R. v. Nguyen, 2020 BCPC 123

Citation: R. v. Nguyen 2020 BCPC 123 Date: 20200619 File No: 67402-1 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. THE ANH NGUYEN RULING ON APPLICATION OF THE HONOURABLE JUDGE K. MUNDSTOCK Counsel for the Crown: C. Johnson, by telephone Counsel for the Accused: K. Beatch, by telephone Place of Hearing: Chilliwack , B.C. via teleconference Date of Hearing: February 26, 2020 Date of Judgment: June 19, 2020 Overview

[1] Mr. Nguyen applies for a mistrial and a judicial stay on Information 67402-1. Mr. Nguyen is charged with assault andaggravated assault of Mr. Lieu on September 8, 2017. [2] Mr. Lieu began his testimony on July 17 and carried over to July 18, 2019 when counsel for Mr. Nguyen commenced cross-examination. Towards the end of the day on July 18, and before cross-examination was complete, Mr. Nguyen made an application for amistrial. That application was adjourned for hearing on February 26, 2020. Position of the Parties [3] It is Mr. Nguyen’s view that the conduct of the prosecutor in influencing Mr.

Lieu’s testimony, both in direct and in cross-examination, renders the trial unfair. Mr. Nguyen points to three different types of conduct that result in Mr. Lieu’s testimony beinginfluenced: 1. The prosecutor had conversations with police officers outside the courtroom, during the trial, which Mr. Lieu may haveoverheard; 2. The prosecutor, during Mr. Lieu’s direct testimony in court and in the presence of Mr. Lieu, referred to the testimony of a priorwitness; and 3. The prosecutor occasionally voiced her objections and the basis for them in the presence of Mr.

Lieu thereby giving cues to Mr.Lieu about his testimony. [4] Counsel for Mr. Nguyen refers to the case of Re Ewing and Kearney and The Queen, (BC SC). The case,although markedly different on the facts, stands for the proposition that the duty of ensuring an accused has a fair trial rests with the trialjudge. Mr. Nguyen asks that I either declare a mistrial or order a judicial stay of proceedings. [5] Crown counsel, who was not counsel at trial, argues that while he does not dispute there are some issues with the conduct ofthe prosecutor during the trial, there are other remedies available to the accused.

The accused may argue credibility, reliability andultimately the issue of weight to be given to the evidence that may have been tainted by the conduct of the prosecutor. There has beenevidence tendered that is not affected by conduct of the prosecutor that could support a conviction. Crown counsel argues the remediessought by Mr. Nguyen are extreme and those remedies should only be granted in the clearest of cases where the fairness of trial cannotbe guaranteed. Further, Mr. Lieu is still under cross-examination and defence counsel can explore these issues further if he chooses.

The Law [6] An accused’s right to a fair trial is a principle of fundamental justice that is guaranteed under s.7 of the Charter. The trialjudge has a duty to ensure the trial is fair. An accused has the right to a fair trial not a perfect trial. [7] The case law is very clear that a trial judge has the discretion to declare a mistrial and a judicial stay but that discretion mustonly be exercised in the clearest of cases and where no other remedial measures are available. The remedy of a mistrial and a judicialstay should be a last resort. Both remedies are drastic.

With a mistrial, the Crown may choose to proceed with a second trial, whichpresents further complications and issues for both the complainant and the accused. The remedy of a judicial stay is the most drastic ofremedies and the applicant must meet a very high threshold to justify that order. [8] I could find no cases in which the facts are similar to the facts before me.

Nevertheless, the case law is instructive with respectto the legal tests applied to various types of instances where the fairness of trial is questioned. [9] R. v .Piccirilli, 2014 SCC 16 is a case in which the accused applied for a judicial stay on grounds of abuse of process. Theaccused was charged with firearms offences, production and trafficking of methamphetamines. The accused complained about threeforms of state conduct: 1. Threats levied by Crown counsel to pursue additional charges if the accused did not plead guilty; 2.

Collusion by two police officers to mislead the court about the seizure of a firearm; and 3. Crown counsel improperly obtained the accused’s medical records from the pre-trial detention center. [10] The trial judge granted a judicial stay of proceedings. [11] Justice Moldaver, writing for the court, reviewed the law with respect to the application of a judicial stay in cases involvingabuse of process. I note the accused in that case did not take the position he could not have a fair trial.

