Abuse of Process by Crown Counsel

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2018. (Rev. # 95255)

General Principles

See also: Abuse of Process and Role of the Crown

Abuse of process by Crown counsel will constitute one of two forms. It is either:[1]

  1. in the exercise of prosecutorial discretion; and
  2. tactics and conduct before the court.

All "Crown decision making" is reviewable in some manner or another for abuse of process.[2]

In absence of conduct amounting to abuse of process, tactics and conduct is controllable through the court's inherent jurisdiction to control its own process.[3]

There is a high bar to be met before there can be a review of prosecutorial discretion. The judicial branch of government should not interfere with the administrative or accusatorial function of the executive branch of government unless there is "flagrant impropriety."[4]

The discretionary decisions and motives of the Crown should not be "second-guessed" by the Courts unless there is "improper motives or bad faith."[5]

Any decisions made by the Crown that form part of the core prosecutorial discretion can only be reviewed for abuse of process.[6] This would require circumstances of "flagrant impropriety."[7]

"Fairness" of the Crown can generally be assured by "compliance with procedural and evidentiary rules."[8] That being said, if conduct renders the proceeding "fundamentally unfair" due to prosecutoral conduct, then a breach of s. 7 may exist.[9]

Burden and Standard

There is a presumption that the prosecuting Crown ios acting in good faith.[10]

The burden of proof is on the applicant to prove abuse of process on a balance of probabilities.[11]

Conducting a prosecution in "a manner that contravenes the community's basic sense of decency and fair play and thereby calls into question the integrity of the system" will be a basis for a stay.[12]

It is not necessary to make findings of misconduct or improper motives for a stay of proceedings to be entered.[13]

In certain circumstance, such as a repudiated plea agreement, the burden may shift to the Crown once the applicant establishes a "proper evidentiary foundation."[14]

  1. ↑ R v Anderson, 2014 SCC 41 (CanLII), [2014] 2 SCR 167, per Moldaver J, at para 35 ("There are two distinct avenues for judicial review of Crown decision making. The analysis will differ depending on which of the following is at issue: (1) exercises of prosecutorial discretion; or (2) tactics and conduct before the court.")
  2. ↑ Anderson, ibid., at para 36
  3. ↑ Anderson, ibid., at para 36
  4. ↑ Kostuch v Attorney General, 1995 CanLII 6244 (AB CA), 43 CR (4th) 81, per curiam, at pp. 89 to 92
  5. ↑ R v Power, 1994 CanLII 126 (SCC), [1994] 1 SCR 601, per L'Heureux‑Dubé J
  6. ↑ R v Nixon, 2011 SCC 34 (CanLII), [2011] 2 SCR 566, per Charron J, at para 31
    Anderson, supra, at para 51
  7. ↑ Krieger v Law Society (Alberta), 2002 SCC 65 (CanLII), [2002] 3 SCR 372, per Iacobucci and Major JJ, at para 49
  8. ↑ Gill, 2012 ONCA 607, 96 CR (6th) 172 at para 62 ("The second category of abuse of process looks at the impact of the exercise of the prosecutorial discretion on the right to a fair trial. That right extends to the sentencing process. Fairness is generally assured by compliance with the applicable procedural and evidentiary rules.")
  9. ↑ R v Albright, 1987 CanLII 26 (SCC), [1987] 2 SCR 383 at pp. 395-96 (SCR)(complete citation pending)
  10. ↑ R v Olumide, 2014 ONCA 712 (CanLII), per curiam, at para 2
    see Krieger, supra
    Nixon, supra
  11. ↑ R v Anderson, 2014 SCC 41 (CanLII), [2014] 2 SCR 167, per Moldaver J, at para 52
    R v Cook, 1997 CanLII 392 (SCC), [1997] 1 SCR 1113, per L’Heureux-Dubé J, at para 62
    R v O'Connor, 1995 CanLII 51 (SCC), [1995] 4 SCR 411, per L’Heureux-Dubé J, at para 69
    R v Jolivet, 2000 SCC 29 (CanLII), [2000] 1 SCR 751, per Binnie J, at para 19
    Olumide, supra, at para 2
  12. ↑ O'Connor, supra, at para 63
  13. ↑ O'Connor, supra, at para 79
    R v Keyowski, 1988 CanLII 74 (SCC), [1988] 1 SCR 657, per Wilson J
  14. ↑ Nixon, supra, at paras 60 to 62
    Anderson, supra

