Supreme Court

SUPREME COURT OF Nova Scotia

Citation: R. v. Gareau 2018 NSSC 27

Date: 20180221

Docket: CRH No. 457090

Registry: Halifax

 

Between:

 

Her Majesty the Queen

 

v.

 

Steven Gareau

 

 

 

 

Judge:	The Honourable Justice Jamie Campbell
Heard:	December 4 to 8, 15, 20, and 21, 2017, in Halifax, Nova Scotia
Written Decision:	February 21, 2018
Counsel:	Peter Craig, Q.C., for the Crown Lee Seshagiri, Dave Mahoney and Matt MacMillan, for the Defence

By the Court:

 

[1]              Steven Gareau is facing a charge of first degree murder. Like anyone charged with a crime, he is entitled to the presumption of innocence. The application of that fundamental principle has real consequences. So, as of now, he is not guilty of anything. He was charged in October 2000. He has been in prison since then. More than 17 years have gone by. He has had two trials so far. Both times convictions have been overturned and new trials have been ordered.

[2]              The question now is whether the justice system can be seen as honouring its own principles if, after keeping Mr. Gareau in jail for all those years, the system now gets a third chance.

1)     Summary

[3]              The Supreme Court of Canada decision in R. v. Jordan[1] made delay in criminal matters front of mind for everyone involved in the criminal justice system. The Jordan case set times beyond which delay would be presumed to be unreasonable. It has prompted an active reassessment of attitudes and procedures. Jordan speaks in terms of months.  Cases in superior courts should be concluded within 30 months from the date a person is charged. The Jordan framework is challenged by a case that spans more than 200 months, 2 appeals and potentially 3 trials.

[4]              Jordan applies to only some of the total 17 years. It assesses the delay that pertains to the trials and waiting in jail for them to happen. It does not capture the 10 years that Mr. Gareau spent in jail serving sentences that were vacated and dealing with appeals that vacated them. Those years count for nothing under Jordan. Jordan focuses on time, just not all the time. The law is not clear on whether the 30-month presumptive ceiling established in Jordan applies cumulatively, to all three trials in this case, or applies only to the last trial in the sequence.

[5]              In the context of a case that remains unresolved after more than 17 years, examining less than half of that time and assessing the cause of delay relating to some weeks or months, would appear to be analyzing a small part of a big picture. For example, reviewing the law that pertains to whether a lawyer must withdraw from a case because of conflict of interest, applied to what was happening 15 years ago in the first of two completed trials, to decide whether delay attributable to the defence was some weeks or even months longer than conceded, may be an entirely justifiable forensic undertaking in the application of the Jordan analysis. It does seem to privilege process over principle when dealing with more than 200 months rather than 30.    

[6]              There is another way to assess the case. It deals with the delay within a larger context. Mr. Gareau has argued that his rights under s. 7 of the Charter have been breached, applying the law that relates to abuse of process. An abuse of process claim focuses on the consequences of delay to the fair trial rights of the accused and the consequences for the integrity of the justice system. That analysis considers the broader context. That, for Steven Gareau has the advantage of taking into account the full 17 years. It also has the disadvantage of taking into account his background and the serious nature of the crime with which he is still charged, and applying the high standard required to find an abuse of process. It is a more difficult test to meet than the Jordan test. In Steven Gareau’s case it is more appropriate to look to the entire 17 years and apply a stricter test, than to focus in on only 7 of those years.

[7]              A third trial would have Steven Gareau, who is now 61 years old, using a wheelchair and in declining health, face the same charges after more than 17 years spent in jail, waiting for three trials and serving sentences for first degree murder that were twice overturned by the Court of Appeal. In the context of the full 17 years, the delay has not been attributable to Mr. Gareau’s lack of interest, a plan to play out the delay clock, or calendar as the case may be, or a preference for a custodial environment. The need for three trials did not arise from anything Mr. Gareau did or did not do procedurally. Based on the findings of the Court of Appeal Mr. Gareau has still not had a fair trial on the merits of his case. There is no rule that says a person cannot be tried a third time. When the third trial would conclude after more than 17 years of custody, that adds another significant dimension. 

[8]              The ability to effectively cross-examine any of the witnesses after 2 highly publicized trials have been completed and 17 years passed, would be greatly reduced. Cases involving historical allegations are not uncommon. What is uncommon is a third trial, among a series of other related trials and appeals about the same murder 17 years later. The narrative of the murder of Sean Simmons has been rehearsed and traversed so many times through so many trials that what was said, what was remembered, and what happened, would be almost impossible to disentangle.[2]

[9]              And there is the issue of Paul Derry. He would be an important Crown witness in this trial. He was regarded as a highly disreputable witness in previous and in related trials. Now, over the intervening years has received a pardon for his criminal activities, published books, spoken publicly, developed a website, participated in a television documentary, and essentially became a public figure largely based on his involvement in circumstances surrounding the murder of Sean Simmons. He was aptly described as a “celebrity witness”. His celebrity status arose directly from the subject matter of this trial. Paul Derry could be effectively cross-examined on what may be alleged to be his own personal interest in the outcome of the trial. A jury would be extensively cautioned about the dangers of relying on his unconfirmed testimony. But his extraordinary public campaign creates a situation in which the trial could be seen as the chapter waiting to be written.   

[10]         Mr. Gareau has been charged with murder and conspiracy to commit murder. With or without the added features of his own violent criminal record and the involvement of organized crime, those are serious crimes for which there is a high public interest in having a resolution on the merits. There is a real concern when an accused murderer goes free without a trial. Seventeen years in jail, two trials, and two appeals may not exactly be “going free”.

[11]         An individual murder case is important. In rare circumstances, the broader implications of the case are more important. Those implications can be with respect to the value that is placed on the protection of the constitutional rights of the individual or they can be with respect to the reputation for integrity upon which the authority of the justice system rests. The damage to the reputation of the justice system if a third trial takes place, with no guarantee even then of resolving the matter finally, significantly outweighs the interest that society has in the prosecution of charges against a man who has already spent a very long time in jail.

(a)  Trials and Appeals

[12]         Steven Gareau was charged with the murder of Sean Simmons on October 13, 2000. The first trial was concluded on November 19, 2004.

[13]         Mr. Gareau appealed that conviction on November 30, 2004. The delay from the filing of that appeal until its conclusion was substantial. The appeal was eventually heard on February 15 and 16, 2012. By decision dated April 25, 2012, the appeal was allowed based on errors in the trial judge’s charge to the jury.[3] A new trial was ordered. 

[14]         The Crown applied for leave to appeal to the Supreme Court of Canada. That leave was denied on November 1, 2012.

[15]         The second trial started on January 6, 2014. On February 5, 2014 Steven Gareau was found guilty by a jury of first degree murder and conspiracy to commit murder.

