good deal of hearsay. - By doing so, the prosecutor transgressed a court order clearly expressing to the parties the need for a debate before this letter could be entered into evidence. - This letter was highly prejudicial to the five accused. - Furthermore, Crown counsel knew of the existence of another piece of evidence that contradicted the letter, or at the very least, which greatly reduced its probative value. The judge spoke of "privileged contrary evidence".

Counsel knew that this other piece of evidence could not be disclosed to the defence as it would reveal an informer's identity. [2] Thus, he knew that it would never be available to the defence to counter the effects of the letter P-27. - The prosecutor nonetheless continued to present his evidence as if this other piece of evidence did not exist. - The prosecutor did not notify the judge or the defence of the existence of this other piece of evidence until it came to light some three weeks later during an ex parte and in camera hearing on a defence motion for the disclosure of the censored parts of the investigators' personal notes. - Moreover, Crown counsel obtained from the Court an adjournment of the trial based on false pretences, for the sole purpose of enabling a police operation targeting the prosecution's main witness, who was in the middle of his testimony.

Again, the judge only discovered the truth subsequently. - Another Crown counsel finally acknowledged, some three weeks later, that the rights of the accused had been breached by the prosecutor's conduct, which called for a mistrial. [ 11 ] The appellant argues that the judgment contains errors of law and palpable and overriding errors of fact that require the intervention of the Court of Appeal. For the following reasons, I would side with the appellant and set aside the trial judgment.

CAVEAT [12] It is worth mentioning beforehand that the trial judge ordered part of her judgment sealed to ensure that informer privilegewas respected and the informer's identity was protected. This is an unusual procedure since neither the public nor the respondents hadaccess to a portion of the facts and reasons underlying the decision, whereas the appellant obviously had access. [13] Such an order is sometimes nonetheless necessary, as was clearly the case here. The judge explained: [translation] [20] An open court system and the public rendering of judgments are cardinal rules in our justice system.

They guarantee that the partieswill have a fair and just trial and allow citizens to know, understand, and trust the justice system—a pillar of a free and democraticsociety. [21] However, there are certain times when information must be kept confidential in the best interest of society. This is the case whenthere is a question of a police informer being involved. [22] Informer privilege guarantees that any person who collaborates with police forces by giving them information concerning criminalactivities will remain anonymous. Neither his or her name nor any identifying information may be revealed to anybody.

Everybody,including police officers, attorneys, and judges, is bound by this rule. It is required to protect the informer's life and society's ability tosolve crimes and protect itself while ensuring that it will always enjoy the collaboration of informers. [23] Information given by an informer is at the heart of the present judgment.

The application of informer privilege entails that portionsof this judgment cannot be made public. [24] For this reason, two versions of the judgment were filed into the record: a complete, uncensored version and a censored versionprotecting the identity of the informer. [14] Other courts, including the Supreme Court, have occasionally had to rely on this procedure.[3] [15] It goes without saying that the confidentiality order must be respected in appeal.

Thus, the Court, which had access to all theevidence and the uncensored version of the judgment, cannot make this information public any more than could the court below. [16] Because it is unusual for the prosecution and the court to have knowledge of facts that remain hidden from the eyes of boththe public and the accused, the order must be limited to those facts that would identify an informer. In the words of Bastarache J. inNamed Person v.

Vancouver Sun, 2007 SCC 43 , [2007] 3 S.C.R. 253: [50] Having established the existence of an informer privilege, the judge is charged with carrying on the proceedings without violatingthat privilege by disclosing any information that might tend to reveal the confidential informer’s identity while at the same timeprotecting and promoting the values of the open court principle. [17] That is exactly what the trial judge did. [18] These confidential pieces of evidence will remain unavailable, but will be taken into consideration by the Court for thepurpose of its judgment.

BACKGROUND [19] On the night of October 23, 2005, the victim, Raymond Ellis, and two of his friends made their way to the Aria bar inMontreal. They were unaware that several members of a street gang, the Blues, were there commemorating the murder of one of theirown, Passius Rydewood, who had apparently been killed by a rival gang, the Reds. [20] Mistakenly believing that Raymond Ellis was one of those responsible for the death of Passius Rydewood, a group of personslinked to the Blues surrounded him and an altercation ensued.

The situation degenerated and the victim was punched and kicked andreceived a dozen knife wounds. Mr. Ellis, whom, it should be noted, had nothing to do with the attack on Mr. Rydewood, died as a resultof internal bleeding caused by the knife wounds. [21] The police investigation led to the arrest of seven men. Charged with second degree murder, six of them were ordered to standtrial following the preliminary inquiry, one of these six before the Youth Court. [22] During the police investigation, a certain Wilkerno Dragon made a KGB[4] video statement.

His version incriminated three ofthe five respondents: Ernso Théobrun, who allegedly stabbed Raymond Ellis, as well as John Tshiamala and McLee Charles, whoallegedly punched and kicked him. [23] Mr. Dragon testified for three days at the preliminary inquiry in March of 2007. He appeared to collaborate with theprosecution until January of 2008, when he was compelled to testify in the young person's trial. When the time came, he was nowhere tobe found and did not show up for the trial; consequently, a warrant was issued for his arrest. [24] Following the young person's trial, which resulted in a conviction, Mr.

Dragon was arrested for robbery and announced thathe no longer wished to testify. He remained in custody. [25] The trial for the five respondents began on September 11, 2008, with a hearing on preliminary motions.

[ 26 ] On September 19, an informer revealed to the police that McLee Charles had offered Mr. Dragon a sum of money in exchange for his silence. [ 27 ] On October 22, the informer gave a detailed statement: Mr. Dragon allegedly received a letter from Mr. Charles in which the latter undertook to pay the former the amount of $15,000 to testify in his favour. Another informer confirmed this version. [ 28 ] The letter in question was never found, but this information led to a search at the detention centre on October 23.

On that occasion, a different letter, which was filed as exhibit P-27 and which I will revisit, was found in Mr. Dragon's cell, more specifically in his pant pocket. [ 29 ] Evidence before the jury began on October 27, 2008. Ten witnesses were heard before Wilkerno Dragon, who was still detained, began his testimony. [ 30 ] It was in the course of this testimony that certain events occurred leading to the judgment a quo . [ 31 ] At this point, it would be useful to consider the testimony of Mr. Dragon and some related incidents.

TESTIMONY OF WILKERNO DRAGON AND CERTAIN OTHER INCIDENTS [ 32 ] Before beginning, it would be appropriate to add that the trial judge gave an order for the exclusion of witnesses on October 28, 2008. At the time, however, she did not warn Mr. Dragon specifically not to discuss his testimony with anybody, though she did do so on November 18, 2008. [ 33 ] On October 30, 2008, a voir dire was held in the absence of the jury to determine the intentions of the witness Dragon. He maintained his position of refusing to testify because his prior statements were false.

Crown counsel then communicated his intention of presenting the jury with the testimony given by Mr. Dragon at the preliminary inquiry and his KGB statement as a principled exception to the hearsay rule. [ 34 ] Upon resumption on Monday, November 3, 2008, Wilkerno Dragon was called to testify before the jury. He was examined by Mtre Bouthillier, Crown counsel. He reiterated that he did not wish to testify, and that his prior statements were false. [ 35 ] Mtre Bouthillier then presented a motion (in the absence of the jury) to have Mr.

Dragon declared an adverse witness pursuant to subsection 9(1) of the Canada Evidence Act , R.S.C. (1985), ch. C-5, and to have his prior statements (his KGB statement and his testimony at the preliminary inquiry) presented to the jury for the truth of their contents. Counsel also submitted to the judge that, in his opinion, the witness had been blackmailed or corrupted, which could be proved by a letter seized at the detention centre ten days earlier. [ 36 ] A voir dire was therefore held to determine the admissibility of Mr. Dragon's prior statements.

