R. v. Scott, (1990) 116 N.R. 361 (SCC)

• Judge: Dickson, C.J.C.*, Lamer, C.J.C.*, Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and McLachlin, JJ.
• Court: Supreme Court (Canada)
• Case Date: December 13, 1990
• Jurisdiction: Canada (Federal)
• Citations: (1990), 116 N.R. 361 (SCC);1990 CanLII 27 (SCC);[1990] SCJ No 132 (QL);11 WCB (2d) 358;JE 91-48;[1990] ACS no 132;116 NR 361;[1990] 3 SCR 979;43 OAC 277;61 CCC (3d) 300;1 CRR (2d) 82;2 CR (4th) 153

R. v. Scott (1990), 116 N.R. 361 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Winston Livingstone Scott v. Her Majesty The Queen and The Attorney General for Ontario

(No. 21400)

Indexed As: R. v. Scott

Supreme Court of Canada

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

December 13, 1990.

Summary:

At the accused's first trial the Crown stayed the proceedings after the trial judge refused to stop cross-examination by the defence, which might reveal the identity of a police informant. The Crown later reinstated the proceedings and the accused moved for a stay on the ground that it was an abuse of process for the Crown to stay, then reinstate. The trial judge dismissed the application and during the trial refused to permit the cross-examination, which might reveal the identity of the informant. After electing not to call evidence the accused obtained a subpoena for a witness on the issue of entrapment. The witness did not appear and the trial judge refused to issue a warrant. After counsels' closing submissions the witness appeared, but the trial judge refused to reopen the trial to hear him. The accused was convicted and appealed.

The Ontario Court of Appeal dismissed the appeal. The accused appealed further on the grounds that the stay of proceedings and recommencement of proceedings by the Crown was an abuse of process and that the accused was precluded from making full answer and defence.

The Supreme Court of Canada, per Cory, J., with Dickson, C.J.C., Wilson, L'Heureux-Dubé and Gonthier, JJ., concurring, dismissed the appeal. The court held that it was not an abuse of process for the Crown to enter a stay to protect the identity of the informant and then to reinstitute proceedings. Similarly, it was not error for the trial judge to refuse to permit cross-examination which might reveal the identity of the informant. Further, it was not error to refuse to permit the late witness to be called, where it was not demonstrated that his evidence would be material. See paragraphs 1 to 64.

McLachlin, J., dissenting, Lamer, C.J.C. and La Forest, J., concurring, was of the opinion that it was an abuse of process for the Crown to stay, then reinstate the proceedings, because it smacked of judge-shopping and reflected on the impartiality of the administration of justice and the integrity and dignity of the judicial process. Further, she was of the opinion that the witness should have been heard. See paragraphs 65 to 98.

Sopinka, J., dissenting, was of the opinion that the witness should have been heard. See paragraphs 99 to 100.

*Please note that Dickson, C.J.C., was Chief Justice at the time of hearing and Lamer, C.J.C., was Chief Justice at the time of judgment.

Criminal Law - Topic 205

General principles - Defences - Common law - Entrapment - Agents provocateur - The Supreme Court of Canada held that the identity of a police informant must be revealed, if the informant acted as an agent provocateur, but noted that the accused must establish an evidentiary base for the defence of entrapment - See paragraphs 40, 42-44.

Criminal Law - Topic 205

General principles - Defences - Common law - Entrapment - Agents provocateur - After counsels' closing submissions a witness subpoenaed by the accused to help establish the defence of entrapment appeared - The materiality of the witness's evidence was never established and the accused did not offer an explanation of why the witness's evidence would be relevant - The Supreme Court of Canada affirmed the trial judge's refusal to permit the witness to be called - The court noted the onus on the accused to establish entrapment on a balance of the probabilities and stated that the witness's evidence could not alone establish it - See paragraphs 56 to 62.

Criminal Law - Topic 253

General principles - Abuse of process - Oppressive or other conduct constituting abuse of process - What constitutes - Recommencing proceedings previously stayed - During trial the Crown stayed proceedings under s. 508 of the Criminal Code after the trial judge refused to stop cross-examination for the defence, which might reveal the identity of a police informant - Subsequently, the Crown recommenced the proceedings and the accused unsuccessfully moved for a stay on the ground of abuse of process - The Supreme Court of Canada held that the Crown properly entered a stay to protect the police informant and properly recommenced the proceedings, so the trial judge properly refused to stay on the ground of abuse of process - See paragraphs 23 to 28.

Criminal Law - Topic 255

General principles - Abuse of process - Power of court to prevent abuse of process and grant accused stay of proceedings - [See Criminal Law - Topic 253].

Criminal Law - Topic 4486

Procedure - Trial - Stay of proceedings - [See Criminal Law - Topic 253].

Criminal Law - Topic 4570

Procedure - Trial - Conduct of trial - Re-opening of trial to hear additional evidence - [See second Criminal Law - Topic 205].

