Abuse of Process by Law Enforcement

From Criminal Law Notebook
Jump to: navigation, search

General Principles

See also: Abuse of Process and Role of Law Enforcement

Police misconduct towards an accused in certain cases can lead to a stay of proceedings under s. 24(1) of the Charter on the basis that it violates the abuse of process doctrine.[1] This type of grounds to stay proceedings falls into the "residual category" of the abuse of process doctrine.[2]

Abuse by police does not by itself give rise to an abuse of process, but rather is a factor in whether to grant a stay.[3]

The police are entitled to use "lawful stratagems, even amounting to reasonable trickery, to gather evidence".[4]

It is recognized that a lot is expected of police officers and so must not "impose an unrealistic standard" as they are often do not have the ability to decide through "quiet deliberation or hindsight".[5]

Evaluating the lawfulness of police conduct should be considered in light of:[6]

  1. the duty being performed;
  2. the extent to which some interference with individual liberty is necessitated in order to perform that duty;
  3. the importance of the performance of that duty to the public good;
  4. the liberty interfered with; and
  5. the nature and extent of the interference.

Courts will stay charges where police powers have been abused in light of factors including:[7]

  1. the need to dispel any notion that the police are above the law in performing their duties;
  2. the potential for a positive prospective effect on the police in applying provisions of the Criminal Code or otherwise performing police duties;
  3. the obligation of the courts to preserve the integrity of the justice system by not allowing their processes to be used in the face of serious police misconduct;
  4. the necessity to avoid giving tacit approval of the misconduct in issue; and
  5. the absence of an alternative remedy and the importance of providing a remedy that will act as a deterrent against the abuse of police powers.
  1. R v Ahmed, 2011 ONSC 2551 (CanLII): obstruction charge stayed
    R v Maskell, 2011 ABPC 176 (CanLII): impaired charges stayed
  2. Ahmed at para 51
  3. R v Campbell, 1999 CanLII 676 (SCC), [1999] 1 SCR 565
  4. R v Grandinetti, 2003 ABCA 307 (CanLII) at paras 36-42
  5. R v Dunn, [1992] O.J. No. 685(*no CanLII links)
  6. R v Simpson, [1993] O.J. No. 308, 1993 CanLII 3379 (ON CA), per Doherty at para 55
  7. R v Knight, 2010 ONCJ 400 (CanLII) at para 26
    R.v. Cheddie, [2006] O.J. No. 1585 (S.C.J.)(*no CanLII links)
    R.v. O’Connor, 1995 CanLII 51 (SCC), (1995), 103 CCC (3d) 1 (S.C.C.)

Use of Force

Charges have been stayed on the basis of police using tasers or pepper spray where they were not warranted.[1] As well as where excessive force has been used while arresting the accused.[2]

The accused has the onus to show that he was subject of excessive force.[3]

  1. See R v Fryingpan, 2005 ABPC 28 (CanLII), [2005] A.J. No. 102 - tasered during arrest
    R v J.W., 2006 ABPC 216 (CanLII), [2006] A.J. No. 1097
    R v Merrick, 2007 CarswellOnt 3855 (O.C.J.)(*no CanLII links) - stayed for use of taser during arrest
    R v Wiscombe, 2003 BCPC 418 (CanLII), [2003] BCJ No. 2858
    R v Spannier, 1996 CanLII 978 (BC SC), [1996] BCJ No. 2525 (B.C.S.C.) - pepper spray while being put in detention cells
  2. R v Cheddie, [2006] O.J. No. 1585(*no CanLII links) - officer struck and kicked accused during arrest and search
    R v Kemper, [1989] O.J. No. 3310(*no CanLII links)
    R v Gladue (1993), 23 W.C.B. (2d) 342, [1993] A.J. No. 1045(*no CanLII links) - female accused face pushed against wall
    c.f. R v Anderson, 2009 MBQB 121 (CanLII) - stay denied
  3. R v Davis, 2013 ABCA 15 (CanLII)

Invasions of Privacy

It has been successfully argued that a video camera filming an accused in lockup using the toilet is a violation of s. 8 resulting in a stay of proceedings.[1]

  1. R v Mok, 2012 ONCJ 291 (CanLII)


It has applied where police had manufactured false evidence against the accused.[1]

Police cannot report that a confidential informant is anonymous when they know the identity of the person.[2] This type of lie can result in an abuse of process.[3]

  1. R v Spagnoli and Shore, 2011 ONSC 4843 (CanLII) -- falsified anonymous source information
  2. Spagnoli, ibid.
  3. Spagnoli, ibid.