To this end, the prior statement and testimony of the witness were adduced as well as the letter seized on October 23, 2008. [ 37 ] Still on November 3, the judge authorized the filing of the letter for the sole purpose of the voir dire and only to show Mr. Dragon's state of mind and to decide if he was hostile within the meaning of the Evidence Act .

She made a point of adding that if a party wanted to file this letter in the presence of the jury, its admissibility would have to be established beforehand: [translation] Before using it before a jury, if at all, there will be a debate, you know, on that issue and on the admissibility of that document before a jury because, in that situation, there will be other evidence that will need to be taken into account. [ 38 ] The following day, still in the absence of the jury, one of the attorneys for the defence, who knew very little about this letter, revisited the subject and reiterated his concerns. [translation] "Are we going to explore all of this in voir dire or will we do it in the presence of a jury?", he asked before observing that the content of the letter might cause serious prejudice to the accused.

In short, counsel feared that the letter might be filed into the record without its admissibility being once again considered. His comments will be better understood once I have reported the contents of the letter. [ 39 ] The trial judge reassured him: [translation] "... we said we would have another debate... Well, it has to be done in a voir dire". [ 40 ] The judge rendered a judgment on November 5, 2008, on the issue of the admissibility of Wilkerno Dragon's prior statements. She found that the testimony given at the preliminary inquiry was admissible pursuant to

section 715 Cr. C. and the principled exception to the hearsay rule. She authorized the KGB statement to be adduced in evidence. Finally, she deemed it to be too soon to declare the witness hostile pursuant to subsection 9(1) of the Evidence Act and thought it preferable to wait until all the prior statements had been seen and heard in the presence of the jury. [ 41 ] Thus, the judge informed the jurors that they would be made aware of two prior statements and that they could use them as if they were the testimony of Mr. Dragon. [ 42 ] The video recording of the KGB statement was viewed on November 5, 2008.

At the end of it and in the absence of the jury, the judge asked the witness if he had changed his mind and now wished to testify. He would testify, he answered, on the condition that he first be permitted to consult with his own counsel. This condition was granted. After consulting, he informed the judge that he would testify.

[ 43 ] The following day, November 6, 2008, Mr. Dragon returned to the witness stand, before the jury. He reiterated that his statements were false and that, though he had seen the fight, he was unable to identify its participants. He alleged that, a short time after the murder, gang members belonging to the Reds (also referred to as the "Bloods") called him to ask that he report members of the rival gang, the Blues (or "Crips"), who were at the Aria bar that night.

That is why he identified the respondents as being the aggressors. [ 44 ] He also stated that if he testified at the preliminary inquiry in March of 2007, it was only because he was facing deportation and the authorities had told him that he had a greater chance of staying in Canada if he collaborated with the justice system. [ 45 ] He added that, in April of 2008, he was forced to leave the S-2 detention wing [5] because the Reds no longer considered him to be one of their own as he had refused to testify to incriminate the respondents.

Once in the S-1 wing, members of the Bo Gars (another gang) offered him money to ensure that respondent Théobrun remained in prison. He refused. He was again transferred to another wing, P-5, where, he said, [translation] "there was talk that McLee wanted to pay me to not testify. But it wasn't true". [ 46 ] Crown counsel then asked him whether he had received a [translation] "paper". He answered, [translation] "Yes, when I returned to the S-2 two weeks ago". [ 47 ] He said that this [translation] "paper" was then seized during a search of the detention centre. [ 48 ] Mtre Bouthillier showed him a document.

It was the letter filed at voir dire, which would become exhibit P-27. He asked him to read it out loud in the presence of the jury. None of the defence attorneys objected. Nor did the judge intervene, despite the warning she had given at the voir dire. Here is the text of the letter in question, as it was read by the witness in the presence of the jury: [6] [translation] Yo! William, it's Val, I waited... I heard that you're talking shit behind my back. Don't forget that I saved your life in the S-2. Look at how you... you're thanking me. I got nothing against you, even if you screwed me over.

You promised me things, you didn't deliver. And, the thing with the machine, that you had promised, I tried to call you, but you didn't answer. And also, for the deal you cut with us, me, you, and McLee for the fifteen grand (15,000), Kalito told me that McLee had given you fifteen grand (15,000), you never gave me the five grand (5,000). You screwed me like that; what's going on... that... that's going down with McLee you... you were a witness to who [leaves]...that...send me an answer to what I wrote. Don't forget that the... my friend, I got nothing against you.

Here's my new number if you want to get in touch with me. Give me your number because I lost it. Fois caca, fois big. Valdano [ 49 ] Mr. Dragon added that his best friend was Valdano Toussaint. The letter was filed as exhibit P-27, but it was never handed over to the jury. [ 50 ] The judge immediately warned the jury as to the limited use of this letter: [translation] I will interrupt you for just a second, Mtre Bouthillier, to give a... a warning to the jury regarding what was just heard. You have just... Mr.

Dragon has just read a document that was signed by a person, a letter that was given to him by a person who is not here to testify. What you are hearing concerning what third parties have said, I remind you that it does not constitute evidence as to its contents. Thus, there is no proof that there was a transaction. You have heard the name of Mr. McLee, there is no evidence before you that money was transferred by Mr. McLee. The purpose of the operation is simply to explain the witness's state of mind and why he testified as he did.

Under no circumstances, and I want to be very clear, never can this be used for any other purpose than to interpret the witness's behaviour here, in the prisoner’s box All right? Thank you. [ 51 ] A few moments later, the Crown counsel asked the witness whether he had a criminal record. Counsel for Ernso Théobrun, Mtre La Leggia, objected and in the course of the ensuing discussion, which took place in the absence of the jury, Crown counsel requested that Mr.

Dragon be declared an adverse witness. [ 52 ] With the jury still absent, counsel for Evens Belleville, Mtre Kling, voiced his concerns regarding the letter. He stated that the judge herself had announced that a debate would be held regarding the admissibility of this letter, a debate that had yet to be held. He said that he had notified Mtre Poudrier, one of the prosecuting attorneys, of his intention to present his submissions on the subject to the Court before the letter could be admitted into evidence.

Indeed, he argued, this document could be prejudicial to all the accused, including his client, even if the letter did not name him directly.

He added that, from the defence's viewpoint, [translation] "we would have been hard pressed to object before the jury". [ 53 ] The judge answered that it was up to him to object in a timely manner and that she had mistakenly believed that it might be a different version of the letter, which would have explained the lack of objection from the defence. [ 54 ] [translation] "Yet, the rules of the game must be respected", added counsel. [ 55 ] Finally, the judge took up the suggestion of Mtre Roy, counsel for McLee Charles, of not allowing the jury to consult exhibit P-27 for the moment, it being understood that the parties would have the opportunity to present their submissions at a later time. [ 56 ] The judge declared Wilkerno Dragon to be an adverse witness and Mtre Bouthillier proceeded to cross-examine him.

The witness denied having been offered money in exchange for not testifying against the accused. He explained that he received the letter through a clandestine communication system between detainees, adding that, though it was signed as being from Valdano, the writing was not that of his friend. [ 57 ] On Monday, November 10, 2008, the judge reiterated the admissibility of Mr. Dragon's prior statements.

