R v Scott [1990] 3 S.C.R. 979: Stay and recommencement of proceedings -- Stay sought by Crown to avoid unfavourable ruling -- Proceedings subsequently reinstituted -- Whether Crown's action violates s. 7 of the Canadian Charter -- Stay sought by Crown to avoid disclosing identity of police informer -- Whether accused denied right to make full answer and defence

Present: Dickson C.J and Lamer C.J. and Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and McLachlin JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO

Criminal law -- Abuse of process -- Stay and recommencement of proceedings -- Stay sought by Crown to avoid unfavourable ruling -- Proceedings subsequently reinstituted -- Whether stay and recommencement of proceedings constituted abuse of process -- Whether Crown's action violates s. 7 or s. 11(d) of the Canadian Charter of Rights and Freedoms -- Criminal Code, R.S.C. 1970, c. C-34, s. 508.

Constitutional law -- Charter of Rights -- Fundamental justice -- Stay and recommencement of proceedings -- Stay sought by Crown to avoid unfavourable ruling -- Proceedings subsequently reinstituted -- Whether Crown's action violates s. 7 of the Canadian Charter of Rights and Freedoms -- Criminal Code, R.S.C 1970, c. C-34, s. 508.

Constitutional law -- Charter of Rights -- Fair trial -- Stay and recommencement of proceedings -- Stay sought by Crown to avoid disclosing identity of police informer -- Proceedings subsequently reinstituted -- Whether accused denied right to make full answer and defence -- Whether Crown's action violates s. 11(d) of the Canadian Charter of Rights and Freedoms -- Criminal Code, R.S.C. 1970, c. C-34, s. 508.

Criminal law -- Procedure -- Witness appearing in courtroom after Crown's final submissions -- Whether trial judge erred in refusing to hear evidence of witness where accused claiming to have been entrapped.

Criminal law -- Defence -- Entrapment -- Manner in which entrapment claim should be dealt with by the courts.

Criminal law -- Procedure -- Witness failing to appear in court although served with subpoena -- Whether trial judge erred in failing to issue material witness warrant.

Evidence -- Privilege respecting police informers -- Defence counsel seeking to question police officer as to identity of informer -- Refusal by trial judge to permit disclosure of informer's identity -- Whether accused denied right to make full answer and defence.

Defence counsel in the course of cross-examination posed a question which would have led to disclosure of the identity of a police informer. Crown counsel objected to the question as being irrelevant and exercised her discretion to stay the proceedings under s. 508(1) of the Criminal Code. The proceedings were then re-instituted under s. 508(2). The defence was unsuccessful in its application to stay the proceedings for abuse of process at this stage and at the commencement of the new trial. During the course of the new trial, defence counsel again tried to put a line of questions which would ultimately identify the informer, arguing that it was relevant to the issue of entrapment. The trial judge held the disclosure of the informer's identity unnecessary because there had been no evidence of entrapment to this point. After the Crown had completed its case, defence counsel advised that he would not be calling evidence and then, at the suggestion of the trial judge, sought and was granted an adjournment in order to have a witness located and served with a subpoena. The witness failed to appear at the resumption of the trial and the appellant's request that a material witness warrant be issued pursuant to s. 626 of the Code was denied. Following this ruling, and after counsel for the Crown and a co-accused had completed their submissions, the witness appeared in the courtroom. The trial judge refused the appellant's request to re-open the case to allow the witness to testify because his evidence would still be immaterial absent other evidence of entrapment. The appellant was convicted on four counts of trafficking in a narcotic and one count of possession for the purpose of trafficking. His appeal to the Court of Appeal for Ontario was dismissed.

The issues raised in this appeal are: (1) whether the stay sought at the first trial followed by the commencement of fresh proceedings by the Crown constituted an abuse of process; and (2) whether the appellant was precluded from making full answer and defence to the charges.

Held (Lamer C.J. and La Forest, Sopinka and McLachlin JJ. dissenting): The appeal should be dismissed.