Arrest and Detention

See Arrest Procedure#Terms of Custody for details on detention procedure.

An accused who is held in custody beyond the 24 hours time limit after arrest without being brought to a justice is arbitrarily detained and charges may be stayed.[1]

For a stay of proceedings due to a breach of s. 9 during detention post-arrest, there must be some connection between the charges and the breach. [2]

  1. e.g. R v Simpson, 1995 CanLII 120 (SCC), [1995] 1 SCR 449
  2. R v Salisbury, 2011 SKQB 153 (CanLII) at para 11 (" It is accepted that there was a breach of s. 9 of the Charter. However, it occurred after the commission of the offences and after the investigation had been completed. There was no connection between the breach and the charges. ")


"Gating" refers to the practice of police to delay the execution of a process of arrest until such a time as the person is scheduled for release, resulting in an extension of their detention.[1]

The basis for "gating" is the "perceived danger to prisoner or public if the prisoner were released".[2]

The Charter does not permit investigators to charge a person at "their convenience".[3]

A stay of proceeding may be ordered where the delay in charging where the delay was due to negligence or improper motivation.[4]

A case where delaying the investigation had the effect to "marginalize a mentally disabled prisoner in the context of the criminal proceedings" was sufficient for a stay.[5]

  1. R v AWH, 2016 NSPC 65 (CanLII) ta paras 33 to 34
    R v Parisien, [1971] BCJ 649 (BCCA) - delayed execution of arrest warrant
    R v Duncan, [1999] OJ No 1977 (ONCJ) at para 27 - delay of investigation and charge because of release schedule
  2. R v Moore, [1983] OJ 228 (HCJ) at para 2
    AWH, supra at para 33
  3. R v Cardinal, [1985] AJ 1099 at para 8
  4. AWH, supra at para 35
    R v Duncan, [1999] OJ 1977 (ONCJ)
    R v Lima, 2016 ONCJ 167 (CanLII)
  5. Duncan, supra at paras 27 to 30

Delayed Charging

Mere delay in charging and prosecuting an accused "cannot, without more, justify staying the proceedings as an abuse of process at common law". To do so would amount to "imposing a judicially created limitation period for a criminal offence.".[1]

When concerning the police decision to lay charges against the accused, it is not necessary that malice be proven to be abusive.[2]

Where police charge an accused with an offence arising from a matter for which he has already been tried and convicted may result in a abuse of process where the proceedings from the new charge would "offender the community's sense of fair play and decency."[3]

  1. R v L. (W.K.), 1991 CanLII 54 (SCC), [1991] 1 SCR 1091, at page 5
  2. R v Box, 1994 CanLII 5026 (SK QB), [1994] S.J. No. 17, 118 Sask. R. 241 (Q.B.) per Gerein J.
    see also R v Keyoski, 1988 CanLII 74 (SCC), [1988] 1 SCR 657
  3. Box, ibid.


See also: Entrapment

Collecting a Civil Remedy

Where a prosecution is used solely as a means of achieving a civil remedy (such as restitution for a debt) then it would amount to a private prosecution and an abuse of process.[1] In these circumstances it should only be "exercised very sparingly and only in exceptional circumstances".[2]

  1. R v Malenfant, 1992 CanLII 7162 (NB QB)
    R v Leroux (1928), 50 CCC 52, [1928] 3 D.L.R. 688 (Ont. C.A.)(*no CanLII links)
    R v Bell (1929), 51 CCC 388, [1929] 3 D.L.R. 931 (BCCA)(*no CanLII links)
    R v Waugh, (1985), 21 CCC (3d) 80, 68 N.S.R. (2d) 247 (C.A.)(*no CanLII links)
  2. Malenfant, ibid.
    Waugh, ibid.

Lost or Destroyed Evidence

Police Trickery


See Also