[ 58 ] On November 10, 11, and 12, 2008, the jury therefore proceeded to listen to the testimony given during the preliminary inquiry. It was during this same period that other events occurred that must now be reviewed. [ 59 ] On Monday, November 10, a jailhouse informer contacted the police authorities and stated that Wilkerno Dragon had recanted because he had been threatened and now feared for his life. He added that Mr. Dragon had accepted the sum of $15,000 in exchange for not testifying against the accused, but had not received the money. The jailhouse informer was willing to testify.

He gave a KGB statement on November 17. Police officer Patrice Carrier informed Mtre Bouthillier of the ongoing situation in the afternoon of November 10. [ 60 ] Fearing that the informer’s credibility could be seriously shaken on cross-examination, the officers, with the help of two undercover agents, decided to conduct an operation targeting Wilkerno Dragon to validate the information. The two agents were to be detained with Mr. Dragon and would attempt to get him to confide in them. The officers took steps the whole week of November 10 to this end and kept Crown counsel regularly apprised of the situation.

They realized, however, that the operation could not get under way before Thursday night, November 13. [ 61 ] Meanwhile, on November 11, the judge notified counsel for all parties that she required a one-week suspension to give her time to write the reasons for some of the rulings. She suggested the last week of November or the first of December for this purpose. The jury then continued to listen to the testimony given by Wilkerno Dragon at the preliminary inquiry.

Before breaking for the morning, Mtre Bouthillier informed the judge that he would be absent for the rest of the morning to verify some information with the investigator. [ 62 ] Before recessing for lunch, Mtre Bouthillier, who had returned, suggested that the judge break for one week from the time the jury finished listening to Wilkerno Dragon's testimony at the preliminary inquiry, which would probably be on Thursday, November 13, around noon. Everyone would then benefit from an eleven day break. Mtre Bouthillier explained that this break would allow him to better focus his cross-examination of Mr. Dragon.

The defence objected and, not being in favour of interrupting Mr. Dragon's testimony for such a long period of time, the judge dismissed Mtre Bouthillier’s suggestion. [ 63 ] As the jurors were set to finish listening to the testimony on Wednesday, November 12, in the afternoon, Mtre Bouthillier then asked for an adjournment until the following Monday so that, according to him, he could be more efficient in the course of his cross- examination. He did not mention the police operation, however, which had been set in motion.

The defence did not object and the request was granted. [ 64 ] On Thursday, November 13, a police officer obtained a general warrant from a justice of the peace authorizing, for the purposes of the police operation, the detention of two undercover agents at the Center where Mr. Dragon was being detained. [ 65 ] The sting operation took place on November 13, and 14. [ 66 ] On Monday morning, November 17, the defence requested an adjournment.

Mtre La Leggia explained that around 9 a.m., he had received pieces of evidence from the prosecution indicating that undercover agents had met Wilkerno Dragon between November 12 and November 17. The evidence was made up of the personal notes of the agents (about 75 pages), but the version that had been disclosed to the defence was censored. [ 67 ] Mtre La Leggia wondered if this operation, which coincided with the prosecution's request for an adjournment, was not the [translation] "motivation behind the request" made by Mtre Bouthillier.

The judge adjourned the trial until the following day. [ 68 ] On the morning of November 17, the defence requested access to the sworn statements used to obtain the general warrant and wanted to know the identity of the informer. These requests were met in part: a censored version of the annexes to the denunciation and a copy of the warrant were disclosed. Mtre Bouthillier indicated that the informer would be called to testify, but that, in the meantime, he did not want to disclose his identity. [ 69 ] The judge informed Mtre Bouthillier that she was questioning the lawfulness of the operation.

In the afternoon of November 17, a voir dire was held to discuss the motion for disclosure of evidence. Mtre Bouthillier argued informer privilege to justify censoring the police notes. [ 70 ] It is also worth mentioning that the notes of one of the undercover agents might lead one to believe that Wilkerno Dragon was communicating with the accused during his testimony through a signal code used to make telephone appointments. Mr. Dragon and the accused would also communicate in the courtroom by passing written notes through the bars of the prisoner’s box. On Tuesday, November 18, the judge therefore ordered Mr.

Dragon not to discuss his testimony with anybody and significantly limited his contact with the outside. In addition, the defence announced that it would present two motions with respect to the sting operation, including one seeking the exclusion of the agents' testimony. The trial continued the following week. [ 71 ] On Friday, November 21, the defence filed its motion for exclusion of evidence. [ 72 ] On November 25, the prosecution disclosed new notes from the investigators, which were censored. The defence requested the disclosure of these passages, a voir dire was held ex parte this time and in camera .

In the censored portion of her judgment, [7] the trial judge gave a detailed account of the evidence heard at this voir dire, which lasted several days. [ 73 ] Still on November 25, the judge heard the parties on the motion to exclude evidence. Police officers were examined and the judge summarized their testimony in paragraph 75 of her judgment: [translation] • It is the Rivière-des-Prairies Detention Centre that required a general mandate so that the undercover agents could be detained. • Although Detective-Sergeant Desmarais’s affidavit in support of the general mandate does not make mention of this fact, he

testified that he took care to notify the justice of the peace that the witness was currently being cross-examined by the Crown prosecutor.

No mention of this conversation appears in the warrant, however, and Detective-Sergeant Desmarais did not testify that this additional information was given under oath. • From the start, the jailhouse informer's controller informed the detective-sergeants assigned to the case that his informer appeared to be credible and was not asking for anything in return for his testimony except for guarantees of protection for himself and his family. • Before November 10, 2008, no steps had been taken with regard to Wilkerno Dragon evading his subpoena in the file of X before the Youth Court or with regard to his stating, on April 28, 2008, that he no longer had any intention of testifying in the present case. • There was never any question between Crown counsel and Detective-Sergeant Carrier that an order for the exclusion of witnesses might cause an issue in the present case. [ 74 ] A police officer indicated that the sting operation was meant to unfold quickly, while Wilkerno Dragon was being cross- examined by Mtre Bouthillier, since [translation] "we wanted to prove that he had been bought".

Indeed, the police officer said that he understood it to be important for Mtre Bouthilllier to have the information from the undercover agents in hand to complete his cross- examination of Wilkerno Dragon. The officer added that he never specifically asked Mtre Bouthillier to obtain an adjournment of the trial, but added that [translation] "the more time we had, the better". [ 75 ] For his part, Mtre Bouthillier admitted that he had requested an adjournment to buy some time for the sting operation to unfold and to discover whether Wilkerno Dragon was committing perjury.

He pointed out that he could not disclose the actual reason for his adjournment request because, among other things, it would have endangered the lives of the informer and the undercover agents. He contended that he was justified to act as he did to convince the jurors that the witness was perjuring himself and that they should in fact accept the witness's version from December 1, 2005. [ 76 ] The judge pointed out to Crown counsel that he lied to the Court when he might have elected not to seek an adjournment and continue his cross-examination of Wilkerno Dragon.

First, Mtre Bouthillier denied having lied but conceded that he had refrained from telling the whole truth. He insisted that the initial reason alleged (to be better prepared) was true. He compared his comments to a half- truth, which, in his opinion, is common in courthouses. He explained that attorneys frequently seek adjournments invoking grounds that bend the truth.

These are the words he used in an attempt to justify his conduct: [translation] Listen, Your Honour, so now, don't take this the wrong way, you know, but this is not the first time that half-truths have been told to the Court to obtain postponements. It happens every day in courthouses whether the Crown does it or the defence. There's no need to view this as being any more serious than it needs to be. We have all done this, all of us, as much as we are because some things cannot be said. You will rarely hear an attorney say I haven't been paid by my client .