[16]         Mr. Gareau appealed again. The appeal was filed on February 12, 2014. It was heard on May 12, 2016. The Court of Appeal released its decision on October 26, 2016.[4] The Court found that the trial judge in the second trial made an error by allowing the jury to hear propensity evidence relating to another shooting that was not part of the indictment and by refusing to permit cross-examination of an important Crown witness, Paul Derry, on a statement that was potentially exculpatory of Mr. Gareau. The Court of Appeal granted the appeal and overturned the convictions.

[17]         Dates for a third trial were set to run from April 3 to June 1, 2018.

[18]         The span of time from Mr. Gareau’s arrest on October 13, 2000 to the scheduled conclusion of the third retrial is 17 years, 7 months and 19 days, or 211 months and 19 days. Again, all of that is not Jordan time. But, in the context of an abuse of process claim it all matters.

2)     Abuse of Process

[19]         The fact of a third trial does not in and of itself establish an abuse of process.[5] It has not been argued on behalf of Mr. Gareau that a person cannot face trial on the same charges a third time.

[20]         A stay of proceedings based on an abuse of process is the most drastic remedy a criminal court can order. It is reserved for the “clearest of cases”. It permanently halts the prosecution and frustrates the truth-seeking function of the trial. The public is denied the opportunity to see justice done on the merits of the case and in some cases, victims are denied their day in court.

(a)   The Babos Test

[21]         The test for making a finding of an abuse of process was set out by the Supreme Court of Canada in R. v. Babos.[6] Justice Moldaver described two categories of cases. The first is where state conduct has compromised the fairness of the accused’s trial. The second is where the state conduct risks undermining the integrity of the judicial process.

[22]         The test to be applied is the same for both categories. The prejudice to the accused person’s right to a fair trial or to the integrity of the justice system must be “manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome”. There must be no alternative remedy capable of redressing the prejudice. And, where there is still uncertainty over whether a stay should be granted, the court has to balance the interests in favour of granting a stay, such as denouncing the misconduct and preserving the integrity of the system, against the interest that society has in having a decision on the merits.

[23]         While the test is the same for both the main category addressing trial fairness and the residual category addressing the integrity of the process, the test may in Justice Moldaver’s phrase, “play out” differently. Where trial fairness is invoked, the question is whether the accused’s right to a fair trial has been prejudiced and whether that prejudice will carry forward through the trial. There must be an ongoing unfairness. A stay should not be issued when another remedy is available to restore the fairness of the trial.

[24]         When the residual category is involved, the question is whether the state has engaged in conduct that is offensive to societal norms of fair play and decency and whether proceeding with a trial in the face of that would be harmful to the integrity of the system. Sometimes state conduct is so troublesome that having a trial, even a fair one, will leave the impression that the justice system condones conduct that offends society’s sense of fair play and decency.

[25]         Justice Moldaver noted that while it is generally true that the residual category will only apply as a result of state misconduct, that is not always the case.

Circumstances may arise where the integrity of the justice system is implicated in the absence of misconduct. Repeatedly prosecuting an accused for the same offence after successive juries have been unable to reach a verdict stands as an example...[7]

[26]         In the residual category, regardless of the type of conduct complained of, the question to be answered at the first stage is whether proceeding in light of the impugned conduct will harm the integrity of the system. At the second stage the question is whether any remedy short of a stay will “dissociate the justice system from the impugned state conduct going forward”.[8] Once again, “impugned state conduct” does not necessarily imply that there has been state misconduct. The integrity of the justice system may be implicated in the absence of misconduct. 

[27]         The balancing of interests at the third stage takes on added significance when the integrity of the justice system is at issue. In cases where trial fairness is involved, it may be clear from the first two parts of the test whether a stay is appropriate. Either trial fairness has not been prejudiced or the unfairness can be remedied by means short of a stay. When the residual category is invoked though, the court has to decide which of two options better protects the integrity of the system. It is either staying the proceedings or having a trial despite the impugned conduct.

This inquiry necessarily demands balancing. The court must consider such things as the nature and seriousness of the impugned conduct, whether the conduct is isolated or reflects a systemic and ongoing problem, the circumstances of the accused, the charges he or she faces, and the interests of society in having the charges disposed of on the merits. Clearly, the more egregious the state conduct, the greater the need for the court to dissociate itself from it. When the conduct in question shocks the community’s conscience, and/or offends its sense of fair play and decency, it becomes less likely that society’s interest in a full trial on the merits will prevail in the balancing process.[9]  

(b)   Abuse of Process Caselaw

[28]         The caselaw dealing with claims of abuse of process gives a sense of the wide range of circumstances in which the issue has arisen. The reported cases provide some guidance in setting out factors that have been considered important in assessing whether a stay should be ordered. 

[29]         In R. v. Keyowski[10] the accused was charged with criminal negligence causing death, arising from an accident in which he had struck a cyclist with his car. Two jury trials ended inconclusively with hung juries. The trial judge concluded that a third trial would amount to an abuse of process. The Crown appealed successfully and the matter made its way to the Supreme Court of Canada. The Supreme Court of Canada dismissed Mr. Keyowski’s appeal, clearing the way for a third trial.

[30]         Justice Wilson commented on the issue of whether state misconduct was required to give rise to an abuse of process. She said that it was not. That however was not one of the clearest of cases. The charge was a serious one. The proceedings had not occupied an undue amount of time (four years). The accused had not been held in custody and while he suffered from trauma and stigma from the ongoing process, he was, as she noted, probably not distinguishable from the vast majority of people who are accused in criminal matters. “A third trial may, indeed, stretch the limits of the community’s sense of fair play but does not itself exceed them.”[11]

[31]         The factors addressed by Justice Wilson in Keyowski can be applied to the situation faced by Steven Gareau. The charge is also a serious one. If one considers an “undue amount of time” as the period of time it has taken to conclude the matter, without parsing the reasons why it has taken that long, 17 years is undoubtedly an undue amount of time. Mr. Gareau has been in custody, waiting for trials and serving sentences that were subsequently vacated on appeal for that entire time. Mr. Gareau is distinguishable from the majority of criminal defendants both in terms of the sheer length of time that he has faced these charges and in terms of his diminished ability to defend himself against the charges.

[32]         In R. v. Jack[12] the Supreme Court dealt with an appeal from the Manitoba Court of Appeal.[13] The case involved whether delay to the point of ordering a fourth trial for manslaughter would constitute an abuse of process. The total delay amounted to about 8 years. Two years of the delay was at least in part attributable to disclosure failures in the first trial. Justice Scott in the Manitoba Court of Appeal set out some facts that supported the conclusion that this was a case in which proceeding with a fourth trial would tarnish the integrity of the court. There had been extensive delay from the time of the disappearance of the victim. A further appeal to the Supreme Court was counted as a certainty resulting in even more delay. The accused had not contributed in any significant way to the delay other than by exercising his rights to appeal. And the Crown contributed to the delay by the way it conducted the first trial. Justice Scott also considered the impact that a fourth trial would have on everyone involved and concluded the affront to fair play and decency was disproportionate to the societal interest in prosecution of the case.