Per Dickson C.J. and Wilson, L'Heureux-Dubé, Gonthier and Cory JJ.: The Crown acted properly in staying the proceedings to protect the identity of the informer and in moving at the first reasonable opportunity to renew the proceedings. It could not be said that the appellant was prejudiced in any way by delay in his trial as he was at all times in custody on another matter. Neither the stay nor the re-institution of the proceedings constituted an abuse of process or an infringement of any Charter rights.

The trial judge made no error in refusing to permit cross-examination that would have revealed the identity of the police informer. None of the exceptions to the rule against disclosure applies to the case at bar. The alleged informer could not have been a material witness to any of the incidents comprising the counts of the indictment. There was no evidence upon which an argument could be made that the informer acted as an agent provocateur. Nor was any attack made on the validity of the search warrant that might have required a disclosure of the informer's identity.

In refusing to issue the material witness warrant requested by defence counsel, the trial judge exercised her discretion in accordance with the appropriate principles of law and made no error in this ruling that could justify overturning her discretion. She was not satisfied that the prerequisite conditions to the issuance of the warrant had been fulfilled or that the evidence of the witness would be material.

It was not unreasonable for the trial judge to exercise her discretion and refuse to permit the witness to be called when he appeared in the courtroom following the final submissions of counsel for the Crown and for the co-accused. No explanation was offered as to the way in which the evidence of the witness would be relevant. The trial judge had an obligation to ensure that the trial proceeded in a reasonably expeditious and orderly manner. She had to take into account, not simply the effect of delay and inconvenience, but the possibility of prejudice to the co-accused. Furthermore, the evidence adduced made it apparent that the appellant could not have met the burden of showing on the balance of probabilities that entrapment occurred.

Per Lamer C.J. and La Forest and McLachlin JJ. (dissenting): The conduct of the Crown in staying the proceedings to avoid an adverse judicial ruling and then recommencing them constituted an abuse of process. The use of the power to stay, combined with re-institution of proceedings as a means of avoiding an unfavourable ruling, gives the Crown an advantage not available to the accused. The normal and proper operation of the judicial system contemplates that judicial errors be corrected through the appeal process. The fact that the Crown acted in good faith is insufficient to justify an abuse of process.

The public has an interest in prosecuting crimes as well as in protecting the identity of informers. Both interests could have been met had the Crown adopted the alternative of calling no further evidence and appealing the resulting acquittal. In the circumstances, it cannot be said that the public interest justified or offset the affront to justice and fairness involved in the course the Crown chose to follow. As the case for abuse of process had been established, it was unnecessary to consider whether a breach of s. 11(b) of the Charter had occurred.

The trial judge erred in refusing to hear the witness on the issue of entrapment. The issue of entrapment is to be determined separately from the issue of guilt or innocence and the only question is whether the entrapment constitutes an abuse of process requiring that the proceedings be stayed or set aside. Implicit in the notion of entrapment is the concession of having committed at least the actus reus of the offence and fairness suggests that the accused should not be obliged to call evidence on this question until after the principal issue of guilt or innocence has been determined. It was far from clear that the witness's evidence would have been irrelevant and the appellant was entitled to call evidence relevant to entrapment after the verdict on his guilt.

The Crown's abuse of process could not be rectified by a new trial and a stay of proceedings should be entered.

Per Sopinka J. (dissenting): The reasons of Cory J. concerning s. 508 of the Criminal Code and the cross-examination of the police officer were agreed with. The trial judge properly exercised her discretion in refusing to issue a material witness warrant. The conclusion of McLachlin J. with respect to the propriety of the trial judge's refusal to reopen the case was agreed with. Although the trial judge erred in refusing to reopen the case, there was no need for a new trial. The substantive verdict of guilty did not need to be disturbed since the evidence relevant to entrapment is not relevant to culpability. In order to rectify the error and restore the appellant's opportunity to make full answer and defence, it was only necessary to vacate the formal conviction and remit the matter to the trial judge for an evidentiary hearing on the issue of entrapment.

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