We will find a more elegant way of putting it and then it will be accepted because, well, that's how it works. Not all truths need be told, Your Honour. In my case, had I been ex parte , I could have told you those things. But there they are. They communicate with the witness. I could not risk the safety of the undercover agents or the safety of the jailhouse informer by being candid with the Court when I knew with whom we were dealing. We're not talking about stolen hubcaps here, this is murder and I consider that under the circumstances, I acted in the best possible manner. Could I have acted differently?

Without a doubt. [ 77 ] In short, Crown counsel felt that his fears for the safety of the agents and the informer justified the reasons given to request an adjournment, though these reasons misled the court. [ 78 ] Following these comments by Mtre Bouthillier, the defence amended the conclusions of its motion to exclude evidence and sought a stay of proceedings instead. [ 79 ] The judge resumed the hearing ex parte and in camera in the presence of Crown counsel. [ 80 ] Following both the public and in camera hearings held on November 25, 26, and 28, the judge made an order for the disclosure of evidence on December 1.

In it she discussed her concerns regarding the fairness of the trial, while taking great care not to disclose pieces of evidence that could lead to identifying the informer: [translation] [102] The situation described is worrisome as far as it concerns the fairness of the trial. [103] Wilkerno Dragon is the prosecution's only witness who, in his prior versions, directly tied three of the five accused to specific acts of assault against Raymond Ellis.

This eye witness brings direct evidence of Ernso Théobrun, McClee Charles, and John Tshiamala's participation. [104] What the Court can disclose is that the Prosecution used evidence when it had information in its possession that contradicted the evidence in question or, at the very least, strongly affected its probative value, evidence that it knew, when it was used, could not be disclosed to the Defence because of informer privilege. [105] At this stage, the Court finds that informer privilege prevents disclosure of evidence that has become relevant as a result of the Prosecution's conduct. [106] The Prosecution's conduct is directly at issue, as regards both the undercover agents and the use of evidence at trial that could not

be disclosed to the Defence. [Emphasis added.] [ 81 ] Paragraph 104 sums up the crux of the case and constitutes the foundation of her order. [ 82 ] On December 11, Mtre Michel Pennou took over for the prosecution. He addressed the judge in these words with regard to the letter P-27 and its impact on the fairness of the trial: [translation] First, we are not convinced , Your Honour, that it would be... if a simple instruction or an exclusion of that portion of the evidence would suffice to remedy the unfairness of the trial caused by the reading of the letter to the jury .

And second, we are ready to acknowledge that, should the proceedings resume , unless new elements came, I think, to quite radically change the view we may have of the probative value of P-27, the prosecution would undertake not to use P-27 .

So, those are the submissions I wanted to present on the first point of the issue of the letter signed by Valdano being entered in evidence. [Emphasis added.] [ 83 ] Referring to para. 104 of the December 1 order, Mtre Pennou conceded that a mistrial was unavoidable: [translation] First, I think I might start with paragraph 104 of the order, I think that it is the best way of expressing it, so I will indeed refer to your order. ...

Indeed, Your Honour, we consider that, in fact, that information has shed a new light , put into context the pieces of evidence to which it refers, indeed the... well, put it in a different light, the evidence used by the prosecution, to put it in another context and this, based on information that the defence will not have access to and that could potentially indeed be used for cross-examination purposes. The prosecution acknowledges all those elements.

And, in fact, from a chronological standpoint, when this... the evidence in our possession was used , well, listen, indeed, at that moment, there was awareness of the existence of elements that were, well, that were...privileged information . And I would submit, Your Honour, that as a result of that acknowledgement, the prosecution is ready to... acknowledge that short of a renunciation by the two parties who are concerned by the privilege, the informer and the Crown, the prosecution would undertake not to use the evidence contemplated in paragraph 104 of the order.

I would enter into more detail, you understand, if we were ex parte , but essentially, those are the submissions that we would like to make. I would say that they are somewhat, also, as regards the general comments, they are similar to those that I made regarding P-27. I do not think it conceivable that a different remedy, an exclusion of a

section of the evidence before the jury or a warning, could restore the fairness of the trial in these circumstances. [Emphasis added.] [ 84 ] Thus, the prosecution committed not to use the letter P-27 or the evidence stated by the judge in para. 104 of her December 1 order should there be a new trial.

The prosecution also established the scope of its commitment at the ex parte and in camera hearings held on December 11 and 15, 2008. [8] [ 85 ] The judge thus summarized Mtre Pennou's point of view in her judgment: [translation] [131] On December 11, 2008, the Prosecution admitted to having irremediably impaired the fairness of the proceedings and asked for a mistrial on three grounds: The use of P-27 without having first held a voir dire on its admissibility, acknowledging that this evidence would probably have been declared inadmissible in light of the disproportion between its weak probative value and its great prejudicial effect.

The use of prejudicial evidence and some information during the testimony of Wilkerno Dragon when the prosecution knew of the existence of contradictory elements of evidence that were privileged and would not be disclosed to the Defence because of informer privilege.

The too-long-for-the-jury interruption of the trial and the foreseeable delays were the trial to resume. [132] In order to guarantee that the second trial would be fair and just, the Prosecution concurrently committed not to use the prejudicial evidence at that trial. [133] The Prosecution also asked that the Court determine the lawfulness of the sting operation and render judgment on its motion to have the interim order of December 1, 2008, rescinded. [ 86 ] It is in that context that the judge determined the appropriate remedy and concluded that there was no other solution except to declare a permanent stay of proceedings.

THE JUDGMENT

[ 87 ] The trial judge found that the fairness of the trial had been breached, as admitted by the Crown, and that Crown counsel's conduct had affected the integrity of the justice system essentially for two reasons: [translation] 1- The use of highly prejudicial evidence in the presence of the jury when the Prosecution knew that there was other evidence [9] that, though it may not have clearly contradicted the first, would at least have greatly diminished its probative value, and the Prosecution knew that this other evidence could not be disclosed to the defence because of informer privilege. 2- The use of the letter P-27 to establish that Wilkerno Dragon had been tampered with when the Prosecution knew full well that this evidence was inadmissible. [ 88 ] The trial judge was of the view that, being prohibited from disclosing the contradictory evidence because of informer privilege, the prosecution could not, without acting unfairly, use the letter P-27 as it did. [ 89 ] She was also of the view that using false allegations to obtain an adjournment was part of the general context that had to be taken into account to assess the seriousness of the prejudice and, especially, Crown counsel's misconduct. [ 90 ] She then considered the consequences of the prosecution's use of the letter P-27.

She found that its use resulted in a breach of the right to a full answer and defence, particularly in light of the fact that because the defence was unable to use the privileged contradictory evidence the jury was misled while, concurrently, the evidence of the accused's involvement was strenuous, thereby creating a significant risk of erroneous conviction.

This situation seriously impaired the fairness of the trial and very seriously undermined the integrity of the justice system. [ 91 ] In her view, the prosecution should have notified the defence that there was privileged contradictory evidence that could not be disclosed. The defence could then have brought the motions it deemed appropriate.

The prosecution's failure to do so is an aggravating factor because without the defence's motion to disclose evidence, which had an entirely different purpose, the privileged contradictory evidence would never have come to the Court's attention. [ 92 ] She added that she was concerned with the prosecution's position during the ex parte and in camera hearings, attempting by any means to continue the trial with partial evidence (the letter P-27), which deprived the accused of pieces of evidence that could have been used to contradict this evidence. [ 93 ] As for the letter, she noted that the prosecution acknowledged that it should have asked the Court to determine its admissibility prior to using it.