[33]         The Supreme Court agreed with that analysis. The actions of the accused in exercising the right to appeal should not count against him of course. The manner in which the Crown conducted the trial came under scrutiny as contributing to the delay.

[34]         The cases of R. v. Taillefer and R. v. Duguay[14] are instructive because a stay was granted for one and not for the other. They were co-accused for the murder of a 14 year old girl in March 1990. Both men were convicted at the first trial. Both appealed. The cases then follow a bit of a tangled path. Taillefer’s appeal was dismissed by the Quebec Court of Appeal but a new trial was ordered for Duguay on a reduced charge of second degree murder. Duguay then pleaded guilty to manslaughter and was sentenced to 12 years. Both cases were reviewed by the Poitras Commission and it was determined that the prosecution had failed to disclose a substantial amount of evidence. Both sought a further review by the Court of Appeal and both were denied. The cases went to the Supreme Court of Canada. There Justice LeBel found that their rights to disclosure had been breached and the convictions were both quashed.

[35]         Both Taillefer and Duguay asked to have stays entered to prevent the retrials from going ahead. They claimed abuse of process but also malicious prosecution and police concealment of evidence. Mr. Taillefer had been in jail for 13 years by that point and Mr. Duguay for 8 years.

[36]         Mr. Taillefer was not granted a stay. Mr. Duguay was. Justice LeBel held that it would be premature to order a stay for Mr. Taillefer in the case of such a serious crime. He noted that the trial judge would be in a better position to determine if Mr. Taillefer’s right to make full answer and defence would be jeopardized and whether the trial should go ahead. The trial judge could rule on the issue either before evidence was led or after hearing some of the evidence. That case was not one for which the affront to fair play and decency was disproportionate to the societal interest in effective prosecution. The Crown did not act out of bad faith, out of improper motives or in any way that would have the effect of tarnishing the integrity of the justice system. If the trial judge concluded that Mr. Taillefer could not receive a fair trial then that judge could enter a stay.

[37]         In Mr. Duguay’s case a stay was entered by the Supreme Court of Canada. Justice LeBel found that it would be an injustice to Mr. Duguay to order a new trial. He had earlier negotiated a plea deal. Even if he were convicted of second degree murder at a second trial he would likely have already reached full parole eligibility. He said that a new trial on manslaughter charges would be an unfair burden for Duguay who had “already, in effect been punished for the offence”. He had been incarcerated from the time of his conviction on first degree murder on February 1, 1991 until the Court of Appeal ordered a new trial on June 12, 1995. He then agreed to admit guilt on manslaughter and was sentenced to 12 years. Of that he served 8 years.

Ordering a new trial when the accused has already served so much of his sentence would contribute to perpetuating an injustice and would tarnish the integrity of our judicial system. This is plainly one of those cases where a stay of proceedings is warranted, because “compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community’s sense of fair play and decency”, and to “prevent the abuse of a court’s process through oppressive or vexatious proceedings”… A resumption of the proceedings, so that the trial judge could find, at the end of those proceedings, that the accused has already effectively spent the time in prison that is normally imposed in the case of any term to which he might be sentenced if he were convicted does not seem to be in the public interest in any sense, and places an excessive burden on the appellant. At some point or other, in circumstances like these, a stay of proceedings seems to be virtually inevitable.[15]          

[38]         In cases involving multiple trials, the fact that the accused has already served a significant portion of his or her sentence is a relevant factor in determining whether a new trial would be an abuse of process.

[39]         In R. v. A.L.[16] the Ontario Court of Appeal dealt with a sexual assault charge that had been making its way through the courts for over 10 years and it had been 13 years since the incident that gave rise to the charges. In that case, neither the Crown nor the accused person was responsible for the errors that resulted in three successful appeals. Once again, the court noted, that there is no requirement for prosecutorial misconduct to be involved in an abuse of process claim. The accused had been on bail for the entire time. The Court said that the community would have great difficulty in placing any faith in a verdict that would come out of a fourth trial reached in such circumstances. Further prosecution would stretch the limits of the community’s sense of fair play beyond the breaking point.

[40]         The Saskatchewan Court of Appeal in R. v. Spencer[17] issued a stay in a child pornography case. Spencer had just turned 19 when the charges were laid and the case kept going for another ten years. Justice Jackson observed that the appellant had spent a third of his life facing jeopardy for the offence and had been the subject of extensive media coverage. He had also been under court supervision of some kind for that entire time. He had obtained a university degree and a post-graduate degree but had been unable to get work because of the outstanding charges. He had tried to rehabilitate himself and had been successful in doing that. 

[41]         The judgment was issued in late June 2017 and provides a clear review of the issues that pertain to abuse of process claims where multiple trials are involved. The court set out a list of factors that had been considered in granting the stay. First among those was the seriousness of the child pornography charge. The court also considered that 10 years had elapsed. The reasons why the case had taken 10 years were considered. The effect of that time on Mr. Spencer was considered. The court noted that the prosecution had already occupied time and resources on the part of the Crown, the accused and the courts and a third trial would involve even more. The court considered the fact that Mr. Spencer had been on conditions in the community. His lack of criminal record and his age were factors. The court also had regard to the length of time he had been incarcerated compared to the potential sentence that might be imposed on him.

[42]         Justice Jackson made it entirely clear that there had been no suggestion that the Crown had acted other than in good faith in the matter. “Nothing improper occurred here. At each step of the process, the Crown has carried out its legal obligations with fidelity and exercised its discretion appropriately. The same can be said of the police.”[18]   

[43]         With that said, the court found that it would be an abuse of process to compel Mr. Spencer to face a third trial. The stay was issued not because an abuse of process had occurred, but to prevent an abuse of process, the third trial.

[44]         Trial courts have also dealt with the issue of multiple trials for the same person on the same charges. 

[45]         In R. v. Underwood[19] the applicant was a drug dealer who was charged with murdering an associate who owed him money. The killing happened in 1992. The Supreme Court of Canada eventually overturned the conviction in 1998. After a second trial, he was convicted again. The case went to the Alberta Court of Appeal and the conviction was overturned in 2002. A stay application was brought in relation to a third trial that was supposed to go ahead in 2005. Mr. Underwood had been in custody for the entire time, almost 13 years and had not made a bail application.

