Home invasions

Violent home invasions are among the most terrible of crimes. A home should be a refuge from the world, a place of peace and safety. That's why Sir Edward Coke, almost 400 years ago, held:

"For a man's house is his castle, et domus sua cuique est tutissimum refugium [and each man's home is his safest refuge]."

In 2002 a series of specially brutal home invasions took place in Mississauga. A gang of thugs, wearing masks and armed with guns and knives, forced their way into homes in the early hours of the morning.  They used plastic tie wraps to bind the half asleep residents by their wrists and ankles.  The gang then did whatever was necessary to get the victims to cooperate in locating valuables. 

The gang inflicted dreadful abuse upon some of the victims, including:

1.     confining an elderly woman and telling her she would be shot if something went wrong;

2.     using a knife to carve a dollar sign into a man's back and to try to cut off his finger;

3.     grabbing an eight-year old, pushing her down, telling her to say goodbye to her parents, and threatening the child's parents that they would take her unless all their money was handed over; and

4.     sexually assaulting a woman by placing a gun in her mouth while digitally penetrating her vagina, and by placing a gun in her vagina.

It is hard to find any sympathy for those committing such horrific crimes. Put otherwise it is not hard to understand investigating police and prosecutors feeling righteous indignation against those they believed guilty.

Perhaps it is that anger that explains why, when a gang member surrendered, he was badly beaten by police.

In 2003 one of the gang, Quang Hoang Tran, surrendered to police.

During transport from Hamilton, where Mr Tran surrendered, Peel police officers tried to get a statement. Mr Tran refused and relied on his right to silence. In reply the police officers said they would get a statement "the hard way".

On arrival at the Peel police station, Mr Tran was shoved and punched by the police officers.  They then put him in locked interview room and again demanded a statement.  Mr Tran remained silent.  One officer punched Mr Tran in the ribs and the jaw.  Mr Tran's mouth bled profusely but still he would not talk.  In fact, he might have had trouble talking even if he wanted to as his jaw had been broken in two places.

The officers gave up trying to get a statement and attempted to conceal their assault.  They cleaned up the blood in the interview room.  They placed Mr Tran in front of a video camera and tried (unsuccessfully) to get him to say that he had hit his chin on the table.  

At trial Mr Tran's lawyers sought to stay the charges on the basis his constitutional rights had been breached by the police. There was little doubt as to the breach -- Mr Tran had surrendered into custody and posed no danger to the officers. Indeed, he was beaten specifically to make him give up his right to silence.

Arguably making matters worse, the officers who attacked Mr Tran remained unchastised and took a full role in the prosecution case.  Indeed, until the trial judge held it inappropriate in the circumstances, one of the officers sat with the prosecutor at the counsel table in court. The question was not whether there was breach of Mr Tran's rights but rather what followed from the breach.

The assault of a prisoner by police intent on forcing a confession is as despicable a form of misconduct as can be imagined. On the other hand, the victims of the home invasion surely they deserved vindication by convicting those who tortured them? These were the alternatives for the Court to consider. At trial the judge held Mr. Tran, while abused, must still be convicted and serve a sentence. He reduced the sentence to take into account the police misconduct.

The Court of Appeal, while recognising a stay for police misconduct must be very rare, overturned the trial judge and ruled the police misconduct so serious as to make a stay necessary. Mr. Tran was not to be convicted.

The Court unanimously held:

"It is essential for the court to distance itself from this kind of state misconduct – an unwarranted, grave assault causing bodily harm, delayed medical attention, a cover up that included perjury, a prosecutorial response that affected the perception of trial fairness and no effective response.  Not to do so would be to leave the impression that it tacitly approves of it."

One might question whether society as a whole is as troubled by Mr Tran's broken jaw as by the harm to the woman who had a gun put in her vagina, however the Court's view is clear.  The police conduct, and the lack of sanctions for that conduct, meant any prosecution of Mr Tran would bring the administration of justice into disrepute and so the charges had to be stayed.