The prosecution knew that it could not use it without a new debate on its admissibility and it could not have forgotten the comments the Court had made just a few days before. Hence, it was not mistakenly used, nor was it inadvertently disclosed to the jury by the prosecution without a prior decision of the court. [ 94 ] Acknowledging that she should have immediately reacted and prohibited it from being read, the judge added that this did not in any way diminish the prosecution’s primary obligation to act fairly by refraining from filing inadmissible evidence.

She added that her own error, as well as the failure of the defence attorneys to object in a timely manner, did not make the trial less unfair. [ 95 ] She wrote that [translation] "the prejudicial effect of this evidence goes beyond its effect on Wilkerno Dragon’s credibility. It extends to proof of the commission of the offence itself, at the expense of all the accused" . [ 96 ] Moreover, Mtre Bouthillier's false allegations to obtain an adjournment are part of the circumstances impairing the fairness of the trial.

She considered Mtre Bouthillier to have breached the rules of fair play and decency when he deceived the defence and the Court to secure a judicial ruling delaying the case to facilitate a police operation.

Such conduct not only entailed the loss of public confidence in the administration of justice, but also undermined the credibility of the judicial system, which cannot function without absolute trust between judges and attorneys. [ 97 ] As for the appropriate remedy, after having summarized the applicable law, the judge observed that Wilkerno Dragon was a crucial witness for the prosecution and concluded that a mistrial would be insufficient and that the seriousness of the prosecutor's misconduct called for a permanent stay of proceedings.

Here are some excerpts from her judgment on this subject: [translation] [196] The Prosecution’s request for a mistrial implicitly acknowledges that the prejudice caused will be manifested, perpetuated or aggravated through the conduct of the trial or by its outcome . The Court's analysis leads to the same fatal conclusion. ... [202] In the present case, the Prosecution benefited from the application of a number of exceptional mechanisms.

Indeed, Wilkerno Dragon's prior KGB statement, given on December 1, 2005, was admitted into evidence for the proof of its content, as was his testimony at the preliminary inquiry in March of 2007, which took the jury three days to hear. Furthermore, Wilkerno Dragon was declared an adverse witness for the Prosecution, thus enabling the Prosecution to cross-examine him. The Prosecution, however, wanted more.

It wished to strengthen its evidence to convince the jury that the December 1, 2005, version was the only one that should be accepted. [203] To succeed, the Prosecution used informer privilege for its own ends, thereby violating one of the most fundamental guarantees offered by our criminal justice system. It used evidence that it knew to be misleading against five accused in order to have them convicted of second degree murder. [204] The breach of the fairness of the trial was most serious in this case and this conduct seriously undermines public confidence in our justice system.

[205] The institution of the Director of Criminal and Penal Prosecutions is an integral part of our criminal justice system, and citizensmust be able to trust it entirely. It is not a question of punishing the Prosecution. To err is human, but the damage is real and a mistrialwould continue to undermine the integrity of the justice system by neglecting to restore public confidence in our judicial system. [206] To allow proceedings to resume would mean that the courts are ready to close their eyes on such conduct and hope, rather thanensure, that it does not ever happen again.

On this matter, justice requires more than hope, it requires certainty. [207] The Court finds that trust must be restored and can only be so restored through drastic measures that clearly indicate that the justicesystem defends and will always defend the most fundamental values on which it is based and without which it cannot function. [Emphasis added.] [98] The appellant raises several grounds of appeal against this judgment. It essentially argues errors in the application of the lawand in the assessment of the circumstances of the case. Its arguments concern the following aspects of the judgment: 1.

The existence of privileged evidence that is said to be contrary, as per the judge, when some aspects of this evidence are in fact likelyto confirm the evidence of the prosecution instead; 2. The judge's erroneous finding that there is a rule of law prohibiting the use of partial evidence; 3. The judgment does not address how the right to a full answer and defence was violated or how the fairness of the trial was affected; 4. The appellant's knowledge of the inadmissibility of the letter P-27 into evidence was not established; 5.

It was not shown that a mistrial would be insufficient to put an end to the prejudice; 6. The permanent stay of proceedings was not the appropriate remedy because this is not one of the clearest of cases. [99] I find it more appropriate to regroup these arguments under two themes that I will now address: 1) Did the trial judge err in concluding that the appellant's conduct was in breach of

section 7 of the Charter thus making the trial unfairand impairing the integrity of the justice system? 2) Did she err in ordering a permanent stay of proceedings pursuant to subsection 24(1) of the Charter? CONDUCT OF THE PROSECUTION, FAIRNESS OF THE TRIAL ANDINTEGRITY OF THE JUDICIAL SYSTEM [100] The standard of review on appeal of a decision rendered pursuant to subsection 24(1) of the Charter requires deference, aspointed out by LeBel J. in R. v.

Regan, 2002 SCC 12 , [2002] 1 S.C.R. 297: 117 The decision to grant a stay is a discretionary one, which should not be lightly interfered with: “an appellate court will be justified inintervening in a trial judge’s exercise of his discretion only if the trial judge misdirects himself or if his decision is so clearly wrong as toamount to an injustice” (Tobiass, supra, at para. 87; Elsom v.

Elsom, (SCC), [1989] 1 S.C.R. 1367, [p. 362] at 1375).Furthermore, where a trial judge exercises her or his discretion, that decision cannot be replaced simply because the appellate court has adifferent assessment of the facts (Stein v. The Ship “Kathy K”, (SCC), [1976] 2 S.C.R. 802; see also R. v. Oickle,[2000] 2 S.C.R. 3, 2000 SCC 38; R. v. Van der Peet, (SCC), [1996] 2 S.C.R. 507). 118 This does not mean, however, that the trial judge is completely insulated from review.

It is settled law that where the “trial judgemade some palpable and overriding error which affected his assessment of the facts”, the decision based on these facts may be reversed(Kathy K, at p. 808). [101] For the following reasons, I am of the opinion that the trial judge was justified to find that the incidents that took placeperipherally to Wilkerno Dragon's testimony violated the respondents' rights to a full answer and defence and to a fair trial, andundermined the integrity of the justice system thus constituting an abuse of process. [102] I would also point out that, unlike the trial judge, I prefer the term [translation] "privileged contradictory evidence" over[translation] "privileged contrary evidence".

In my opinion, the expression [translation] "contrary evidence" is unnecessarily confusingbecause, for example, it is often used when contradicting a legal presumption. It is especially confusing in this case because, as I willdiscuss later, the privileged evidence was not completely contrary to the rest of the evidence.

Of course, this does not affect the value ofthe trial judgment in any way, but I prefer to provide this note of caution to ensure a better understanding of the following reasons. 1) Privileged contradictory evidence [103] The trial judge characterized the letter P-27 as [translation] "partial" evidence. She was correct. It was partial evidence becausethe contradictory evidence is so closely tied to it that it could be said that they are, both of them, a single piece of evidence.

In otherwords, by using only the letter, the prosecution separated evidence whose confidential part was essential to assessing its probative value. [104] Thus, contrary to the appellant's argument, the judge did not state that there was a general rule prohibiting the use of[translation] "partial evidence". Instead, she quite rightly found that, in this case, the prosecution could not use the letter P-27, itself partof broader evidence that was kept from the defence, without causing the accused serious prejudice.

[105] Having reviewed the censored part of the trial judgment,[10] I have no doubt that the judge could reasonably state, as she did,that the contradictory evidence that was kept confidential contradicted the letter P-27 or, at the very least, was such as it would haveconsiderably diminished its probative value.

I am unable to accept the appellant's argument on this issue, since the few aspects of thecontradictory evidence that are likely to confirm the letter P-27 are insignificant in comparison to those weakening its probative value. [106] The prosecution knew that because of an informer privilege the defence could not be told of the existence of the contradictoryevidence.