[46]         The trial judge, Justice McMahon dismissed the delay application under s. 11(b). Underwood had also brought an application for a stay based on abuse of process. In that analysis, Justice McMahon concluded that there was prejudice to Mr. Underwood but that the prejudice could be remedied. The concern had been expressed that Underwood had lost the opportunity to call some witnesses or to cross-examine others. Allowing evidence from the previous trial to be read into the record was held to be sufficient to remedy that. Both the witnesses had been subject to cross-examination in at least one of the previous two trials.

[47]         Justice McMahon also dealt with the second aspect of abuse of process, the impact on the integrity of the system. The court concluded that a third trial over 13 years later would indeed prejudice the integrity of the justice system and the issue was whether the circumstances amounted to one of those rare cases requiring a stay as a remedy. Justice McMahon commented that this was Underwood’s third trial on first degree murder and that he had been in custody for 13 years. He had also been convicted twice by juries.

Although not necessary to establish an abuse of process, I also note that there have been no allegations of prosecutorial misconduct in this case. Weighting all of the circumstances of the case I find that this is not one of the “clearest of cases” warranting a stay of proceedings.[20]

[48]         The jury in that case, on the third trial, found the accused guilty. He appealed again. The Alberta Court of Appeal dismissed the appeal and upheld Justice McMahon’s ruling on abuse of process. The Court of Appeal noted that because Underwood had not been prejudiced because the evidence from the earlier trial had been read into the record, there had been an adequate remedy short of a stay.

[49]         In R. v. Trudel[21] two men, Trudel and Sauvé, were accused of first degree murder. Once again, the circumstances are a bit convoluted. They were charged in relation the shooting deaths of a low-level drug dealer Giroux and his spouse Bordeau, in January 1990. The Crown’s theory of the case was that a man named Stewart ordered the hit on Giroux, as an example to what would happen to people who didn’t pay their drug debts. Bordeau was killed because she was a bystander and could have identified the killers. Originally, Trudel and Sauvé were charged jointly with two others. After an extraordinarily long preliminary inquiry the four accused were put on trial in January 1995. The other two accused were severed and the trial went ahead for Trudel and Sauvé. They were both convicted on May 30, 1996. They appealed. The appeal was successful and a new trial was ordered on January 30, 2004. The new trial started on December 11, 2006 and the time estimates were that the matter would conclude in about one year, 17 years after Trudel and Sauvé were taken into custody.

[50]         They applied for a stay under both s. 7 and s. 11(b) of the Charter. Trudel had been granted bail in 2005 and Sauvé was still in jail.

[51]         Justice McKinnon in that case ordered a stay under s. 11(b), independent of considerations under s. 7. The court addressed the s. 7 argument. The applicants argued that their fair trial interests had been prejudiced. The significant passage of time had “ravaged the memory of witnesses and thus negated the ability of the defence to effectively test or challenge their evidence in cross-examination.”[22] Physical evidence had been lost directly as a result of the passage of time.

[52]         Justice McKinnon agreed that the risks to trial fairness arising from fading memories was clear and noted in particular the concern when dealing with the recollections of an unsavoury Vetrovec witness. Based on common sense and experience it could be concluded that the memories of key witnesses have been ravaged over time and the prejudice arising from that fact was manifested at the time. The judge took judicial notice of the fact that memories of events occurring more than 16 years before would be distorted “to the prejudice of the applicants.” That was particularly true when dealing with witnesses who had shown themselves to be quite capable of lying under oath. 

[53]         The impact on trial fairness in that case was sufficient to justify a stay.

[54]         A case going in the other direction is R. v. Pan.[23] Pan was charged with murdering his girlfriend in 1988 and he was charged in 1989. The jury in the first trial could not reach a verdict. The second trial resulted in a mistrial. The third trial was to start in 1992 and Pan made an application for a stay. That application was rejected by the trial judge and the third jury trial proceeded. He was convicted. The issue went before the Ontario Court of Appeal.

[55]         The court held that proceeding with a third trial after two juries did not return verdicts was not an abuse of process. There was no prosecutorial misconduct or improper motive and neither the length, nor number of proceedings was attributable in any way to impropriety on the part of the Crown. The prejudice in that case was found not to be disproportionate to the interests of society in the proper resolution of the matter by a jury verdict.

[56]         In R v. Badgerow[24] the murder took place in 1981. Badgerow was tried on the charge 20 years later and the conviction was overturned on appeal. Second and third trials resulted hung juries. The accused spent about 10 years in jail and another three years on strict release conditions. The trial judge ordered a stay.

[57]         The Crown appealed. The Court of Appeal in R. v. Badgerow[25] allowed the appeal. The court noted that in that case the Crown had not actually had an opportunity to put forward the case with all of the admissible evidence. Evidence had been excluded that was relevant and highly probative and pointed to Badgerow’s guilt. Had the Crown been given that opportunity to prove its case that case would have been markedly stronger. The exclusion of that evidence was a factor to be considered in assessing the prejudice to the accused of a retrial as against the interests in obtaining a final decision on the merits of the case.

[58]         In R. v. McKenzie[26] the applicant was also facing a fourth murder trial. The two previous trials had ended in mistrials and a third was overturned on appeal. The total delay from the initial charge to the date of the stay application was about 6 and a half years and of that the accused had spent 4 years and 8 months in prison. There was no allegation of prosecutorial misconduct or a breach as a result of delay. McKenzie relied on the factors set out in Keyowski most specifically the time he had spent in jail, to support the application for a stay. Justice Abbey noted that the accused was still “cloaked with the presumption of innocence”, and had spent approaching 5 years in custody. If he were found guilty of manslaughter it might have been that no further period of incarceration would be ordered. Even though he had not been in jail for a time that would approach the sentence for second degree murder, it would be wrong to deny a stay because of that. “To do so would be an affront to the presumption of innocence.”[27]

[59]          R. v. R.D.L.[28] was a case involving two people who were accused of severely injuring a very young child in their foster care. The child who was under 2 years old, had injuries and bruises all over his body. They were charged with aggravated assault and failing to provide the necessities of life. They were convicted by juries at two trials and successfully appealed both convictions. The Court of Appeal refused to enter a stay after the second appeal and the matter came up for trial, a third time.

[60]         Justice Costigan of the Alberta Court of Queen’s Bench dealt with the application for a stay brought at that time. The delay from the laying of the charges to the anticipated end of the third trial was about 7 and a half years.  Justice Costigan considered several factors, including the number of trials, the seriousness of the charge, the strength of weakness of the Crown’s case, the time spent in custody, publicity, trauma and stigmatization, prosecutorial misconduct, delay, and restrictive bail conditions. In that case, a stay was granted. The combination of factors there was described as “exceptional and unique”.[29] Compelling the couple to stand trial a third time in light of the intense and prolonged publicity, the effect of their own children’s circumstances on them, the trauma of separation from their children, 20 months of custodial time, and the decrease in the number and seriousness of the charges after the second trial, would likely affect the public’s sense of fair play and decency and harm the image of the justice system. An additional factor was noted as being significant as well. There was risk to the life and liberty of an innocent child if the third trial were to go ahead. One of the couple’s children had attempted suicide and the medical opinion was that there was a serious risk to his life if a third trial were to occur.   