Procedure

The Court should be presented with "overwhelming evidence that the proceedings under scrutiny are unfair."[1]

It is not always necessary that all cases require an evidential foundation of affidavits or viva voce testimony.[2]

  1. ↑ R v Power, 1994 CanLII 126 (SCC), [1994] 1 SCR 601, per L'Heureux-Dubé J, at para 17
  2. ↑ R v Roach, 2013 ABQB 472 (CanLII), per Graesser J, at para 36

Challenge to Prosecutorial Discretion

See also: Prosecutorial Discretion

The exercise of the powers of the Crown have been challenged in the following circumstances:

  1. ↑ R v KSV, 1994 CanLII 9747 (NL CA), 89 CCC (3d) 477, per Gushue JA
    R v Lafrance, 1973 CanLII 35 (SCC), [1975] 2 SCR 201, per Martland J
    R v Johnson, 1977 CanLII 229 (SCC), [1977] 2 SCR 646, per Dickson J
  2. ↑ R v Baker, 1986 CanLII 1151 (BC SC), 26 CCC (3d) 123, per Toy J
    R v Faber, 1987 CanLII 6849 (QC CS), 38 CCC (3d) 49, per Boilard J
    R v Osiowy, 1989 CanLII 5146 (SK CA), 50 CCC (3d) 189, per Vancise JA, at p. 191
    Werring v BC (AG), 1997 CanLII 4080 (BC CA), 122 CCC (3d) 343, per Esson JA
  3. ↑ R v Century 21 Ramos Realty Inc and Ramos, 1987 CanLII 171 (ON CA), 32 CCC (3d) 353, per curiam
    R v Kelly, 1998 CanLII 7145 (ON CA), 128 CCC (3d) 206, per Austin JA
  4. ↑ R v E(L), 1994 CanLII 1785 (ON CA), 94 CCC (3d) 228, per Finlayson JA
  5. ↑ R v Arviv, 1985 CanLII 161 (ON CA), 19 CCC (3d) 295, per Martin JA
    R v Moore, 1986 CanLII 4765 (MB CA), 26 CCC (3d) 474
    R v Sterling, 1993 CanLII 9146 (SK CA), 84 CCC (3d) 65, per Bayda CJ and Cameron JA - stay overturned
    R v Charlie, 1998 CanLII 4145 (BC CA), 126 CCC (3d) 513, per Southin J at pp. 521 to 522
    R v Thomas, 2017 BCSC 841 (CanLII), per Baird J
  6. ↑ R v Hanneson, 1987 CanLII 6829 (ON SC), 31 CCC (3d) 560, per O'Discoll J
  7. ↑ R v Cook, 1997 CanLII 392 (SCC), [1997] 1 SCR 1113, per L’Heureux-Dubé J, at para 21
  8. ↑ R v Light, 1993 CanLII 1023 (BC CA), 78 CCC (3d) 221, per Wood J
    R v Pasini, 1991 CanLII 3916 (QC CA), 63 CCC (3d) 436, per Kaufman J
    R v Scott, 1990 CanLII 27 (SCC), [1990] 3 SCR 979
    R v Cole, 1998 CanLII 2425 (NS SC), 126 CCC (3d) 159, per Hood J

Malicious Prosecution

To establish malicious prosecution the plaintiff must prove the following:[1]

  1. Initiated by the defendant;
  2. Terminated in favour of the plaintiff;
  3. Undertaking without reasonable and probable cause; and
  4. Motivated by malice or a primary purpose other than carrying the law into effect.
  1. ↑ Miazga v Kvello Estate, 2009 SCC 51 (CanLII), [2009] 3 SCR 339, per Charron J
    see also: Nelles v Ontario, 1989 CanLII 77 (SCC), [1989] 2 SCR 170
    Proulx v The Attorney General of Quebec, 2001 SCC 66 (CanLII), [2001] 3 SCR 9, per Iacobucci and Binnie JJ