Admittedly, this evidence only concerned the probative value of the contents of the letter and thus the credibility of thewitness, but that does not alter the situation because the obligation to disclose includes those pieces of evidence that affect credibility: R.v. Stinchcombe, (SCC), [1991] 3 S.C.R. 326. [107] Furthermore, the impact on the credibility of the witness is not to be ignored because the prosecution sought to convince thejury that he was lying when he testified and that the truth was to be found in his prior statement.

In sum, anything that weakened thecredibility of the witness enhanced the probative value of his prior statement and, by that very fact, the strength of the Crown evidence.Thus, by deciding to use the letter P-27 knowing that it could not communicate the contradictory evidence and by failing to notify thedefence that such evidence existed (without disclosing the exact meaning, of course), the prosecution breached the accused’s rights to afull answer and defence. [108] This

interpretation of the law is confirmed by the PRE-1 directive, published for Crown prosecutors by the Quebec Director ofCriminal and Penal Prosecutions, which provides: [translation] 1 [Obligation to disclose] When prosecuting a penal or criminal offence, the prosecutor is constitutionally bound to communicate to theaccused, or their attorney, any information they have and consider to be relevant, subject to that information being protected. 4 [Relevance of the information] Information is relevant if it falls into one of the following categories:

b) it directly or indirectly refutes evidence or the prosecution's arguments; 7 [Confidentiality and privileges] The prosecutor must protect all confidential or privileged information. More particularly, the prosecutor must protect:

a) any information that would reveal or make it possible to infer the identity of a police informer; ...

h) any other information protected by privilege or whose disclosure is prohibited pursuant to the statute or the common law. ... In order to protect the information covered under the present paragraph, the prosecutor must adopt the method that will protect theinformation while minimally affecting the accused’s right to a full answer and defence. To this end, the prosecutor may, amongst other things:

i) expurgate from a document those portions of information that could affect confidentiality or privilege while communicating theperipheral information included in the document that does not have that effect; ii) delay disclosure until the danger has passed, should it be necessary to do so to protect the life or safety of persons. iii) refuse to disclose the information.

Whatever method the prosecutor uses to preserve confidentiality or privilege, the accused must always be given the minimuminformation required to be informed that some information has been withheld from disclosure. [Emphasis added.] [109] Thus, though information must sometimes be protected, the prosecution is nonetheless under obligation to inform the defence ofthe existence of relevant evidence. In fact, without adding details regarding the contents of the evidence in question, the prosecution mustinform the defence so that it may consequently act, by presenting the requisite motions, for example.

In the present case, Crown counseldid not respect this rule. [110] The Federal Prosecution Service Deskbook is to the same effect: 18.5 Exclusions

The Crown’s obligation to disclose is not absolute: only relevant information need be disclosed, and a withholding of information which is relevant to the defence may be justified on the basis of the existence of a legal privilege. Where Crown counsel decides not to disclose information, defence counsel should be advised of the refusal, the basis of the refusal (i.e., type of privilege alleged) and the general nature of the information withheld to the extent possible. o the defence without jeopardizing the reason for the delay.

However, in some circumstances, even the acknowledgement that information exists (i.e., information related to international relations, national defence or security or information regarding a police informer or an ongoing police investigation) would be injurious to the information sought to be protected. In such circumstances, counsel are expected to exercise good judgment and consult with senior managing lawyers to assess what is an appropriate course of action on a case-by-case basis.

Where disclosure of information is delayed to protect the safety or security of witnesses pursuant to s. 18.4.2 above or to complete an investigation pursuant to s. 18.5.3, Crown counsel must disclose the information as soon as the justification for the delay in disclosure no longer exists. The fact that some disclosure is being delayed should be communicated to the defence without jeopardizing the reason for the delay. [Emphasis added.] [ 111 ] It may in some cases be impossible for Crown counsel to disclose even the mere existence of other evidence.

In such cases, Crown counsel must exercise judgment and in certain instances refrain from presenting partial evidence. That was clearly the case here. [ 112 ] We cannot, as the appellant maintains, consider the contradictory evidence to be analogous to evidence that is lost or destroyed and therefore unavailable. This evidence existed; it had not been lost or destroyed and it was therefore not impossible for the prosecution to produce it.

The possibility was there, and counsel should have acted accordingly. [ 113 ] In short, though the prosecution could not disclose the essence of the contradictory evidence without, in so doing, disclosing the identity of the informer, it nonetheless had to make a choice. Either it could refrain from using the letter P-27, which would have allowed it to refrain from disclosing the contradictory evidence as it would have been deemed irrelevant, or it could use the letter P-27 and then be obliged to inform the judge and seek directives on how best to proceed, in camera and ex parte , in compliance with common law or

section 37 of the Evidence Act. In such a way, the judge could have ensured, with full knowledge of the situation, that the rights of the accused were respected, either by prohibiting the use of the evidence (which would certainly have avoided the reading of the letter), or by setting conditions for its use. [ 114 ] Also, Crown counsel attempted, for several days, to continue presenting his evidence while hiding the existence of the contradictory evidence and then to convince the judge of the appropriateness of his decision not to mention it.

In both cases, the trial judge had to take this conduct into account, exactly as she did. [ 115 ] The appellant also criticizes the trial judge for not indicating how the right to a full answer and defence was breached or how the fairness of the trial was impaired. This ground is without merit.

Paragraphs 102 to 115 of the judgment, which remain confidential but which the appellant was allowed to read, fully explain how the use of the letter with the knowledge that there existed another piece of evidence that could contradict it or substantially diminish its probative value breached the protection afforded to the accused by the Charter and undermined the integrity of the justice system. 2) Reading of letter P-27 [ 116 ] During voir dire, following an objection by the defence, the judge expressed her opinion and gave a warning on at least three occasions to the effect that the letter could not be used in the presence of the jury without first holding another debate to determine its admissibility.

It could not have been any clearer. We also know that the prosecution, without notifying either the defence or the Court, nevertheless asked the witness to read the letter before filing it into the record. [ 117 ] Obviously, the defence could have objected and the judge could have intervened. But that would not have resolved the issue. As the judge indicated, she expected the evidence to be different from that announced during of the voir dire. We cannot expect a judge to know the details of the evidence the parties intend to adduce beforehand.

We can, however, ask that the prosecution assist the judge when it is about to adduce evidence regarding which it knows the Court wants to make a preliminary ruling. [ 118 ] It seems clear that an attorney cannot, without notifying the Court, file a piece of evidence when he or she knows its admissibility to be in question. That is, in fact, precisely what the appendix to the Canadian Bar Association's Code of professional conduct, titled Principles of civility for advocates, states: 54. Counsel should never attempt to get before the court evidence which is improper.

If counsel intends to lead evidence about which there may be some question of admissibility, then counsel should alert opposing counsel and the court of that intention. [11] [ 119 ] I do not mean to suggest that a Crown prosecutor is bound by this principle that was adopted by the Canadian Bar Association, but it certainly demonstrates the existence of a consensus on the issue. Nevertheless, if the principle applies when the admissibility of a piece of evidence is in doubt, then it applies even more so when the advocate knows that the Court has required a debate and a preliminary ruling.

I therefore find that Crown counsel was under obligation to be proactive and first ask the judge to decide the issue of the admissibility of the evidence. [ 120 ] In a different context, though in a similar vein, Robert J. Frater, senior general counsel with the Department of Justice of Canada wrote in Prosecutorial Misconduct , Aurora, Common Law Book, 2009, at 166: … The general rule is thus that the Crown should refrain from mentioning in the opening address any evidence that may be the subject of a voir dire to determine its inadmissibility.