Criminal Law - Topic 5414

Evidence - Witnesses - Warrant for arrest of material witness - The Supreme Court of Canada held that a trial judge properly refused to exercise her discretion to issue a material witness warrant under s. 626 of the Criminal Code, where the accused failed to demonstrate that the witness would give material evidence about the alleged crime - Further, the other pre-condition to the issue of a warrant, the issuance of a subpoena, was defective - See paragraphs 47 to 55.

Evidence - Topic 4150

Witnesses - Privilege - Privileged topics - Identity of police informants - The Supreme Court of Canada held that a trial judge did not err in refusing to permit the defence to cross-examine a police officer to reveal the identity of a police informant, where none of the three exceptions to the rule that the identity of a police informant must be protected applied - The exceptions are: (1) where the informant is the only material witness to a crime; (2) the informant was an agent provocateur; and (3) where the accused challenges the validity of a search warrant - See paragraphs 30 to 46.

Evidence - Topic 4150

Witnesses - Privilege - Privileged topics - Identity of police informants - [See Criminal Law - Topic 253].

Cases Noticed:

Bisaillon v. Keable, [1983] 2 S.C.R. 60; 51 N.R. 81, appld. [para. 10].

R. v. Hunter (1988), 19 O.A.C. 131; 34 C.C.C.(3d) 14, appld. [paras. 13, 25].

R. v. Mack, [1988] 2 S.C.R. 903; 90 N.R. 173; 44 C.C.C.(3d) 513, appld. [paras. 22, 61, 92, 100].

R. v. Keyowski, [1988] 1 S.C.R. 657; 83 N.R. 296; 65 Sask.R. 122, appld. [paras. 26, 70].

R. v. Conway, [1989] 1 S.C.R. 1659; 96 N.R. 241; 34 O.A.C. 165, appld. [paras. 27, 69].

R. v. Garofoli (1990), 116 N.R. 241, refd to. [para. 35].

Roviaro v. United States (1957), 353 U.S. 53, appld. [para. 38].

R. v. Davies (1982), 1 C.C.C.(3d) 299 (Ont. C.A.), appld. [para. 38].

R. v. Kinzie (1956), 25 C.R. 6, appld. [para. 51].

Darville v. R. (1956), 25 C.R. 1, appld. [para. 51].

R. v. Amato, [1982] 2 S.C.R. 418; 42 N.R. 487; 69 C.C.C.(2d) 31, consd. [para. 61].

R. v. Jewitt, [1985] 2 S.C.R. 128; 61 N.R. 159; [1985] 6 W.W.R. 127; 21 C.C.C.(3d) 7; 47 C.R.(3d) 193; 20 D.L.R.(4th) 651, consd. [para. 70].

R. v. Moore, [1988] 1 S.C.R. 1097; 85 N.R. 195, consd. [para. 75].

R. v. McAnish and Cook (1973), 15 C.C.C.(2d) 494 (B.C. Prov. Ct.), consd. [para. 76].

R. v. Scheller (No. 1) (1976), 32 C.C.C.(2d) 274 (Ont. Prov. Ct.), consd. [para. 76].

R. v. Weightman and Cunningham (1977), 37 C.C.C.(2d) 303 (Ont. Prov. Ct.), consd. [para. 76].

R. v. Banas and Haverkamp (1982), 36 O.R.(2d) 164, consd. [para. 81].

Statutes Noticed:

Criminal Code, R.S.C. 1970, c. C-34, sect. 508 [para. 23]; sect. 626(2) [para. 47].

Criminal Code, R.S.C. 1985, c. C-46, sect. 579 [para. 23]; sect. 698 [para. 47].

Authors and Works Noticed:

Brewers, M.S., Defendants' Right to a Confidential Informant's Identity (1979), 40 La. L. Rev. 146 [para. 32].

Stuart, Don, Canadian Criminal Law: A Treatise (2nd Ed. 1987), pp. 480-491 [para. 61].

Wigmore on Evidence (McNaughton Rev. 1961), vol. 8, pp. 761-762 [para. 36].

Williams, Paul W., The Defense of Entrapment and Related Problems in Criminal Prosecution (1959), 28 Fordham L. Rev. 399, 403 [para. 32].

Counsel:

Bruce R. Shilton, for the appellant accused;

R.W. Hubbard, for the respondent Crown;

W.J. Blacklock, for the intervener Attorney General for Ontario.

Solicitors of Record:

Hamilton, Shilton & Shaw, Toronto, Ontario, for the respondent, John C. Tait, Ottawa, Ontario.

Attorney General of Ontario, Toronto, Ontario, for the intervener.

This case was heard on June 18, 1990, at Ottawa, Ontario, before Dickson, C.J.C., * Lamer, C.J.C., * Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and McLachlin, JJ., of the Supreme Court of Canada.

On December 13, 1990, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

Cory, J. (Dickson, C.J.C., Wilson, L'Heureux-Dubé and Gonthier, JJ., concurring) - see paragraphs 1 to 64;

McLachlin, J., dissenting (Lamer, C.J.C. and La Forest, J., concurring) - see paragraphs 65 to 98;

Sopinka, J., dissenting - see paragraphs 99 to 100.