Other Types of Prosecutions

See also: Fitness to Stand Trial
Capacity of the Accused

The accused's loss of memory due to amnesia should not provide the basis for a stay of proceedings for abuse of process.[1] So long as the accused capable of "understanding the charges, conducting his trial, and adequately communicating with his counsel" then the right to fair trial will not be impacted.[2]

Serious Health Concerns

A prosecution may be stayed for abuse of process where the accused is "suffering from such serious health concerns that the continuation of the prosecution against him or her would be" abusive.[3]

  1. ↑ R v Morrissey, 2007 ONCA 770 (CanLII), 227 CCC (3d) 1, per Blair JA, at para 75
    R v Desbiens, 2010 QCCA 4 (CanLII), 264 CCC (3d) 98
  2. ↑ Desbiens, supra, at para 41
  3. ↑ R v Hong, 2015 ONSC 4840 (CanLII), per Boswell J, at para 24 refers to it as a Michalowsky application
    R v Hong, 2015 ONSC 5114 (CanLII), per Boswell J
    R v Magomadova, 2015 ABCA 26 (CanLII), 588 AR 331, per Bielby JA
    R v TGP, 1996 CanLII 8405 (BC CA), 112 CCC (3d) 171, per McEachern JA
    R v J-GR, 2006 CanLII 21072 (ON SC), per Wein J
    R v Michalowsky, [1991] OJ No 3611(*no CanLII links)

Resiling from a Plea Deal

The Crown is generally expected to honour agreements made.[1]

When Courts Can Review

The act of negotiating a plea arrangement and revoking one is "is an act of prosecutorial discretion."[2] It is only reviewable by a court on the basis of abuse of process.[3]

Mere repudiation without prejudice or conduct that amounts to an abuse of process is not reviewable.[4]

Courts should be careful before they engage in any attempt to "second-guess" the Crown's motives behind their decision to repudiate an agreement.[5] There should be "conspicuous evidence" of some improper motive, bad faith, or acts so wrong that it "violates the conscience of the community" such that it would be "gravely unfair" to continue.[6] Such cases are "extremely rare."[7]

Effect of Repudiation

A repudiation of a plea agreement between Crown and defence may amount to a breach of s. 7 of the Charter or a breach of the common law abuse of process doctrine.[8]

Crown Cannot be Enforced to Honour Agreement

The Court has no power to force the Crown to honour a prior agreement that has since been revoked as if it were some contractual undertaking.[9]

Purpose of Protecting Plea Deals

Agreements between counsel, whether on plea or otherwise, ensure an efficient and effective administration of justice. [10]

Basis to Repudiate Agreement

The circumstances where repudiation should be considered acceptable must remain "very rare."[11]

It is suggested that the Crown may be able to repudiate a plea and sentence agreement where there Crown subsequently discovers additional charges pending against the accused.[12]

Where a summary election was contingent on a guilty plea that it ultimately reneged by defence, the Crown has the ability to re-elect to proceed by indictment.[13]

A resolution that is repudiated in response to complainant objection is potentially abusive under the residual abuse doctrine.[14]

Abuse by Crown Refusing Defence Settlement Proposal

The Crown discretion to choose to accept (or reject) pleas for lesser offences is subject to abuse of process consideration.[15] It would only be in "exceptional circumstances that the exercise of discretion of this type would be abusive.[16]

Crown Response to Defence Repudiation of Plea Deal

Where there is an agreement to elect to proceed summarily in exchange for a guilty plea, the Crown has the right to have the election struck and replaced with an indictable election, should the defence repudiate the agreement.[17]

