Abuse of Process Remedies

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General Principles

The available remedies to an applicant who is able to establish an abuse of process include a stay of proceedings and costs.

Stay of Proceedings

See also: Stay of Proceedings

A court has a "residual discretion" to order a stay of proceedings where there is a finding of abuse of process.[1] This will apply in such circumstances where "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."[2]

Jurisdiction to Stay Proceedings
A provincial court judge has the jurisdiction to make an order remedying any abuse of process.[3]

Only superior courts have jurisdiction to stay proceedings on a non-Charter based abuse of process motion.[4]

A preliminary inquiry judge may not stay a proceedings on grounds of abuse of process.[5]

A provincial court judge cannot stay a proceeding for abuse of process before the defence election has been made.[6]

The onus is on the accused to prove the stay is appropriate. It is a high onus as the charges can never be prosecuted and so it should only be given in the "clearest of cases".[7]

Requirements for a Stay
Regardless of the basis for abuse of process, a stay can only be entered where:[8]

  1. the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and
  2. no other remedy is reasonably capable of removing that prejudice.

It should be shown that the "conduct complained of violated those fundamental principles of justice which underlie the community’s sense of fair play and decency".[9]

  1. R v Jewitt, 1985 CanLII 47 (SCC), [1985] 2 SCR 128
    R v O’Connor, 1995 CanLII 51 (SCC), [1995] 4 SCR 411 at para 73
  2. Jewitt
    see also R v Conway, 1989 CanLII 66 (SCC), [1989] 1 SCR 1659 ("where the affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases, then the administration of justice is best served by staying the proceedings.")
  3. R v Jewett
    R v Wood, 2007 NSPC 39 (CanLII)
  4. R v Maxner (1981), 22 C.R. (3d) 193 (NSCA)
    Re R. and Lizee, (1978), 42 CCC (2d) 173, (B.C.S.C.)
    R v Lebrun, 45 CCC (2d) 300, 7 C.R. (3d) 93, [1979] 1 W.W.R. 764 (BCCA)
  5. Regina v Stupp, Winthrope and Manus, 1982 CanLII 1897 (ON SC)
  6. R v Zaluski, 1983 CanLII 2384 (SK QB)
  7. R v O’Connor
    Regan at para 53
    R v Taillefer; R v Duguay, 2003 SCC 70 (CanLII) at para 117 (should be ordered "only in exceptional circumstances")
    R v Keyowski, 1988 CanLII 74 (SCC), [1988] 1 SCR 657
  8. R v Regan, 2002 SCC 12 (CanLII), [2002] 1 SCR 297
  9. R v Leduc, [1993] 3 SCR 641, 1993 CanLII 80 (SCC), ("The power to stay proceedings on the ground of abuse of process must only be exercised in the clearest of cases and when it is shown that the conduct complained of violated those fundamental principles of justice which underlie the community’s sense of fair play and decency.")


See also: Costs

Costs does not automatically follow a finding of an abuse of process. It is only in the "rare and exceptional" cases.[1]

The conduct must go beyond "inadvertent or careless failure" and would cross into "recklessness, conscious indifference to duty, or whether conscious or otherwise, a marked and unacceptable departure from usual and reasonable standards of prosecution".[2] The consequences must amount to "an indisputable and clearly measurable infringement or denial of a right".[3]

The purpose for costs, being to ensure compliance or show disapproval of the serious prejudicial conduct, must be "founded in circumstances of clear and obvious compensatory need".[4]

  1. R v Cole, 2000 NSCA 42 (CanLII), at para 18, 50, 51
  2. Cole at para 52
  3. Cole at para 52
  4. Cole at para 52