[ 121 ] In my opinion, these comments do apply here. The prosecution should have abstained from presenting the letter to the jury before the judge had decided its admissibility. [ 122 ] The judge was clearly taken aback, given the clarity of her comments at the voir dire. She attempted to pick up the pieces as well as she could by immediately giving a specific instruction. Sometime later, however, she realized that such an instruction would be of little use in light of the extremely prejudicial nature of the evidence.

She wrote the following on the matter: [translation] [161] Indeed, even though this letter was found on the person of Wilkerno Dragon, it has little probative value. We do not know its author since Mr. Dragon denies that it is the handwriting of his friend Valdano.

Also, the allegation of bribery in the amount of $15,000 comes from information given by a third party to the supposed author of the letter. [162] Furthermore, the prejudicial effect of an allegation that one of the witnesses, Wilkerno Dragon, was bribed is significant in the circumstances. [163] Wilkerno Dragon recanted his prior statements incriminating some of the accused.

While the evidence reveals that there may be several reasons why he did this, the fact remains that evidence that tends to establish that one of the an accused has bought his testimony could be used by the jury to conclude that all the accused are guilty of the crime alleged against them. [164] Though the letter notes that the sum was paid by McClee Charles, it is prejudicial to all the accused.

The factual narrative points to a gang having committed the crime, the Prosecution wishes to call expert evidence on the inner workings of street gangs and the membership of some of the accused in a gang, and it is a joint trial. In the circumstances, it is possible that the jury will draw an adverse inference regarding all of the accused from this evidence, even those who were not directly targeted by Wilkerno Dragon’s testimony. [165] The prejudicial effect of this evidence goes far beyond its impact on Wilkerno Dragon’s credibility.

It extends to the commission of the offence itself, to the detriment of all the accused. [166] The use of this letter by the Prosecution without seeking a ruling on its admissibility was not inadvertent.

The letter allegedly signed by Valdano was adduced before the Court, in the absence of the jury, on November 3, 2008, during VD-10 in support of the Prosecution's motions to have the prior statements of Wilkerno Dragon admitted into evidence as a principled exception to the hearsay rule and to have him declared an adverse witness. [167] At that time, the Defence objected to the letter being filed because the witness was not its author.

The Court found that the letter was relevant within the voir dire, but added that very different issues would be raised regarding its admissibility before the jury. [168] The Prosecution knew when it used the letter before the jury that its admissibility needed to be debated beforehand. [169] Admittedly, the Defence did not object to the letter being read by Wilkerno Dragon in the presence of the jury and the Court did not interfere to compel a voir dire as it should have done. [170] This failing on the Court's part does not diminish the Prosecution's foremost obligation to act fairly by refraining from presenting evidence that it knows to be inadmissible.

The breach of fairness is that much more serious because the Prosecution knew that a debate needed to be held concerning the admissibility of this evidence. [171] The Court's failure to intervene does not make the trial any less unfair to the accused . The prejudice they suffered is the same. [12] [Emphasis added.] [ 123 ] The judge observed that, in sum, it was the prosecution's theory that the murder was the result of belonging to a gang since it was committed by gang members in retaliation for the murder of one of their own. Consequently, any attempt to buy Mr.

Dragon's silence, even by a single one of the accused, could have a prejudicial effect on all the others if they were also members of that same gang. There was thus a serious risk that the letter could be used to convict the accused and not merely to weaken the credibility of Mr. Dragon when he stated that he did not recognize the accused. This inference drawn by the judge is reasonable and cannot be questioned.

As trial judge, she was, in fact, in the best position to draw such a conclusion. [ 124 ] Moreover, I understand from her comments that she realized that this evidence should have been rejected because of its extremely weak probative value in relation to the prejudice it could cause, so that her instruction was not, in all likelihood, the appropriate solution. I share her opinion. [ 125 ] The appellant also disputes the factual finding of the judge, who is of the view that the prosecution knew that the letter P-27 was inadmissible but nonetheless adduced it.

I do not accept the appellant's argument. [ 126 ] This letter was not admissible. In addition to the prejudice it was likely to cause, it had no probative value, as the judge explained. It is inaccurate to submit, as did the appellant, that [translation] "its inadmissibility stems from an exercise of discretion resting with the judge to exclude evidence whose prejudicial effect outweighs its probative value".

On the contrary, this letter was hearsay evidence, the veracity of which was not acknowledged by the witness and which was written by a stranger who related facts of unknown origin, reporting the comments of another person.

In these circumstances, I find it very difficult to accept the appellant's submission, which seems to maintain that the document first had to be read before the jury before being, in all likelihood, excluded by the judge exercising her discretionary power. [ 127 ] If we add to this the existence of contradictory evidence, the content of which will never be revealed to the defence, and the prosecution's conduct in seeking an adjournment under false pretences to enable a meeting with a witness in the process of testifying to make him change his testimony, [13] I fail to see how the judge erred in concluding that the prosecution's conduct made the trial unfair.

3) Concession by the prosecution at trial [ 128 ] Finally, the appellant now appears to question the very existence of a breach, despite its own suggestion that there be a mistrial. In making this suggestion, the appellant may have wanted to [translation] "make the best of a bad situation", but that does not give it licence to renege on the concession it made at trial whereby there should be a mistrial as a result of the Crown counsel's conduct and that it undertook not to use exhibit P-27 in a new trial. This, in my opinion, shows that it admitted that the rights of the accused were violated.

The concession made by the Crown counsel during the ex parte and in camera hearing of December 11, 2008, [14] mainly regarding the information that would not have been available to the accused during the cross-examination of Mr. Dragon, also shows that the fairness of the trial was irremediably impaired. [ 129 ] In sum, the judge could reasonably conclude that the rights of the accused had been violated by the conduct of the prosecution, which constituted an abuse of process in the present case. APPROPRIATE REMEDY 1) Criteria used by the courts [ 130 ] In R. v.

Gorenko , [2005] R.J.Q. 2552 , 2005 QCCA 1002 , at para. 32 , this Court stated the rules governing a Court's power to sanction the prosecution's abusive conduct through a stay of proceedings: [translation] 1) There no longer exists a distinction between the common law doctrine of abuse of process and the requirements of the Canadian Charter of Rights and Freedoms since an individual's right to a fair trial and the general reputation of the penal justice system are core concerns underlying the abuse of process doctrine acknowledged in both the common law and the Charter .

Thus, when the courts must determine whether there has been an abuse of judicial process, the analyses performed according to common law and the Charter converge. 2) A stay of proceedings is most often sought to correct the injustice suffered by a citizen because of the State's reprehensible conduct. There is, however, a small "residual category" of instances where this type of stay might be justified.

This residual category does not relate to conduct impairing the fairness of the trial or other procedural rights, but instead addresses: ...the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process. 3) A permanent stay of proceedings is a drastic remedy to an abuse of process.

It must therefore be reserved for the most serious or clearest of cases ; 4) Regardless of whether the abuse has caused prejudice to the accused because of an unfair trial or impaired 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 . 5) The first test is of critical importance.

It reflects the prospective nature of a stay of proceedings as a remedy. It does not redress a past wrong. It aims to prevent the perpetuation of a wrong that, if left alone, will continue to trouble the parties and the community as a whole in the future. When the abuse falls into the residual category, a stay of proceedings will generally constitute an appropriate remedy if the abuse is likely to continue or recur.

It is only in exceptional, very rare, cases that the impugned conduct will be so serious that the very act of continuing the trial would be troubling. 6) In this context, any risk of recurring abuse should the trial be continued must be assessed as against potential remedies that would be less drastic than a stay of proceedings.