(c)  Analysis of Abuse of Process Caselaw

[61]         Abuse of process claims tend to show up in cases that are unusual for any number of reasons. R.D.L. is a good example of that. While some of the factors are found in other cases, the substantiated concern that a child’s life would be at risk if the trial proceeded sets the case apart. Those that have succeeded appear to have no common factual thread that runs through them. There is no set time limit. There is no set limit on the number of trials. There is no limit based on the kind of charges that are faced. Each case must be assessed against the test set out in Babos.

[62]         The determination of whether an abuse of process has or will take place is context driven not checklist driven. There is no formula that can be confidently applied and there is no list of factors that attributes a weight to each factor in each case. There are some considerations that courts have considered to be important. The seriousness of the charge is certainly relevant (Keyowski). The length of time that a person has been subject to prosecution is important (Keyowski, Spencer, Taillifer). Whether the accused has contributed to the delay either by his or her own actions or by inaction has to be considered (Jack). Decisions made by the Crown that have contributed to the complexity of the case and the delay that arises from that complexity can be a factor even when those decisions are not made in bad faith (Spencer). Prosecutorial misconduct is not required but in at least one case, the absence of such misconduct was considered (Underwood). The reasons why there have been retrials, whether through appeals or retrials after inconclusive results, and whether the Crown has had an opportunity to present its case can be factors (Badgerow). There appears to be no set limit on the number of trials a person can face, though four is probably pushing it (Keyowski). Whether the person has been on a form of release pending trial or has been incarcerated is significant. If an accused person has spent so much time in jail that it begins to approach the sentence that could be imposed after conviction, that is a concern (Taillifer). The personal circumstances of the accused person must be considered (Keyowski, Spencer). Whether, after the delay, the public could have “faith” in the verdict at the trial was considered in one case (A.L.).  How the passage of time affects the ability to try the case and the mounting of a defence to the charges is relevant. That may be more pronounced in cases in which Vetrovec witnesses are important (Trudel).

(d)  Application of the Babos test

[63]         Mr. Gareau asserts that his right to a fair trial has been compromised to the point where the only appropriate remedy is a stay. He also claims that a third trial would tarnish the integrity of the justice system to an extent that it outweighs the concern for having a trial on the merits even on such serious charges. It is difficult to keep those two branches of the test entirely separate. The impact on the right to a fair trial also has an impact on the integrity of the justice system.

              1.  A Murder Charge

[64]         The first consideration that had to be addressed directly, is the nature of the charges. This is a murder charge and a charge of conspiracy to commit murder. There is no way to minimize the significance of those charges. Mr. Gareau is charged with being a party to the murder of Sean Simmons. Society has a high interest in seeing charges of that kind go to trial. In this case, a criminal organization is implicated. While that may not be an issue when addressing the seriousness of the case when dealing with the transitional exception to the Jordan rules, it would seem strange if it were not considered in the more contextual approach taken when assessing an abuse of process claim. A case that involves a murder with Hells Angels connections would be the subject of a stay in only the most extraordinary circumstances.

[65]         The conspiracy charge is another matter. At the last trial, the Crown recommended a sentence of one day, deemed served, for that offence. But the Crown maintains that the third jury trial should also include that notoriously complicated charge.

              2.  Lack of Improper Motives

[66]         There has been no suggestion whatsoever of improper motives on the part of the Crown. There have been issues raised to suggest that the way the Crown has prosecuted the matter has caused some of the delay. There was an issue about how a “without prejudice statement” given by Mr. Gareau was treated by the Crown. The motives of the Crown in prosecuting the matter however have not been impugned. There is no requirement for bad faith to justify an abuse of process and the lack of bad faith or improper motives on the part of the Crown in this case should be factors in the determination.

              3.  The Reasons for a Seventeen Year Delay

[67]         Because Mr. Gareau argued that his s. 11(b) Charter rights had been infringed, much of the argument and evidence in this motion related to the delay and the reasons for that delay. When considered in the context of an individual trial those issues are significant for the Jordan analysis and for the consideration of the transitional exception that applies to cases already in the system when the Jordan decision was released. The relevance of weeks of delay seems diminished when the matter is assessed on the basis of cumulative delay over the course of two completed trials and a scheduled trial, that would have taken in total about 7 years to have completed. Those weeks and months fade almost to insignificance in the context of the full 17 years.     

[68]         It is impossible to avoid getting into some of the delay details. Those details should serve the purpose of bringing some clarity to the big picture rather than obscuring it in the particulars.  

                        (i)  The First Trial

[69]         This is not a Jordan analysis. There is no presumptive ceiling for delay in dealing with an abuse of process claim. The issue is not about accounting for weeks or even months of delay but to try to get a sense of the big picture, while avoiding the “counterfactual” analysis of what else might have happened, had something other than what happened, happened.

[70]         In the first trial Mr. Gareau was initially charged alone on a single count Information alleging first degree murder. That was the case from October 2000 until May 2001. In May 2001, the Crown indicated its intention to charge Mr. Gareau with first degree murder and conspiracy to commit murder along with Neil Smith, Wayne James and Dean Kelsie. The original single count Information was withdrawn. That drew Mr. Gareau into a case that involved the complexities of a conspiracy charge with three alleged co-conspirators. That resulted in a change in the size of the case, the nature of the disclosure, the time requirements for trial, and the scheduling complexities when more lawyers are involved. The Crown had every right to charge Mr. Gareau in the way that it did. That decision had implications for delay that made themselves felt along the long chain of events. 

[71]         Had everything gone according to plan, Steven Gareau would have been tried with Smith, James and Kelsie in January and February 2003. Between the setting of the dates and the scheduled trial dates things started to unravel.

[72]         On October 24, 2002 Dean Kelsie’s statement was ruled voluntary and admissible as part of the Crown’s case. That statement inculpated the co-accused and pointed directly to Steven Gareau as the person who shot Sean Simmons. That prompted a severance application by Mr. Gareau, Mr. Smith and Mr. James to have their trial separate from Dean Kelsie’s.  The Crown opposed the severance.

[73]         The severance application proceeded and was successful. Dean Kelsie was severed from Gareau, Smith and James. The Crown then decided to try Dean Kelsie first. That prompted another application by Gareau, Smith and James alleging abuse of process, and seeking to have their trial heard first on the previously scheduled dates in early 2003. Counsel for Dean Kelsie was prepared to go on record to waive concerns about delay if Kelsie’s trial proceeded second. The Crown insisted on proceeding with Kelsie first, citing prosecutorial discretion.[30]

[74]         The abuse of process motion was not successful. Justice Murphy held that the Crown was not required to give reasons for choosing the sequence of the trials in the absence of some evidence of improper motive. Counsel for Gareau, Smith and James then returned to court to get new trial dates. The new trial dates were booked for June through August 2003. So, at this point, two entirely legitimate decisions made by the Crown had directly affected scheduling. Charging Mr. Gareau jointly with the others with both murder and conspiracy, and proceeding with Kelsie’s trial first meant that Mr. Gareau’s trial would be later. 

