View source for Abuse of Process by Law Enforcement

{{LevelZero}}{{HeaderAbuse}}
==General Principles==
{{seealso|Abuse of Process|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.<ref>
''R v Ahmed'', [http://canlii.ca/t/flj30 2011 ONSC 2551] (CanLII){{perONSC|Garton J}}: obstruction charge stayed<br>
''R v Maskell'', [http://canlii.ca/t/fm5zv 2011 ABPC 176] (CanLII){{perABPC|Groves J}}: impaired charges stayed</ref>
This type of grounds to stay proceedings falls into the "residual category" of the abuse of process doctrine.<ref>
Ahmed at para 51<br>
</ref>

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.<ref>
''R v Campbell'', [http://canlii.ca/t/1fqp4 1999 CanLII 676] (SCC), [1999] 1 SCR 565{{perSCC|Binnie J}}
</ref>

The police are entitled to use "lawful stratagems, even amounting to reasonable trickery, to gather evidence".<ref> ''R v Grandinetti'', [http://canlii.ca/t/4pvr 2003 ABCA 307] (CanLII){{perABCA|McFadyen J}} at paras 36-42</ref>

It is recognized that a lot is expected of police officers and so must not "impose an unrealistic standard" as they often do not have the ability to decide through "quiet deliberation or hindsight".<ref>
''R v Dunn'', [1992] OJ No 685{{NOCANLII}}
</ref>

Evaluating the lawfulness of police conduct should be considered in light of:<ref>
''R v Simpson'', [1993] OJ No 308, [http://canlii.ca/t/1npnx 1993 CanLII 3379] (ON CA){{perONCA|Doherty J}} at para 55<br>
</ref>
# the duty being performed;
# the extent to which some interference with individual liberty is necessitated in  order to perform that duty;
# the importance of the performance of that duty to the public good;
# the liberty interfered with; and
# the nature and extent of the interference.

Courts will stay charges where police powers have been abused in light of factors including:<ref>
''R v Knight'', [http://canlii.ca/t/2ckx6 2010 ONCJ 400] (CanLII){{perONCJ|Clark J}} at para 26<br>
''R v Cheddie'', [2006] OJ No 1585 (S.C.J.){{NOCANLII}}<br>
''R v O’Connor'', [http://canlii.ca/t/1frdh 1995 CanLII 51] (SCC), (1995), 103 CCC (3d) 1 (SCC){{Plurality}}<br>
</ref>
# the need to dispel any notion that the police are above the law in performing their duties;
# the potential for a positive prospective effect on the police in applying provisions of the Criminal Code or otherwise performing police duties;
# 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;
# the necessity to avoid giving tacit approval of the misconduct in issue; and
# 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.

{{reflist|2}}

==Use of Force==
Charges have been stayed on the basis of police using tasers or pepper spray where they were not warranted.<ref>
See ''R v Fryingpan'', [http://canlii.ca/t/1jr7x 2005 ABPC 28] (CanLII), [2005] AJ No 102{{perABPC|Easton J}} - tasered during arrest<br> 
''R v JW'', [http://canlii.ca/t/1p7vh 2006 ABPC 216] (CanLII), [2006] AJ No 1097{{perABPC|Kvill J}}<br>
''R v Merrick'', 2007 CarswellOnt 3855 (O.C.J.){{NOCANLII}} - stayed for use of taser during arrest<br>
''R v Wiscombe'', [http://canlii.ca/t/1g2kc 2003 BCPC 418] (CanLII), [2003] BCJ No. 2858{{perBCPC|Walker J}}<br>
''R v Spannier'', [http://canlii.ca/t/1f38b 1996 CanLII 978] (BC SC), [1996] BCJ No. 2525 (B.C.S.C.){{perBCSC|Edwards J}} - pepper spray while being put in detention cells<br>
</ref> As well as where excessive force has been used while arresting the accused.<ref>
''R v Cheddie'', [2006] OJ No 1585{{NOCANLII}} - officer struck and kicked accused during arrest and search<br>
''R v Kemper'', [1989] OJ No 3310{{NOCANLII}}<br>
''R v Gladue'' (1993), 23 W.C.B. (2d) 342, [1993] AJ No 1045{{NOCANLII}} - female accused face pushed against wall <br>
cf. ''R v Anderson'', [http://canlii.ca/t/23nlh 2009 MBQB 121] (CanLII){{perMBQB|Abra J}} - stay denied
</ref>

; Burden
The accused has the onus to show that he was subject of excessive force.<ref>
''R v Davis'', [http://canlii.ca/t/fvs3b 2013 ABCA 15] (CanLII){{TheCourt}} (2:1)
</ref>

{{reflist|2}}

==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.<ref> 
''R v Mok'', [http://canlii.ca/t/frb0b 2012 ONCJ 291] (CanLII){{perONCJ|West J}}</ref>

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==Dishonesty==
It has applied where police had manufactured false evidence against the accused.<ref>R v Spagnoli and Shore, [http://canlii.ca/t/fmndx 2011 ONSC 4843] (CanLII){{perONSC|Hambly J}} -- falsified anonymous source information</ref>