  1. ↑ R v Goodwin, (1981), 21 CR (3d) 263(*no CanLII links)
    R v Betesh, 1975 CanLII 1451 (ON CJ), [1975] OJ No 36 (Ont. Ct. J.), per Graburn J
    R v Smith, 1974 CanLII 1653 (BC SC), [1974] BCJ No 776 (SC), per Berge J
  2. ↑ R v Nixon, 2011 SCC 34 (CanLII), [2011] 2 SCR 566, per Charron J, at paras 29 to 31
  3. ↑ Nixon, ibid., at para 31 ("Thus, it follows that the Crown’s ultimate decision to resile from the plea agreement and to continue the prosecution is subject to the principles set out in Krieger: it is only subject to judicial review for abuse of process.")
  4. ↑ Nixon, ibid., at para 45
  5. ↑ R v Power, 1994 CanLII 126 (SCC), [1994] 1 SCR 601, per L'Heureux-Dubé J("courts should be careful before they attempt to "second‑guess" the prosecutor's motives when he or she makes a decision.")
  6. ↑ Power, ibid.("conspicuous evidence of improper motives or of bad faith or of an act so wrong that it violates the conscience of the community, such that it would genuinely be unfair and indecent to proceed")
  7. ↑ Power, ibid.
  8. ↑ see R v M(R), 2006 CanLII 32999 (ON SC), [2006] OJ No 3875, per Hill J
  9. ↑ Nixon, supra, at para 45 ("A plea agreement cannot be summarily enforced by the court as any other lawyers’ undertaking, as Ms. Nixon contends."), see also paras 44 to 49.
  10. ↑ R v Dewald, 2001 CanLII 4721 (ON CA), 156 CCC (3d) 405, per Laskin JA (2:1)
  11. ↑ Nixon, supra, at para 48 ("As a result, I reiterate that the situations in which the Crown can properly repudiate a resolution agreement are, and must remain, very rare.")
  12. ↑ e.g. R v Wood, 2007 NSPC 39 (CanLII), per Tufts J
  13. ↑ R v De La Cruz, 2003 CanLII 45233 (ON CA), 178 CCC (3d) 128, per curiam
  14. ↑ R v Strybosch, 2021 ONSC 6109 (CanLII), per Goodman J
  15. ↑ R v Conway, 1989 CanLII 66 (SCC), [1989] 1 SCR 1659, per L'Heureux‑Dubé J
  16. ↑ Conway, ibid.
  17. ↑ De La Cruz, supra

Other Conduct

Breach of Solicitor-Client Privilege

A stay may be warranted where the Crown gains access to defence documents that are protected by solicitor-client privilege.[1] There mere possession of these documents creates a rebuttable presumption of prejudice.[2]

Interview of Witnesses

The pre-charge interview of complainants by the Crown may raise some difficulties but is not abusive per se and may serve as a reasonable practice to avoid harmful or arbitrary results.[3]

Judge Shopping

Any form of "judge shopping" by the Crown is "unacceptable" as it is unfair and "tarnishes the reputation of the justice system."[4]

Accidental Breach of Privilege

Where the Crown accidentally discloses privileged information that would tend to identify an informant is not sufficient grounds to warrant a stay.[5]

Promise Not to Prosecute

A promise to not prosecute an accused if they told the truth does not prohibit the Crown from prosecuting the accused where it was demonstrably shown that the accused lied in giving the statement.[6]

  1. ↑ R v Bruce Power Inc, 2009 ONCA 573 (CanLII), 245 CCC (3d) 315, per Armstrong JA
    R v Rudolph, 2017 NSSC 333 (CanLII), per Boudreau J
  2. ↑ Bruce Power Inc, ibid.
  3. ↑ R v Regan, 2002 SCC 12 (CanLII), [2002] 1 SCR 297, per LeBel J, at para 91
  4. ↑ Regan, ibid., at para 61
  5. ↑ R v Bains, 2010 BCCA 178 (CanLII), 254 CCC (3d) 170, per D Smith JA
  6. ↑ R v MacDonald, 1990 CanLII 11021 (ON CA), 54 CCC (3d) 97, per Zuber JA

Prosecutions After Termination of Charges

Re-Laying Charges

A re-laying of an information after withdrawing charges at trial or on preliminary inquiry can be found to be abusive.[1] However, a stay during a trial is not necessarily always going to be abusive.[2] In has been found to be permissible where there is no "oppression, prejudice, harassment, or manifest hardship upon the accused."[3]

An improperly laid hybrid charge withdrawn after the 6 month limitation period and then replaced with the proper charges and elected to proceed by indictment may be sufficient to stay a charge.[4]

