R. v. Salmon: Proceedings Stayed Due To Fabricated Evidence

As the story goes, Mr. Salmon became involved with a 17-year-old woman, induced her to become a prostitute, and proceeded to claim the majority of her earnings. After approximately two weeks, the woman walked into a Peel Regional Police Service (PRPS) office to file her complaint. She told the officers where Mr. Salmon was staying, and they drove to his hotel and arrested him. A few “twists and turns” later, and Mr. Salmon was set to stand trial on a 17-count indictment. The charges included human trafficking, pimping and various offences related to the possession of fake identification (ID).

The Crown alleged that Mr. Salmon had been “instrumental” in acquiring at least two pieces of fake ID for the complainant in order to show that she was 18 years of age – evidently, this would make it easier for her work in certain Brampton sex clubs. This allegation was supported at a preliminary inquiry by the sworn testimony of Mr. George Wang, a Constable with the PRPS. During the arrest, Constable Wang was given the responsibility of tagging all confiscated property (i.e. Mr. Salmon’s wallet) and preparing a detailed exhibit list. According to both his notes and his testimony, the complainant’s fake ID was found in the wallet of Mr. Salmon at the time of his arrest. In theory, this fact would be used to demonstrate the extent to which Mr. Salmon’s exerted “control” over the complainant.

The controversy began, however, when Ms. Penman – counsel for Mr. Salmon – came into possession of the notes taken by the officer present when the complainant first arrived at the station. These notes had not been included in the general disclosure package, so a suspicious Ms. Penman requested them specifically. As it turned out, the officer’s notes stated very clearly that the complainant had turned the fake ID over to the police when she first arrived at the station, long before the arrest took place.

Immediately after this evidence surfaced, which was one day before the trial, Ms. Penman applied for a stay of proceedings, pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms:

Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Thus, the task facing Ontario Superior Court Judge Douglas Gray was threefold. (1) In light of the conflicting evidence, what are the actual facts? (2) Do the facts constitute a violation of Mr. Salmon’s Charter rights? If so, (3) what is the most appropriate remedy?

(1) What really happened?

Ms. Penman’s central argument was that the fake ID had been turned in by the complainant prior to the arrest, so it could not have been found in Mr. Salmon’s wallet, as Officer Wang had claimed. This meant that the police had either physically planted the ID in Mr. Salmon’s wallet during his arrest or they had “fabricated a scheme” to make it seem as though the ID had been found in his wallet.

In light of this new evidence, Judge Gray requested that Crown counsel clarify its position with respect to the fake ID. The Crown did not budge, maintaining that the ID was indeed found in Mr. Salmon’s wallet, and that the notes taken by the officer at the station must have been, for some unknown reason, made in error.

Judge Gray reviews, in great detail, the testimony provided by the officers involved in Mr. Salmon’s arrest. The most remarkable testimony, of course, was that of Constable Wang:

MS. PENMAN: …But where did these two pieces of identification come from?

ANSWER: I – – I don’t know. It – – obviously the – – I’m – – I’m saying now that they weren’t from his wallet. So, I don’t know if they were placed on the desk and, and got inadvertently mixed in with, with the other ID.

After Constable Wang reversed his preliminary testimony and contradicted his written notes, there was no denying that the ID had, as a matter of fact, been turned in prior to the arrest. Judge Gray outlined three possible explanations for the “erroneous notes, the erroneous exhibit list…and Constable Wang’s erroneous testimony” during the preliminary inquiry: (1) “incredibly sloppy police work,” (2) “the planting of the false identification in Mr. Salmon’s wallet” or (3) “the fabrication of evidence by Constable Wang and one or more [other] police officers.”

It is important to note at this point that the burden of proof in a section 24(1) application lies with the applicant. The onus was on Mr. Salmon, therefore, to prove his factual assertions, and Charter claims, on a balance of probabilities. Judge Gray acknowledges that this standard of proof may seem slightly low considering the magnitude of the allegations and the potentially disastrous consequences that his findings might have on individual officers. Having said that, the jurisprudence dictates that the seriousness of the issue does not change standard of proof:

In the criminal context, on motions brought by an accused pursuant to s. 24(1) of the Charter, this Court has followed the general rule and placed the burden on the accused to establish racial profiling on the balance of probabilities:  Peart v. Peel Regional Police Services Board, [2006] ONCA.