[75]         Then after those dates were set, things started to unravel again over the issue of allegations of conflicts of interest facing Mr. Gareau’s counsel. That issue took on a long and painstakingly detailed life of its own. In the most broad-brush of summaries, the Crown had identified potential conflicts very early on, but was prepared to cooperate with defence counsel to work around those potential conflicts by among other things securing independent legal advice for potential witnesses or making certain admissions. Things came to a head in December 2002 when the Crown insisted that Ken Greer, Steven Gareau’s then lawyer, withdraw.   

[76]         Mr. Greer sought legal advice about the potential conflict and the advice that he received was consistent with comments made during a pretrial conference on December 23, 2002, by Justice Cacchione. The conflict had not “crystallized” at that time. On March 21, 2003, the Crown provided additional disclosure. At that point, Mr. Greer determined that the conflict had indeed “crystallized” and he had to withdraw.

[77]         Smith and James sought severance from Gareau and were successful. They had their trials in the summer of 2003.[31]

[78]         Mr. Gareau retained new counsel and set new trial dates starting March 1, 2004. There was a breakdown in that relationship and counsel withdrew from the case. Trial dates were then adjourned until October 12, 2004. The matter then went to trial and concluded in November 2004. The Crown argued that as of December 2002 Mr. Greer should have withdrawn. Mr. Gareau’s counsel argued that Mr. Gareau was responsible for the delay only after the conclusion of the Smith and James trial. His trial could have gone ahead in the summer of 2003 with Smith and James had it not been for the conflict issues.

[79]         Mr. Gareau faced charges on that first trial from October 2000 until November 2004. Again, this is not a Jordan analysis requiring a more precise accounting for time. With regard to that roughly four-year period Mr. Gareau does not appear to have been intent on frustrating the process of getting the matter to trial. He did not fire a number of lawyers in succession or refuse to take part in his own defence. On one hand, had the matter gone ahead with Steven Gareau alone, charged with murder on a single count Information, the matter might, perhaps, have been completed earlier. Had Mr. Gareau’s lawyers withdrawn when a conflict was identified, the matter might, perhaps, have been completed earlier.    

[80]         Mr. Gareau’s lawyers at the time, dealt with the issue of conflicts. They spoke with the court and the Crown about potential conflicts and sought independent legal advice with respect to them. They acted based on that advice. They did not sit on a potential conflict in the hope that no one would notice or that it would somehow go away. They were “alive” to the issue, sought advice about it, spoke to the Crown about it, and resolved it. This was a case in which withdrawing as solicitor of record at the first hint of a problem to avoid a delay, was not a particularly attractive option. The pool of available defence lawyers with the experience and inclination to take this case was limited and becoming more so as the issues developed.

                        (ii)  The First Appeal

[81]         There have been times during the process when Mr. Gareau has not moved the matter forward with an apparent sense of urgency. That has to be considered the context of the passage of 17 years. It is perhaps understandable that over the course of those years in jail a person’s resolve might wax and wane. Mr. Gareau must still take responsibility for that delay.

[82]         The longest single delay was between the first trial and the first appeal in this case. The first trial concluded in November 2004 with a conviction. The appeal was heard in February 2012 and a decision delivered in April of that year. Mr. Gareau started his appeal promptly, as a prisoner appeal before retaining counsel. Kenneth Fiske Q.C. of the Crown’s office assisted him by preparing the Appeal Book and helped him with making the connection with Nova Scotia Legal Aid. Mr. Gareau acknowledged that Mr. Fiske did everything he could to help. Mr. Gareau was offered assistance from Legal Aid in May 2005. He filed the application and received the names of lawyers who might be able to provide representation for him on the appeal. Mr. Gareau had sought the assistance of the Association in Defence of the Wrongfully Convicted. He also contacted the lawyers whose names had been given by Nova Scotia Legal Aid.

[83]         During that process, he was transferred to Kingston Penitentiary and made inquiries there about getting a lawyer in Nova Scotia.  He followed up again with the Association in Defence of the Wrongfully Convicted. He contacted Nova Scotia Legal Aid and Mr. Fiske asking for help in finding a lawyer. Mr. Gareau said that over the next two years he remained in contact with Walter Yeadon at Nova Scotia Legal Aid, and contacted lawyers between November 2004 and November 2008. In late 2008, he met Fergus “Chip” Young who agreed to consider the case. Mr. Young agreed to take the case and Nova Scotia Legal Aid agreed to funding.

[84]         It took a long time to get a lawyer to deal with the appeal. Mr. Gareau was able to get lawyers for his second trial and second appeal with little of the difficulty experienced for the first appeal. That said though, it is apparent that a number of the experienced criminal law practitioners in Nova Scotia were conflicted out of the case. That matter involved three trials (Kelsie, Smith and James, Gareau) with a number of people accused. Mr. Gareau felt, with some justification, that the jeopardy he faced and the complexity of the case required a lawyer with some experience. And he was trying to organize his legal representation from jail, for some part of the time, in jail in another province.

[85]         Some part of the delay from the first trial to the first appeal is attributable to Mr. Gareau’s failure to have the appeal heard in a timely way. He could have been more aggressive in getting legal counsel. The delay was not a ruse of any kind. Frustration and lack of energy would be a better explanation. Mr. Gareau had already protested his innocence and was in jail. He was not someone who was living in the community and had no particular interest in seeing the case resolved. Every day of delay was another day he spent in jail. Delay has to be assessed in the context in which it occurs. There was no benefit to Mr. Gareau in delaying the appeal.

                        (iii)  The Second Trial

[86]         A second trial was ordered by the Court of Appeal on April 25, 2012. Why there was even a need for a second trial is significant. The appeal was certainly not frivolous. On the contrary, it was successful. The Court of Appeal determined that the trial judge’s charge to the jury contained an error that went to the heart of the case. The trial judge allowed the jury to hear evidence about the convictions of Kelsie, Smith and James. Defence counsel at trial did not object to that. The judge instructed the jury that the evidence of those verdicts could not be used against Steven Gareau but later in the charge said that the jury could consider that evidence in assessing the knowledge and intention of Steven Gareau. Chief Justice MacDonald identified the source of the problem in the model jury charge that was adapted for the purpose of that trial. The Court of Appeal determined that the mistake was so significant that the conviction could not stand.