Once it has been established that the abuse will continue to undermine the judicial process and that no remedy other than a stay will correct the problem, the judge can exercise his discretionary power to order a stay. 7) If there remains a degree of uncertainty as to the possibility of making the prejudice disappear, in light of the prospective nature of the first criterion, the judge may then apply the third criterion, that is, to balance the interests served by the granting of a stay of proceedings as against society’s interest in having a final decision on the merits.

In some situations, society’s irresistible interest in seeing a debate on the merits may bring about a conclusion that the allegation of abuse of process cannot justify a judicial stay of proceedings.

With regard to the particular facts of cases brought before the Supreme Court, that court has determined that revocation of citizenship for war crimes as well as sexual assault allegations against vulnerable young girls and women were cases where the continuation of the trial did not take on an ongoing appearance of injustice. 8) An appellate court may not intervene lightly in a trial judge’s decision of whether to order a stay of proceedings because this remedy is discretionary.

An appellate court is justified to intervene in the assessment of this discretionary power only if the trial relied on considerations that were erroneous in law or if the decision was so erroneous as to create an injustice. An appellate court many not substitute its own decision for that of the trial judge merely because of its diverging assessment of the facts. 9) It is well established, however, that the decision may be modified if the trial judge committed palpable and overriding errors that had an effect on his assessment of the facts.

The same holds true if the trial judge has based the decision to stay the proceedings on errors of law by failing to consider key elements of the analysis.

[Citations omitted.] [Emphasis added.] [131] Are we faced with one of the most serious or clearest of cases? Would another remedy, a less drastic one, have been sufficient?These questions, which must now be answered, must be considered while keeping in mind that an appellate court cannot interfere lightly,in light of the discretionary nature of the power exercised by the court below. [132] In R. v.

Power, (SCC), [1994] 1 S.C.R. 601, at 615, L'Heureux-Dubé J. provided the following definition of "clearest of cases", an expression used in only the rarest situations: I, therefore, conclude that, in criminal cases, courts have a residual discretion to remedy an abuse of the court's process but only in the"clearest of cases", which, in my view, amounts to conduct which shocks the conscience of the community and is so detrimental to theproper administration of justice that it warrants judicial intervention.

To conclude that the situation "is tainted to such a degree" and that it amounts to one of the "clearest of cases", as the abuse of processhas been characterized by the jurisprudence, requires overwhelming evidence that the proceedings under scrutiny are unfair to the pointthat they are contrary to the interest of justice. As will be developed in more detail further in these reasons, the Attorney General is amember of the executive and as such reflects, through his or her prosecutorial function, the interest of the community to see that justice isproperly done.

The Attorney General's role in this regard is not only to protect the public, but also to honour and express the community'ssense of justice. Accordingly, courts should be careful before they attempt to "second-guess" the prosecutor's motives when he or shemakes a decision. Where there is conspicuous evidence of improper motives or of bad faith or of

an act so wrong that it violates theconscience of the community, such that it would genuinely be unfair and indecent to proceed, then, and only then, should courtsintervene to prevent an abuse of process which could bring the administration of justice into disrepute. Cases of this nature will beextremely rare. [133] In R. v. Regan, supra, LeBel J. notes that this form of remedy is drastic and constitutes the "ultimate remedy": [53] A stay of proceedings is only one remedy to an abuse of process, but the most drastic one: “that ultimate remedy”, as this Court inTobiass, supra, at para. 86, called it.

It is ultimate in the sense that it is final. Charges that are stayed may never be prosecuted; analleged victim will never get his or her day in court; society will never have the matter resolved by a trier of fact.

For these reasons, astay is reserved for only those cases of abuse where a very high threshold is met: “the threshold for obtaining a stay of proceedingsremains, under the Charter as under the common law doctrine of abuse of process, the ‘clearest of cases’” (O’Connor, supra, at para. 68). [134] Moreover, even if in a large majority of cases the emphasis is placed on the impact of the abuse on the fairness of the trial, theabuse in question may sometimes affect the integrity of the justice system more generally. That is the very limited residual categorydescribed by L'Heureux-Dubé J. in R. v.

O'Connor, (SCC), [1995] 4 S.C.R. 411, at para.73, which is referred to in para.32(2) of Gorenko, supra. [135] Nevertheless, whatever the case may be, two criteria must be met in order for a stay to be ordered, as LeBel J. notes in R. v.Regan, supra: [54] Regardless of whether the abuse causes prejudice to the accused, because of an unfair trial, or to the integrity of the justice system, astay 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 itsoutcome; (2) no other remedy is reasonably capable of removing that prejudice. [O’Connor, at para.75] The Court’s judgment in Tobiass, at para. 91, emphasized that the first criterion is critically important.

It reflects the fact that a stay ofproceedings is a prospective rather than a retroactive remedy. A stay of proceedings does not merely redress a past wrong.

It aims toprevent the perpetuation of a wrong that, if left alone, will continue to trouble the parties and the community as a whole, in the future. [136] The first criterion is critically important because a stay of proceedings does not seek to redress the prejudice suffered by theaccused or to punish the prosecutor, but rather "to prevent the perpetuation of a wrong that, if left alone, will continue to trouble theparties and the community as a whole in the future" (R. v. Tobiass, (SCC), [1997] 3 S.C.R. 391 at para. 91).

In otherwords, the unacceptable conduct of the prosecution cannot, in itself, justify a stay of proceedings. The prejudice caused must have noother remedy. Per LeBel J. in R. v. Taillefer; R. v.

Duguay, 2003 SCC 70 , [2003] 3 S.C.R. 307 at para. 121: "In order to obtaina stay of proceedings, the accused must further demonstrate that the infringement of the right is irreparable." [137] The possibility of exceptional situations falling under the residual category, where the extreme seriousness of the misconduct issufficient to trouble the sense of justice and justify a stay of proceedings without the misconduct having been proved to be likely tocontinue, cannot be denied. This, however, will only very rarely be the case: ...

For a stay of proceedings to be appropriate in a case falling into the residual category, it must appear that the state misconduct is likelyto continue in the future or that the carrying forward of the prosecution will offend society’s sense of justice. Ordinarily, the lattercondition will not be met unless the former is as well –– society will not take umbrage at the carrying forward of a prosecution unless itis likely that some form of misconduct will continue There may be exceptional cases in which the past misconduct is so egregious thatthe mere fact of going forward in the light of it will be offensive.

But such cases should be relatively very rare. (R.v. Tobiass, supra, para.91). [Emphasis added.] [138] The Supreme Court then goes on to give the example of evidence fabricated by the authorities and then introduced into thecrime scene.

[ 139 ] That said, let us consider the trial judge's assessment of these issues. 2) Re-examination of the seriousness of Crown counsel’s misconduct as against the appropriate remedy. [ 140 ] The trial judge first found that the prosecution's misconduct both made the trial unfair and affected the integrity of the justice system: [translation] [204] The breach of procedural fairness here is one of the most serious and this conduct seriously undermines public confidence in our justice system. [ 141 ] Then, she found that the two criteria—an ongoing prejudice and the absence of another appropriate remedy—had been met: [translation] [196] The request for a mistrial by the Prosecution implicitly acknowledges that the prejudice caused will be manifested, perpetuated or aggravated through the conduct of the trial or by its outcome.

The Court's analysis leads to the same fatal conclusion. [207] The Court finds that trust must be restored and can only be so restored through drastic measures that clearly indicate that the justice system defends and will always defend the most fundamental values on which it is based and without which it cannot function. [ 142 ] The

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