The Supreme Court of Canada building is seen in Ottawa.DAVE CHAN/The Globe and Mail
Throwing out serious criminal charges because of abusive prosecution tactics should happen only in rare, shocking cases, the Supreme Court said Friday in ordering a new trial for two Quebec men accused of 22 guns, drugs and organized-crime offences.
Antal Babos and Sergio Piccirilli were arrested in 2006 as part of Project Cleopatra, an RCMP investigation into marijuana trafficking linking individuals in the aboriginal community of Kanesatake to Hell's Angels in Montreal and Trois Rivières. That investigation has resulted in several convictions, including that of a former police officer.
The judge at their trial found that two separate prosecutors had abused their rights, one by threatening to lay more charges unless they pleaded guilty, and another by improperly obtaining medical records of Mr. Piccirilli. The judge also found that two police officers had improperly discussed their testimony on a key point involving a firearm ahead of time.
Lawyers for the two men compared their treatment to a groundbreaking 2001 case in which two Canadians, Harry Cobb and Allen Grossman, were fighting extradition to the United States on charges of telemarketing fraud. The Supreme Court upheld a judge's order that the extradition case be halted after a U.S. prosecutor hinted publicly that unco-operative fugitives would be raped in prison, and a judge said they would be subject to the maximum sentence available.
But Justice Michael Moldaver, writing for the majority in a 6-1 ruling, called the current case "a far cry" from the earlier extradition case. He suggested two of the charges were blown out of proportion by the trial judge. He doubted the police officers colluded, but if they had, the judge could simply have excluded the evidence about the firearm that was at issue. He said the prosecutor who had obtained medical records had apparently received them from Mr. Piccirilli's doctor, and had promptly informed Mr. Piccirilli's lawyer about this.
Of the most serious abuse, involving threats of laying more charges, he agreed that the prosecution had acted outside the bounds of normal plea-bargaining. But he said the prosecutor who made the threat was no longer on the case. He also noted the men had not mentioned it for 18 months.
"The Crown's threatening conduct, while reprehensible, did not approximate the type of shocking conduct needed to justify a stay."
He said the public deserves to see the men put on trial.
"Society has a profound interest in seeing justice done by having the guilt or innocence of [Mr. Babos and Mr. Piccirilli] determined through a full trial on the merits."
Justice Rosalie Abella, in a stinging dissent, said the prosecutor who threatened to lay more charges unless the two men pleaded guilty put the public's faith in the justice system at risk.
"A Crown who makes threats intended to bully an accused into foregoing his or her right to a trial, takes fatal aim at the heart of the public's confidence in that integrity."
Graham Clark, a Toronto criminal defence lawyer, suggested the court is too tolerant of state misconduct. He cited the court's quick dismissal of the police collusion finding. "It suggests that there's deference to a mode of policing and prosecution and a tolerance for what I see as a more U.S.-style of investigation, detection and prosecution."
Don Stuart, a Queen's University law professor in Kingston, Ont., called the ruling "another instance of the Supreme Court moving to the right." The court is increasingly cautious about stopping proceedings in abuse of process cases, he said. He added that the case shows the difficulties of holding prosecutors accountable for misconduct.