Abuse of Process

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General Principles

See also: Principles of Fundamental Justice

The doctrine of abuse of process exists both at common law and under s. 7 of the Charter. However, for most practical purposes the doctrine is entirely encompassed by the Charter.[1]

The doctrine arises out of two protections within s. 7 of the Charter. It protects against abuses that:[2]

  1. affect the "fair trial" rights under s. 7, or
  2. falls into the "residual" protection of s. 7 of the "integrity of the judicial system".

The purpose of the doctrine is "to preserve the integrity of the process through which justice is administered in the community, not to provide a remedy for the breach of individual rights".[3]

The doctrine intends to "protect the integrity of the courts’ process and the administration of justice from disrepute".[4] it is also "intended to guard against state conduct that society find unacceptable, and which threatens the integrity of the justice system".[5]

Where an abuse is found the judge has "wide discretion to issue a remedy – including the exclusion of evidence or a stay of proceedings – we're doing so is necessary to preserve the integrity of the justice system for the fairness of trial".[6]

Earlier cases stated that abuse of process would be engaged where compelling "the accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency", or where the proceedings are "oppressive or vexatious"".[7]

The Crown conduct warranting a stay must be "egregious and seriously compromis[e] trial fairness and/or the integrity of the justice system".[8]

Residual Category
This second residual category "addresses the panoply of diverse circumstances in which a prosecution is so tainted that it attains a threshold of unfairness or vexatiousness that commands judicial intervention because the conduct so contravenes fundamental notions of justice that it undermines the integrity of the judicial process".[9]

Where the alleged abuse "poses no threat to trial fairness, but risks undermining the integrity of the judicial process" then the abuse must be categorized under the "residual" branch of the doctrine.[10]

Burden of Proof
The burden is upon the accused to establish on a balance of probabilities that a stay is warranted.[11]

For an application under either category, the applicant must establish:[12]

  1. There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome”;
  2. There must be no alternative remedy capable of redressing the prejudice; and
  3. Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits” (ibid., at para. 57).

Uncertain Cases
There the circumstances are "close to the line" and the judge is "uncertain" about whether a stay is warranted, the judge may rely upon the "the balancing of the interests in granting a stay against society's interest in having a trial on the merits".[13]

  1. R v Schacher, 2003 ABCA 313 (CanLII) at para 10
    R v O'Connor, 1995 CanLII 51 (SCC), [1995] 4 SCR 411, at paras 70, 71
  2. R v Nixon, 2011 SCC 34 (CanLII) at paras 36 and 42
    R v Zarinchang, 2010 ONCA 286 (CanLII)
  3. R v Light, 1993 CanLII 1023 (BC CA)
  4. R v Campbell, [1999] 1 SCR 565, 1999 CanLII 676 (SCC)
  5. R v Babos, 2014 SCC 16 (CanLII) at para 35
  6. Babos, supra at para 32
  7. R v Keyowski, 1988 CanLII 74 (SCC), [1988] 1 SCR 657
  8. R v Anderson, 2014 SCC 41 (CanLII) at para 50
  9. Schacher, supra at para 10
  10. R v Paryniuk, 2017 ONCA 87 (CanLII) per Watt JA, at para 64
    R v Babos, 2014 SCC 16 (CanLII) at para 31
    R v O'Connor, 1995 CanLII 51 (SCC) at para 73
  11. R v D. (E.) (C.A.), 1990 CanLII 6911 (ON CA)
  12. R v Regan, [2002] 1 SCR 297, 2002 SCC 12 (CanLII), at para 57
    Zarinchang, supra at para 56
    Babos, supra at para 32
  13. Regan, supra, at para 57
    Zarinchang, supra at para 56


Generally, a judge should hear all the trial evidence before making a ruling in order to understand the extent of the prejudice.[1]

If the abusive state conduct occurs during trial, the application must be brought to the judge before the jury renders a verdict.[2]

  1. R v Bero, 2000 CanLII 16956 (ON CA), (2000), 151 CCC (3d) 545 (Ont.C.A.) at para 18
  2. R v Henderson, 2004 CanLII 33343 (ON CA), at paras 29 to 41

Categories of Abuse of Process