Having established the appropriate standard of proof, Judge Gray declares that Constable Wang is quite simply “unworthy of belief.” The Judge proceeds to call out nearly every other officer involved in the case. Take Detective Sergeant Kippen, for example, the senior officer who came into possession of the ID after the complainant dropped it off at the station. With 31 years of policing experience, Kippen acknowledged the importance of taking detailed notes in order to preserve evidence continuity. Nonetheless, he claimed to have zero recollection as to what he did with the ID after he received it.

Then there is Officer Viozzi, who was in charge of the case. Prior to the arrest, Officer Viozzi attended a briefing with Detective Sergeant Kippen. According to witnesses, the ID was literally sitting on the table throughout the briefing. However, when he reviewed Constable Wang’s six-item exhibit list – which clearly stated that the ID was found in Mr. Salmon’s wallet – Officer Viozzi found no errors.

Before reaching his conclusion, Judge Gray zeros in on Officer Viozzi’s motivation. Apparently, Officer Viozzi was, along with other PRPS officers, very familiar with Mr. Salmon. In fact, Mr. Salmon had been charged with similar offences before, but the PRPS had failed to secure a conviction. According to Judge Gray, the officers felt that he had “gotten away with it.” They were not about to let that happen again. With this in mind, the Judge concludes:

on a balance of probabilities, that it is more likely than not that Constable Wang, together with one or more other police officers, concocted a scheme to make it appear that the false identification of the complainant was found in Mr. Salmon’s wallet.

(2) Was there a Charter violation?

It almost goes without saying that fabricating evidence and giving false testimony constitutes an abuse of process. As Judge Gray sees it, however, this type of police misconduct is so severe that it “contravenes fundamental notions of justice and undermines the integrity of the criminal judicial process.” The question then becomes: does an abuse of process of this magnitude constitute a violation of Mr. Salmon’s liberty, as protected by section 7 of the Charter?

The answer, evidently, is yes. In reaching this conclusion, Judge Gray relies heavily on the words of Justice L’Heureux-Dubé for a Supreme Court of Canada majority in R. v. O’Connor, [1995] 4 SCR 411:

[I]t seems to me that conducting a prosecution in a manner that contravenes the community’s basic sense of decency and fair play and thereby calls into question the integrity of the system is also an affront of constitutional magnitude to the rights of the individual accused.  It would violate the principles of fundamental justice to be deprived of one’s liberty under circumstances which amount to an abuse of process and, in my view, the individual who is the subject of such treatment is entitled to present arguments under the Charter and to request a just and appropriate remedy from a court of competent jurisdiction.

In addition, there is a residual category of conduct caught by s. 7 of the Charter. This residual category does not relate to conduct affecting the fairness of the trial or impairing other procedural rights enumerated in the Charter, 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) What is the most appropriate remedy?

Having concluded that the scheme undermined the integrity of the judicial system to the point where it violated Mr. Salmon’s Charter rights, Judge Gray must decide what exactly should be done about it. Predictably, Crown counsel argued that the charges – and evidence – related to Mr. Salmon’s possession of the complainant’s fake ID should simply be thrown out, and that the case should continue. Not so fast, says Judge Gray.

Section 24(1) confers upon the court a significant amount of discretionary power with respect to determining the most appropriate remedy. To the casual observer, it seems reasonable to assume that the police could be held accountable for their wrongdoing while still forcing Mr. Salmon to stand trial. Judge Gray is convinced, however, that a stay of proceedings is his only real option. As Justice Doherty noted in R. v. Jageshur (2002), 169 C.C.C. (3d) 225:

The ultimate question is not legality, but whether the police conduct was sufficiently egregious so as to shock the conscience of the community and demand that the court not lend its process to a prosecution flowing from such conduct.

In essence, the Crown’s case is ruined beyond repair. For starters, the officers’ credibility is now completely “in tatters.” After they lied under oath, it would be very difficult to trust any of their future testimony in this case. The kicker, of course, is that by simply tossing out the charges related to the fake ID and proceeding with the case, the court would be implicitly condoning the officers’ conduct. The court has a duty to distance itself from such egregious acts of misconduct by state actors. As Judge Gray sees it, the fabrication of evidence “precludes any further investigation of the societal interest in the prosecution of the case.”

Judge Gray is correct in his assertion that society’s interest in preserving the integrity of Canada’s judicial system is paramount. Having said that, one gets the feeling that justice, in this case, has not been fully served. The Judge was supposed to be deciding whether or not Mr. Salmon pushed a young woman into prostitution and stole her money. Unfortunately, that question remains unanswered.

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