[87]         It was found to be a mistake. Neither Mr. Gareau nor his lawyer caused it.  

[88]         The matter moved quickly from the Court of Appeal back to Supreme Court.  At the October 4, 2012 appearance dates were set for the second trial.

[89]         There were several exchanges in the intervening period about the actions of Paul Derry that might relate to his credibility. Among those issues were Mr. Derry obtaining a pardon from the Parole Board and documents relating to his lawsuit against the RCMP regarding their handling of the Sean Simmons murder case and Mr. Derry’s role as a police agent in that matter. The trial was adjourned, to begin on January 6, 2014.

[90]         The defence argued that the adjournment was required as a defence action “legitimately taken to respond to the charges”.

[91]         The second trial proceeded with little delay in any event. Mr. Gareau was found guilty by a jury on both charges on February 5, 2014.

                        (iv)  The Second Appeal

[92]         Once again, Steven Gareau appealed from the conviction on February 12, 2014. The appeal proceeded promptly with a decision rendered on October 26 2014. The conviction from the second trial was again overturned. 

                        (v)  The Third Trial

[93]         The third trial has not happened yet. It is of course the subject of this abuse of process claim. It is scheduled to take place from April 3 to June 1, 2018.

[94]         Once again, the reasons why a third trial has been ordered are significant.  In the second appeal the Court of Appeal determined that the trial judge had made an error in law by permitting the jury to hear evidence about another shooting that was not part of the indictment. The Crown presented the evidence and argued before the judge for its admission in evidence to the jury. The defence argued that the evidence should not be admitted because it would lead to propensity reasoning. The trial judge agreed with the Crown and admitted the evidence. The Court of Appeal found that to be an error of law. The decision was the trial judge’s but the position was the Crown’s.  

[95]         The second ground upon which the Court of Appeal ruled that the conviction should be overturned related to the trial judge’s refusal to allow cross-examination by defence counsel of Paul Derry, on a portion of an intercept. The judge accepted the Crown’s arguments and said that allowing cross-examination would be inviting Derry to comment on an exculpatory statement made by the accused. The statement could be introduced by the Crown but Mr. Gareau’s counsel could not have the self-serving statement essentially introduced through Paul Derry. The Court of Appeal found that to be an error. The cross-examination would be directly probative of a fact in issue in the trial, that was relevant to the Crown’s case and had been explored with equivocal results by the Crown’s direct examination of Paul Derry.

[96]         The Court of Appeal also noted that in the Crown’s closing address to the jury the absence of a denial from Mr. Gareau in the intercepted communication was noted as being critical. But, as the Court of Appeal concluded, the only reason the jury didn’t hear a denial was because the intercept with the denial was not tendered by the Crown and the judge ruled that the decision as to whether it could be tendered in evidence was for the Crown to make. 

[97]         If the Court of Appeal considers the errors to be of a kind that require the results of the jury trial to be overturned they are, by definition, not inconsequential errors. There are consequences that arise from that. Mr. Gareau must accept those consequences, but only to a point.

                        (vi)  Delay Summary

[98]         This case has gone on for more than 17 years. After two trials and two appeals Steven Gareau has not yet had a trial that was sufficiently fair that it could pass legal muster at the Court of Appeal. There is some benefit to stepping back from the details to consider really, why it has been 17 years. There is no single cause of course. There have been periods of delay for different reasons, from the addition of three co-accused and a conspiracy charge and conflicts issues in the first trial to difficulty in getting a lawyer to deal with the first appeal. But it comes down to a murder and conspiracy trial, with two successful appeals. The appeals were successful because errors were found. The legal errors were not attributable to anything that Steven Gareau did.  

 

 

              4.  Fading Memories and a Fair Trial

[99]         The ability to cross-examine witnesses has diminished. It is not a situation in which fading memories may harm both sides. Evidence has already been heard twice in the context of Steven Gareau’s charges, not to mention the Smith, James and Kelsie cases. This is not one trial or one set of charges standing in isolation. It is one of a series of trials about a single event. Witnesses have already been cross-examined on their evidence. The ability of defence counsel to effectively challenge witnesses is hampered by both the passage of time and the rehearsal of the evidence in previous trials. Requiring Mr. Gareau to go through a trial for first degree murder, 17 years after the fact, facing a potentially rehabilitated Vetrovec witness and others who can practically immunize themselves from effective cross-examination by relying on fading memories, would seriously affect his right to a fair trial.

              5.  Paul Derry

[100]     If Mr. Gareau faces a third trial he will again confront Paul Derry. Mr. Derry appears now to be a very different person than he was when Mr. Gareau was first charged. Perhaps delay has served to improve the credibility of the main witness against Mr. Gareau.

[101]     Mr. Derry’s story is unusual. A lot of things can happen over 17 years but what happened in this case is striking. Paul Derry has written books, specifically about this case. While there is of course no evidence about how widely circulated those books may have been, it is unlikely that many important Crown witnesses have written books outlining in detail how they say the crime took place, before the case is completed. The book, entitled Treacherous: How the RCMP Allowed a Hells Angel to Kill, was published in 2009. It contains an account of how Sean Simmons was shot, including detailing the involvement of Steven Gareau, as recounted by Paul Derry. Inside a Police Informant’s Mind was published in 2015. In that book, Paul Derry again recounts his story of the murder of Sean Simmons. The introduction of that book opens with these sentences:

The strong wind mixed with ocean spray coming off the Atlantic onto the beach at Lawrencetown, Nova Scotia made me shiver. Or maybe it was the clothes covered with brain matter and blood that we were trying to throw into the open sea. Everything seemed surreal. Less than an hour before, we had been having a beer and chilling out, and now we were destroying evidence after helping to take a man’s life.

[102]     The book goes on to describe the author. It says that he was first used as source by the RCMP when he was under 18. He was a coded source until 2000. It ended when Sean Simmons was murdered and he was arrested. He provided information in return for immunity and was placed in Witness Protection. Since “leaving the life of crime behind” he received a federal pardon. He served as a director of a non-profit organization that works with the victims of crime. He has been a consultant, an author and worked in a Christian ministry with a focus on preventing youth from entering criminal gangs. He participated in a documentary based on his book that aired as part of a series on “Outlaw Bikers” and aired on the History Channel and National Geographic Channel. That documentary, which was shown in court during these applications, contains re-enactments of the crime with which Steven Gareau was charged. An actor plays the part of Steven Gareau of course and the narrator describes the killing and the circumstances under which Paul Derry made his deal with the police.  Again, there was no evidence as to how many people saw those programs or how many times they were broadcasted or in what markets or how available they might be now, online.

[103]     Mr. Derry has been interviewed on radio about his books and has spoken publicly about them. He even has his own website where his life as a police informant and his involvement in this case is featured.