Rather, the accused argued theconduct of the state was so egregious that the case falls into the clearest of cases in which a stay of proceedings is necessary to preserveand protect the integrity of the justice system. [12] Piccirilli is useful because it provides guidance on the principles to consider in ordering a judicial stay. At paragraphs 30 and31, Moldaver, J. states the following: A stay of proceedings is the most drastic remedy a criminal court can order (R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297 (S.C.C.), atpara. 53). It permanently halts the prosecution of an accused.

In doing so, the truth-seeking function of the trial is frustrated and thepublic is deprived of the opportunity to see justice done on the merits. In many cases, alleged victims of crime are deprived of their dayin court. Nonetheless, this Court has recognized that there are rare occasions – “the clearest of cases” – when a stay of proceedings for an abuse ofprocess will be warranted (R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411 (S.C.C.), at para. 68). These cases generally fallinto two categories: (1) where state conduct compromises the fairness of an accused’s trial (the “main” category); and (2) where state

conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the “residual” category) (O’Connorat para. 73). The impugned conduct in this case does not implicate the main category. Rather it fails squarely within the latter category. [13] The court goes on in paragraph 32 to set out in the legal test, which is applicable to both categories of conduct, to determine if astay of proceedings is warranted:

(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuatedor aggravated through the conduct of the trial, or by its outcome” (Regan, at para. 54);

(2) There must be no alternative remedy capable of redressing the prejudice; and

(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interestsin favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest thatsociety has in having a final decision on the merits” (ibid., at para 57). [14] Piccirilli is different on its facts.

The Supreme Court of Canada found that the trial judge erred in granting the stay ofproceeding because the trial judge erred in assessing the forms of state misconduct, failed to consider alternative remedies and failed tobalance the need for a stay of proceedings against society’s interest in a trial on the merits. [15] In R. v. Paterson, (BC CA), 1998 CarswellBC 122, the BC Court of Appeal considered whether a trialjudge sitting with a jury erred in not granting a mistrial.

The accused was on trial for murder and argued that his right to a fair trial wasviolated because the jury may have been influenced by contents of a media publication. The trial judge denied the mistrial applicationand was upheld on appeal. The court affirmed its earlier decision in R. v.

Lawson, (1991) (BC CA), 1 B.C.A.C. 204 inwhich the court wrote at paragraph 209: In the course of considering the authorities given to me by counsel, I have had to examine cases of stays of proceedings, mistrials, and ofabuse of process which are all in one way or another closely related to what I would call the requirements of fundamental justice asoutlined in the Charter. There is one common denominator: all these cases say that these powers are to be exercised only in the clearestof cases. It is easy to see why this is.

The remedy contemplates what I will call “a fatal wounding of the trial process”, a wounding tothe administration of justice which cannot be cured by remedial measures. Analysis [16] I have considered the three instances of misconduct argued by Mr. Nguyen and their cumulative impact on the fairness of trial. However, it is convenient to deal with the first two instances separately from the third. [17] With respect to the first two instances of misconduct alleged by Mr.

Nguyen, I find that I cannot agree that they are examples inwhich I can conclude that there has been a “fatal wounding of the trial process” such that a mistrial or a judicial stay is clearly the onlyremedy. The conduct, conversing with officers about judicial rulings when the complainant may have overheard and referring to anotherwitnesses’ testimony in the presence of the complainant, are not fatal to the overall fairness of the trial. Mr.

Nguyen is free to argue theweight of the ensuing evidence once all the evidence is before me at the conclusion of the trial. [18] The most serious of the instances of prosecutor misconduct are the occasions when the prosecutor voiced her objections and thebasis for them in the presence of the complainant and used body language that could convey cues to the complainant. An example of thisconduct occurred during the cross-examination of Mr. Lieu when defence counsel put to Mr. Lieu a conversation he was alleged to havehad with the RCMP officer who took Mr. Lieu’s original complaint.

