Abuse of Process Remedies

From Criminal Law Notebook


This page was last substantively updated or reviewed January 2015. (Rev. # 94369)

General Principles

See also: Charter Remedies

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 proceedings on grounds of abuse of process.[5]

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

Burden

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 Before a Stay Can be Ordered

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]

The use of a stay of proceedings is a prospective, not a retrospective remedy.[10]

The merit of a stay "depends upon the effect of the conduct amounting to an abuse of process or other prejudice on the fairness of the trial."[11]

Borderline Cases

Where there is uncertainty whether a stay is a warranted for a finding of a breach of the Charter, the court should consider (in addition to the two standard critera) whether "it will be appropriate to balance the interests that would be served by the granting of a stay of proceedings against the interest that society has in having a final decision on the merits."[12] Where the misconduct is "egregious" it should never be "overtaken by some passing public concern" that there is a compelling societal interest in a full hearing.[13]

Standard of Review

The decision to stay a proceeding is a discretionary decision that is afforded deference and should only intervene where there was misdirection on the law or if decision amounts to an "injustice."[14]

  1. R v Jewitt, 1985 CanLII 47 (SCC), [1985] 2 SCR 128, per Dickson CJ
    R v O’Connor, 1995 CanLII 51 (SCC), [1995] 4 SCR 411, at para 73
  2. Jewitt, supra
    see also R v Conway, 1989 CanLII 66 (SCC), [1989] 1 SCR 1659, per L'Heureux‑Dubé J ("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. Jewett, supra
    R v Wood, 2007 NSPC 39 (CanLII), per Tufts J
  4. R v Maxner, 1981 CanLII 3285 (NS CA), (1981), 22 CR (3d) 193, per Jones JA
    Re R. and Lizee, 1978 CanLII 2463 (BC SC), 42 CCC (2d) 173, (BCSC), per Rae J
    R v Lebrun, 1978 CanLII 2429 (BC CA), 45 CCC (2d) 300, 7 CR (3d) 93, [1979] 1 WWR 764 (BCCA), per Bull JA
  5. R v Stupp, Winthrope and Manus, 1982 CanLII 1897 (ON SC), 2 CCC (3d) 111, per Craig J
  6. R v Zaluski, 1983 CanLII 2384 (SK QB), 7 CCC (3d) 251, per Matheson
  7. O'Connor, supra
    R v Regan, 2002 SCC 12 (CanLII), [2002] 1 SCR 297, per LeBel J, at para 53
    R v Taillefer; R v Duguay, 2003 SCC 70 (CanLII), [2003] 3 SCR 307, per LeBel J, at para 117 (should be ordered "only in exceptional circumstances")
    R v Keyowski, 1988 CanLII 74 (SCC), [1988] 1 SCR 657, per Wilson J
  8. Regan, supra
  9. R v Leduc, 1993 CanLII 80 (SCC), [1993] 3 SCR 641, per Sopinka J, ("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.")
  10. Regan, supra, at para 54
  11. R v La, 1997 CanLII 309 (SCC), [1997] 2 SCR 680, per Sopinka J, at para 27 ("The appropriateness of a stay of proceedings depends upon the effect of the conduct amounting to an abuse of process or other prejudice on the fairness of the trial. ... Unless it is clear that no other course of action will cure the prejudice that is occasioned by the conduct giving rise to the abuse, it will usually be preferable to reserve on the application.")
  12. Regan, supra, at para 57
  13. Regan, supra, at para 57
  14. R v Cloutier, 2011 ONCA 484 (CanLII), 272 CCC (3d) 291, per Weiler JA, at para 71 ("An appellate court will only be justified in interfering with the decision if the trial judge misdirected himself or herself on the law or if the decision is so clearly wrong as to amount to an injustice")

Procedure

The consideration of a stay of proceedings for abuse of process should "reserved" until after hearing "some or all the evidence" of the case (usually after trial) such that there is a evidentiary record of the circumstances of the abuse.[1]

It has been said that "except where the appropriateness of a stay is manifest at the outset of proceedings", the judge should reserve any stay motion until after the trial evidence has been heard so that the full degree of prejudice can be assessed.[2]

It is at the discretion of the court to rule on the stay remedy immediately, or upon hearing some or all of the evidence.[3]

Should an application for a stay be denied at an earlier stage in proceedings it may be renewed if there is a material change in circumstances.[4]

Jury Trial

The judge has no jurisdiction to entertain a stay application after the jury has rendered a verdict.[5]Any request for a stay must occur before the jury begins deliberation.[6] At a minimum, it must be brought before the jury returns with a verdict.[7]

  1. R v La, 1997 CanLII 309 (SCC), [1997] 2 SCR 680, per Sopinka J, at para 27 ("...the trial judge has a discretion as to whether to rule on the application for a stay immediately or after hearing some or all of the evidence. Unless it is clear that no other course of action will cure the prejudice that is occasioned by the conduct giving rise to the abuse, it will usually be preferable to reserve on the application.")
    R v Andrew (1992), 60 OAC 324(*no CanLII links) , at p. 325 (“is patent and clear, the preferable course for the court is to proceed with the trial and then assess the issue of the violation in the context of the evidence as it unfolded at trial”)
  2. R v Bero, 2000 CanLII 16956 (ON CA), 151 CCC (3d) 545, per Doherty JA ("This Court has repeatedly indicated that except where the appropriateness of a stay is manifest at the outset of proceedings, a trial judge should reserve on motions such as the motion brought in this case until after the evidence has been heard. The trial judge can more effectively assess issues such as the degree of prejudice caused to an accused by the destruction of evidence at the end of the trial")
  3. La, supra, at para 27 ("...the trial judge has a discretion as to whether to rule on the application for a stay immediately or after hearing some or all of the evidence")
  4. La, supra, at para 28 ("even if the trial judge rules on the motion at an early stage of the trial and the motion is unsuccessful at that stage, it may be renewed if there is a material change of circumstances")
  5. R v Grant (I.M.), 2009 MBCA 9 (CanLII), 240 CCC (3d) 462, per Chartier JA
  6. Grant, ibid., at para 21 ("But what is absolutely certain in terms of timing is that the stay request and the decision on its merits must be made before the jury starts its deliberations.")
  7. R v Henderson, 2004 CanLII 33343 (ON CA), 189 CCC (3d) 447, per Feldman JA("the motion for a remedy must be brought before the jury’s verdict is registered")

Costs

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), 143 CCC (3d) 417, per Bateman JA, at paras 18, 50 to 51
  2. Cole, ibid., at para 52
  3. Cole, ibid., at para 52
  4. Cole, ibid., at para 52