Prosecution On Re-Trial

Repeated prosecutions against an accused for the same offence would fall under the residual category of the abuse doctrine and is an example "in which the integrity of the justice system is implicated in the absence of state misconduct."[5]

There is some suggestion that an attempt to prosecute an accused after two or three failed trials is inherently abusive and the charges should be stayed except in "very rare cases."[6]

Consideration on this issue should include whether the Crown had a full opportunity to put its case to the jury.[7]

  1. ↑ R v Sabourin, 2007 MBQB 53 (CanLII), 154 CRR (2d) 250, per Suche J - Judge comments that there should have been a direct indictment instead
    R v Ferguson, [1978] AJ No 1001 (ABPC)(*no CanLII links) , per Porter PCJ - Crown withdrew charges on day or trial and re-laid it a few days later
    R v Weightman and Cunningham, 1977 CanLII 1947 (ON CJ), [1977] OJ No 2592, per Zabel PCJ - Crown pulls charges mid-trial and re-laid them, the judge found the conduct "vexatious and oppressive"
    R v Cole, 1998 CanLII 2425 (NS SC), [1998] NSJ No 245, per Hood J
  2. ↑ R v Beaudry, 1966 CanLII 537 (BC CA), 1966 CarswellBC 114 (CA), per Bull JA
    R v Smith, 1992 CanLII 12818 (BC CA), 1992 CarswellBC 407 (CA), per Hollinrake JA
    R v Scott, 1990 CanLII 27 (SCC), [1990] 3 SCR 979, per Cory J
    R v Panarctic Oils Ltd, 1982 CanLII 2990 (NWT SC), 1982 CarswellNWT 37 (S.C.), per de Weerdt J
    R v Ball, 1978 CanLII 2268 (ON CA), 1978 CarswellOnt 1227 (CA), per Jessup JA
  3. ↑ Ball, ibid., at para 19
    Roach, supra, at para 45
  4. ↑ R v Boutilier, 1995 CanLII 4169 (NS CA), 104 CCC (3d) 327, per Freeman JA
  5. ↑ R v Badgerow, 2014 ONCA 272 (CanLII), 311 CCC (3d) 26, per Strathy JA, at para 199
    R v Babos, 2014 SCC 16 (CanLII), [2014] 1 SCR 309, per Moldaver J, at para 37 ("Two points of interest arise from this description. First, while it is generally true that the residual category will be invoked as a result of state misconduct, this will not always be so. Circumstances may arise where the integrity of the justice system is implicated in the absence of misconduct. Repeatedly prosecuting an accused for the same offence after successive juries have been unable to reach a verdict stands as an example")
  6. ↑ R v Keyowski, 1988 CanLII 74 (SCC), [1988] 1 SCR 657, per Wilson J
    R v Jack, 1997 CanLII 356 (SCC), [1997] 2 SCR 334, aff’g (1996), 1996 CanLII 1889 (MB CA), 113 Man. R. (2d) 260 (CA)
    R v Hunter, 2001 CanLII 5637 (ON CA), 54 OR (3d) 695, per Goudge JA
    R v L(A), 2004 CanLII 32136 (ON CA), 183 CCC (3d) 193, per curiam
    R v Taillefer, 2003 SCC 70 (CanLII), [2003] 3 SCR 307, per LeBel J
    R v Beaulac, 1999 CanLII 684 (SCC), [1999] 1 SCR 768, per Bastarache J
    R v Ellard, 2009 SCC 27 (CanLII), [2009] 2 SCR 19, per Abella J
    R v Vanezis, 2006 CanLII 37954 (ON CA), 83 OR (3d) 241, per Moldaver JA
    cf. Badgerow, supra
  7. ↑ Badgerow, supra, at para 196 ("I do not find it necessary to resolve this issue [relating to abuse through re-prosecution], because highly probative and admissible evidence was excluded at the previous trials. As a result, the Crown did not have a full opportunity to put its case before the jury at any of the previous trials. Moreover, the application judge’s assumption that the evidence will be not be stronger at a fourth trial cannot stand.")

See Also

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