When the conversation was first put to Mr. Lieu, Crown counselobjected. Mr. Lieu was excluded from the courtroom; I heard counsel’s arguments and made a ruling against the Crown’s objection. Defence counsel continued with the line of questioning. At one point, rather than state an objection, the prosecutor interjected and statedin the presence of Mr. Lieu the basis for opposition to a question asked. The following exchange is found in the transcript dated July 18,2019, page 90, lines 26 to 31: Ms. Mitchell-Banks: It’s an RTCC. It’s not even his words. It’s a police officer’s narration. Mr. Beatch: If we – Ms.

Mitchell-Banks: So yes, I’m – The Court: Okay, just hold on – Ms. Mitchell-Banks: -- It’s not fair. The Court: -- a second. Hold on. Mr. Lieu, could you please leave the courtroom again, please. [19] In Mr. Lieu’s absence, I affirmed my earlier ruling on the use of the conversation between Mr. Lieu and the RCMP Constablerecorded in the RTCC. I then directed the prosecutor regarding the conduct that I took issue with. The transcript records the directionmade.

Unfortunately, Crown counsel continued to interject and speak over me so I will not refer to the prosecutor’s many interruptionsand refer to my findings at page 91 to 93 of the July 18, 2019 transcript: The defence is entitled to put that conversation to the witness.

What you are doing is by interrupting in the way that you are, carrying onwith the body language that you are right next to the witness, is you’re giving cues to the witness in terms of how he should beresponding to these questions… … …what you are doing is interfering with the right of cross-examination. … ….I’ve given my ruling already with resect to this. I don’t see that the question is unfair. But what I do see is unfair is the body

language that you’re demonstrating right next to the witness during cross-examination...and giving…cues to the witness that there’s something wrong with what it is that he’s saying…so that can certainly be interpreted by the way that you are exhibiting yourself next to the witness. And that needs to stop. … So if there is another objection of that nature, probably the best way to deal with it, Ms. Mitchell-Banks, is to stand up and tell me there’s an objection.

As opposed to voicing that concern while the witness is still in the witness box…we’ll have the witness go out and we’ll deal with it in the absence of the witness. [ 20 ] It is apparent from the transcript that my findings are that the prosecutor was conducting herself in an improper fashion. The question is whether this conduct results in a “fatal wounding of the trial process” that cannot be cured by any remedial measures. [ 21 ] One remedial measure may be that if Mr.

Lieu does not adopt the statements put to him that are recorded by the officer, defence counsel may call the officer to prove the statements. [ 22 ] Another remedial measure may be that defense counsel cross-examines Mr. Lieu on the influence that the prosecutor may have had upon his evidence. Cross-examination of Mr. Lieu has not completed. [ 23 ] Other remedial measures may be that Mr. Nguyen, in closing argument, argues that Mr. Lieu lacks credibility or that his testimony is unreliable such that portions of it should be given little weight. Mr. Nguyen may also chose to argue that Mr.

Lieu’s testimony has been tainted to the point where the court should not accept it at all. [ 24 ] I raise these as possible remedies only and I am in no way suggesting to defence counsel, who is very experienced, what he should or should not do in the course of the trial. [ 25 ] I agree with Mr. Nguyen that the conduct of the prosecutor is concerning. I have clearly set out my concerns about the behaviour of the prosecutor and I have directed such conduct to stop. I have reminded the prosecutor how to properly make an objection.

In short, the conduct of the prosecutor was noticed by me and addressed. [ 26 ] When I consider the three instances of misconduct raised by Mr. Nguyen and their cumulative impact, I reach the same conclusion: the trial process has not been fatally wounded. [ 27 ] I find that there are other possible remedies available to Mr. Nguyen and I am confident that these remedies will ensure that he receives a fair trial.

I do not find that this case fits into the category of the clearest of cases in which there has been a “fatal wounding to the trial process” and that there are no alternative remedies available other than a mistrial and a judicial stay. I am a judge sitting alone and I am alive to the issues. I am capable to sifting through the evidence tendered and, where necessary, assigning weight to testimony. [ 28 ] Accordingly, Mr. Nguyen’s application is dismissed. _____________________________ The Honourable Judge K. Mundstock Provincial Court of British Columbia