[104]     This matter is not about whether Paul Derry is the real deal or is some kind of poseur bent on creating a career as a writer and public speaker. What is clear is that a pivotal Crown witness has not only been outspoken about the matter. That can happen. Books and television programs take the situation well beyond interviews and Facebook posts.

[105]     And it goes even beyond that. The Crown disputed the authorship of a Tweet that was posted from an account that had previously promoted the sale of Paul Derry’s books. It is reasonable to infer that the Tweet is associated with Paul Derry or at least that most people would presume it to be associated with him. It was posted on December 8, 2017, just after the Court of Appeal decision was released in the Dean Kelsie matter.

Great timing. My new book on the justice system was to be out next year, I guess this might change the date.

[106]     The comments on the Tweet indicate that Mr. Derry would be testifying at the two “appeal trials coming up in this case”. One reply says, “Get those scumbags Paul. Keep Canada safe.”

[107]     Paul Derry is a public figure who has made his public reputation on commenting about organized crime through his involvement in this case. He promotes the sale of his books and his public speaking engagements with reference to this matter. There are implications for the reputation of the justice system of placing a man on trial for a third time for a murder that was acted out on television and recounted in published books written by a witness who has successfully endeavored to become a public figure.

[108]     There could of course be a challenge for cause to determine if potential jurors could try the case fairly. That can be the proper response for notorious cases. But this case takes notoriety to another level. The notoriety of the case has not been entirely a natural response to public interest. It is not just about media response to the public interest in the trial. Mr. Derry has actively promoted it. It has been made notorious by a participant. While there are concerns that the right to a fair trial would be compromised, the testimony of Paul Derry, whether reliable or not, would create the spectacle of the potential monetization of the criminal trial process by a participant.

                   6.  Steven Gareau’s Personal Circumstances

[109]     Steven Gareau was not a person who was caught up in crime by the incident that involved the murder of Sean Simmons. Before that he had been involved in a life of crime including a manslaughter conviction for killing his housemate. While he now looks much older than his stated age, when Sean Simmons was murdered, Steven Gareau was not a person whom most people would look forward to meeting on the street.

[110]     Gareau has been in jail for more than 17 years. That was not his choice. He has not applied for bail. His ability to propose any reasonable release conditions on a first-degree murder charge with allegations of Hells Angels involvement would be severely limited. It would be an odd situation if a person were to voluntarily remain in jail for 17 years to buttress a claim for abuse of process at the end of that time. 

[111]     Gareau’s time in jail has not been easy. It rarely is. But while it may be safe to assume that most inmates settle into an enforced routine and count the years until they are at least eligible to apply for parole, Steven Gareau was moved back and forth between the provincial and federal systems. He has been at Springhill, Renous, Kingston Penitentiary, and the Millhaven Institution, as well as both the old Halifax County Correctional Centre and the Central Nova Scotia Correctional Centre in Burnside. While serving sentences, later vacated by the Court of Appeal, he was doing federal time. When each of the appeals was successful he was moved back to the provincial system, waiting on remand for his next trial.

[112]     Because of the involvement of a criminal organization, the Hells Angels, Mr. Gareau had a significant number of “incompatibles” with whom he felt he could not be housed. He felt that he was safer living apart from others. While some of that may have been his own choice, in the circumstances his choice may not have been entirely unwise. Through choice and circumstances his time in jail has been to some significant extent been spent in special ranges or in segregation.

[113]     Since returning to Nova Scotia he has been in health care segregation, and that remains his preference. He believes that it is safer. He also has some health issues.

[114]     Mr. Gareau is not well. He is now 61 years old. He is in failing health. How he got that way or why really is not the issue. He has been confined to a wheelchair for several years. Dr. John Waddell from the Millhaven Institution was his doctor for about a year. He last saw Mr. Gareau in March 2016. He diagnosed him as having chronic non-malignant pain due to degenerative disc disease of the spine and severe spinal stenosis. The fact is that Steven Gareau has that condition. He is confined to a wheelchair and Dr. Waddell noted that in the prison environment that is a sign of weakness that marks a person as a target.

[115]     Mr. Gareau has paraphrenia or delusions of infestation. He believes that infectious agents are infesting his body. They are not. But that is a belief expressed by Mr. Gareau. He refused to be treated by a psychiatrist because he believes the issue is the infestation not his mental condition. Dr. Waddell described how this caused Mr. Gareau to stuff Kleenex into his nostrils, ears, belly button, anus, and penis to prevent those infectious agents from getting into his body.

[116]     Mr. Gareau has a Hepatitis C infection, functional bowel disorder, colonic polyps, and reduced hearing in his right ear.

[117]     Steven Gareau is not alleging that he was made unhealthy by the prison system or by the stress of more than 17 years of jail and 2 murder trials. It is simply a fact that he is unwell. He is a 61 year old man in a wheelchair in prison.

 

3)     Conclusion

[118]     A murder charge is a serious matter. Issuing a stay with respect to such a charge could be seen as potentially allowing a murderer to go free. That itself has implications for the perception of the integrity of the justice system. That must be weighed in the balance against the damage that would be done by allowing a third trial to proceed in these circumstances. 

[119]     Seventeen years is a long time. It is a very long time to be in jail, protesting one’s innocence, still not having had a trial that was sufficiently fair to have its result conclude the case.

[120]     While some of that time can be attributable to Mr. Gareau’s inaction, and arguments can be made about the details of just how much of that time that he is responsible for himself, it does not change the fact that he has been in prison for 17 years. He has not been avoiding justice and finding ways to put off trials on the merits while he just goes on with his life. He has had two fatally flawed trials, two successful appeals and spent 10 years in jail serving sentences that have been overturned. 

[121]     In a third trial, at 61 years old, confined to a wheelchair and in failing health, Steven Gareau would face Paul Derry. For Mr. Derry the trial would hold interests beyond those of a typical witness. He would be retelling a story that he had told many times before in many different formats and to many different audiences. A Vetrovec warning, cautioning jurors about the dangers inherent in founding a conviction on the unconfirmed testimony of a person noted at least as having once been an “unsavory” character could not adequately address the concerns surrounding the unusual circumstances of this Vetrovec witness. Other witnesses would be recalling a combination of 17-year-old memories, their testimony from one of the earlier trials, various reports of those trials and referring to their notes. Public confidence in a verdict obtained under such conditions would be so understandably low as to bring into question the integrity of the justice system in whose name the verdict would be rendered.

[122]     Those issues support the conclusion that a third trial could not be fair and would also undermine the integrity of the judicial process. No remedy could secure a fair trial and no remedy could preserve the honour of the system that allowed such a trial to take place. That is so even considering the serious nature of the charge and the interests of society in seeing it brought to trial on the merits.   

[123]     A stay is ordered to prevent an abuse of process in the form of a third trial from taking place.

 

 

Campbell, J.