R v Scott

R. v. Scott

[1990] 3 S.C.R. 979
Supreme Court of Canada — Cory J. (majority), McLachlin J. (dissenting) | December 13, 1990

Background

Winston Scott was charged with trafficking cocaine after undercover officer Ronald Wretham conducted a five-month investigation. The case started when Scott approached Wretham at Winston Ross's auto body shop, leading to multiple drug sales. During Scott's first trial, defense counsel tried to cross-examine the investigating officer about why Ross had been arrested the same day as Scott — a question that would have revealed the identity of a police informer.

When the trial judge indicated he would allow the questioning despite Crown objections, Crown counsel immediately stayed the proceedings under s. 508(1) of the Criminal Code to protect the informer's identity. The Crown then re-instituted the proceedings under s. 508(2) before a different judge, who refused to allow the same line of questioning and ultimately convicted Scott.

Issues

1. Did the Crown's decision to stay proceedings and restart before a new judge constitute an abuse of process?
2. Was Scott denied his right to make full answer and defence when refused the opportunity to question the informer's identity and call witness Ross on entrapment?

The Abuse of Process Finding

Four justices found clear abuse of process. McLachlin J.'s dissenting reasons (joined by Lamer C.J. and La Forest J.) emphasized that using s. 508 to circumvent unfavorable rulings creates systemic problems: it gives the Crown an advantage unavailable to accused persons, amounts to "judge-shopping," and undermines the integrity of the judicial process. The Crown had alternatives — they could have declined to call further evidence and appealed any resulting acquittal, as happened successfully in R. v. Banas and Haverkamp.

The majority disagreed, finding the Crown acted properly to protect informer identity — a recognized public interest. Cory J. emphasized the Crown acted in good faith and that Scott suffered no prejudice since he remained in custody on other matters. However, the case reveals a fundamental tension between prosecutorial discretion and fairness in the justice system.

The Entrapment Evidence Issue

A separate issue emerged when witness Ross appeared during final submissions but the trial judge refused to hear his evidence on entrapment. Following R. v. Mack, entrapment is determined separately from guilt or innocence — after conviction, not during trial. McLachlin J. found error here: since Ross's evidence related to entrapment (a post-conviction issue), not guilt, the judge should have allowed it. There was evidence connecting Ross to the transactions that could support an entrapment argument.

Key Takeaway

Crown prosecutors cannot use stays of proceedings as a "do-over" mechanism when they receive unfavorable rulings.

While this Supreme Court case involved serious criminal charges, the principle applies to all prosecutions: the proper remedy for adverse judicial rulings is appeal, not procedural manipulation. The case also demonstrates that evidence relevant to distinct legal issues (like entrapment) may be heard at appropriate times, even after the main trial concludes.