Police cannot report that a confidential informant is anonymous when they know the identity of the person.<ref>
Spagnoli{{ibid}}<br>
</ref> This type of lie can result in an abuse of process.<ref>
Spagnoli{{ibid}}<br>
</ref>

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==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.<ref>
e.g. ''R v Simpson'', [http://canlii.ca/t/1frmt 1995 CanLII 120] (SCC), [1995] 1 SCR 449{{perSCC|Lamer CJ}} affirming [http://canlii.ca/t/1nplw 1994 CanLII 4528] (NL CA){{perNLCA|Goodridge CJ}} </ref>

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.
<ref>
''R v Salisbury'', [http://canlii.ca/t/fl6mt 2011 SKQB 153] (CanLII){{perSKQB|Gerein J}} 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. ")</ref>

{{reflist|2}}
==="Gating"===
"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.<ref>
''R v AWH'', [http://canlii.ca/t/gvsrn 2016 NSPC 65] (CanLII){{perNSPC|Derrick J}}{{ats|33 to 34}}<br>
''R v Parisien'', [1971] BCJ 649 (BCCA), [http://canlii.ca/t/gcz3m 1971 CanLII 1171] (BC CA){{perBCCA|Branca JA}} - delayed execution of arrest warrant<br>
''R v Duncan'', [1999] OJ No 1977 (ONCJ){{NOCANLII}} at para 27 - delay of investigation and charge because of release schedule <br>
</ref>

The basis for "gating" is the "perceived danger to prisoner or public if the prisoner were released".<ref>
''R v Moore'', [1983] OJ 228 (HCJ), [http://canlii.ca/t/g1h2m 1983 CanLII 1677] (ON CA){{perONCA|Dubin JA}}{{at|2}}<br>
AWH{{supra}} at para 33<br>
</ref>

The Charter does not permit investigators to charge a person at "their convenience".<ref>
''R v Cardinal'', [1985] AJ 1099, [http://canlii.ca/t/2dgrx 1985 ABCA 157] (CanLII){{perABCA|Kerans JA}}{{at|8}}<br>
</ref>

A stay of proceeding may be ordered where the delay in charging where the delay was due to negligence or improper motivation.<ref>
AWH{{supra}} at para 35<br>
{{supra1|Duncan}}<br>
''R v Lima'', [http://canlii.ca/t/gp0k0 2016 ONCJ 167] (CanLII){{perONCJ|George J}}<br>
</ref>

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.<ref>
{{supra1|Duncan}} at paras 27 to 30<br>
</ref>

{{reflist|2}}

==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.".<ref>
''R v WKL'', [http://canlii.ca/t/1fsl0 1991 CanLII 54] (SCC), [1991] 1 SCR 1091{{perSCC|Stevenson J}} at page 5<br>
</ref>

When concerning the police decision to lay charges against the accused, it is not necessary that malice be proven to be abusive.<ref>
''R v Box'', [http://canlii.ca/t/1nr5m 1994 CanLII 5026] (SK QB), [1994] S.J. No. 17, 118 Sask. R. 241 (Q.B.){{perSKQB|Gerein J}} 
<br>
see also ''R v Keyoski'', [http://canlii.ca/t/1ftg7 1988 CanLII 74] (SCC), [1988] 1 SCR 657{{perSCC|Wilson J}}<br>
</ref>

Where police charge an accused with an offence arising from a matter for which he has already been tried and convicted may result in an abuse of process where the proceedings from the new charge would "offender the community's sense of fair play and decency."<ref>
{{ibid1|Box}}
</ref>

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==Entrapment==
{{seealso|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.<ref>
''R v Malenfant'', [http://canlii.ca/t/fvtsg 1992 CanLII 7162] (NB QB){{perNBQB|Landry J}}<br>
''R v Leroux'' (1928), 50 CCC 52, [1928] 3 DLR 688 (Ont. C.A.), [http://canlii.ca/t/gw8t3 1928 CanLII 455] (ON CA){{perONCA|Grant JA}}<br>
''R v Bell'' (1929), 51 CCC 388, [1929] 3 DLR 931 (BCCA), [http://canlii.ca/t/gbvxz 1929 CanLII 280] (BC CA){{perBCCA|Macdonald CJ}}<br>
''R v Waugh'', (1985), 21 CCC (3d) 80, 68 N.S.R. (2d) 247 (C.A.), [http://canlii.ca/t/g99s1 1985 CanLII 3557] (NS CA){{perBCCA|Macdonald JA}}<br>
</ref> In these circumstances it should only be "exercised very sparingly and only in exceptional circumstances".<ref>
{{ibid1|Malenfant}}<br>
{{ibid1|Waugh}}<br>
</ref>

{{reflist|2}}

==Lost or Destroyed Evidence==
* [[Lost or Destroyed Evidence]]

==Police Trickery==
* [[Entrapment]]
* [[Admissions|Mr. Big Operations]]

==Remedies==
* [[Abuse of Process Remedies]]

==See Also==
* [[Abuse of Process by Crown Counsel]]