View source for Abuse of Process Remedies

{{LevelZero}}{{HeaderAbuse}}
==General Principles==
The available remedies to an applicant who is able to establish an abuse of process include a [[Stay of Proceedings|stay of proceedings]] and [[Costs|costs]].

==Stay of Proceedings==
{{seealso|Stay of Proceedings}}
A court has a "residual discretion" to order a stay of proceedings where there is a finding of abuse of process.<ref>
{{CanLIIRP|Jewitt|1ftxr|1985 CanLII 47 (SCC)|[1985] 2 SCR 128}}{{perSCC|Dickson CJ}}<br>
{{CanLIIRP|O’Connor|1frdh|1995 CanLII 51 (SCC)|[1995] 4 SCR 411}}{{Plurality}}{{AtL|1frdh|73}}
</ref>
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."<ref>
{{supra1|Jewitt}}<br>
see also {{CanLIIRP|Conway|1ft4d|1989 CanLII 66 (SCC)|[1989] 1 SCR 1659}}{{perSCC|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.")
</ref>

; Jurisdiction to Stay Proceedings
A provincial court judge has the jurisdiction to make an order remedying any abuse of process.<ref>
{{supra1|Jewett}}<br>
{{CanLIIR|Wood|1z8z6|2007 NSPC 39 (CanLII)}}{{perNSPC|Tufts J}}
</ref>

Only superior courts have jurisdiction to stay proceedings on a non-Charter based abuse of process motion.<ref>
{{CanLIIRP|Maxner|gd95m|1981 CanLII 3285 (NSCA)| (1981), 22 CR (3d) 193 (NSCA)}}{{perNSCA|Jones JA}}<br> 
{{CanLIIRPC|Re R. and Lizee|g9s02|1978 CanLII 2463 (BC SC)|42 CCC (2d) 173, (BCSC)}}{{perBCSC|Rae J}}<br> 
{{CanLIIRP|Lebrun|gbkt1|1978 CanLII 2429 (BCCA)|45 CCC (2d) 300, 7 CR (3d) 93, [1979] 1 WWR 764 (BCCA)}}{{perBCCA-H|Bull JA}}<br>
</ref>

A preliminary inquiry judge may not stay proceedings on grounds of abuse of process.<ref>
{{CanLIIR|Stupp, Winthrope and Manus|g1f73|1982 CanLII 1897 (ONSC)}}{{perONSC|Craig J}}
</ref>

A provincial court judge cannot stay a proceeding for an abuse of process before the defence election has been made.<ref>
{{CanLIIR|Zaluski|g7q31|1983 CanLII 2384 (SKQB)}}{{perSKQB|Matheson}}
</ref>

; 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".<ref>
{{supra1|O'Connor}}<br>
{{CanLIIRP|Regan|51v8|2002 SCC 12 (CanLII)|[2002] 1 SCR 297}}{{perSCC|LeBel J}}{{atL|51v8|53}}<br>
{{CanLIIRPC|R v Taillefer; R v Duguay|1g992|2003 SCC 70 (CanLII)}}{{perSCC|LeBel J}}{{atL|1g992|117}} (should be ordered "only in exceptional circumstances")<br>
{{CanLIIRP|Keyowski|1ftg7|1988 CanLII 74 (SCC)|[1988] 1 SCR 657}}{{perSCC|Wilson J}}<br>
</ref>

; Requirements Before a Stay Can be Ordered
Regardless of the basis for abuse of process, a stay can only be entered where:<ref>
{{supra1|Regan}}
</ref>
# 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
# 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".<ref>
{{CanLIIRP|Leduc|1frzb|1993 CanLII 80 (SCC)|[1993] 3 SCR 641}}{{perSCC|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.")
</ref>

The use of a stay of proceedings is a prospective, not a retrospective remedy.<ref>
{{supra1|Regan}}{{atL|51v8|54}}
</ref>

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".<ref>
{{CanLIIR|La|1fr18|1997 CanLII 309 (SCC)|[1997] 2 SCR 680}}{{perSCC|Sopinka J}}{{AtL|1fr18|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.")
</reF>

; 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".<ref>
{{supra1|Regan}}{{atL|51v8|57}}
</ref>
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.<ref>
{{supra1|Regan}}{{atL|51v8|57}}
</ref>

; 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".<ref>
{{CanLIIR|Cloutier|fm39m|2011 ONCA 484 (CanLII)}}{{perONCA|Weiler JA}}{{atL|fm39m|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")<br>
</ref>

{{reflist|2}}

===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.<Ref>
{{CanLIIR|La|1fr18|1997 CanLII 309 (SCC)|[1997] 2 SCR 680}}{{perSCC|Sopinka J}}{{AtL|1fr18|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.")<br>
{{CanLIIR-N|Andrew| (1992), 60 OAC 324}}{{atp|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”)
</ref>

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.<Ref>
{{CanLIIR|Bero|1fbg9|2000 CanLII 16956 (ONCA)}}{{perONCA|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")
</ref>

It is at the discretion of the court to rule on the stay remedy immediately, or upon hearing some or all of the evidence.<ref>
{{supra1|La}}{{atL|1fr18|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")
</ref>

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.<ref>
{{supra1|La}}{{atL|1fr18|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")<br>
</ref>

; Jury Trial
The judge has no jurisdiction to entertain a stay application after the jury has rendered a verdict.<ref>
{{CanLIIR|Grant (I.M.)|226wc|2009 MBCA 9 (CanLII)}}{{perMBCA|Chartier JA}}
</ref>Any request for a stay must occur before the jury begins deliberation.<Ref>
{{ibid1|Grant}}{{atL|226wc|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.")
</ref>
At a minimum, it must be brought before the jury returns with a verdict.<ref>
{{CanLIIR|Henderson|1hzz6|2004 CanLII 33343 (ONCA)}}{{perONCA|Feldman JA}}("the motion for a remedy must be brought before the jury’s verdict is registered")
</ref>

{{reflist|2}}

==Costs==
{{seealso|Costs}}
Costs does not automatically follow a finding of an abuse of process. It is only in the "rare and exceptional" cases.<ref>
{{CanLIIR|Cole|4v8q|2000 NSCA 42 (CanLII)}}{{perNSCA|Bateman JA}}{{AtsL|4v8q|18|}}, {{atsL-np|4v8q|50| to 51}}<br>
</ref>

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".<ref>
{{ibid1|Cole}}{{atL|4v8q|52}}</ref>
The consequences must amount to "an indisputable and clearly measurable infringement or denial  of a right".<ref>
{{ibid1|Cole}}{{atL|4v8q|52}}</ref>

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".<ref>
{{ibid1|Cole}}{{atL|4v8q|52}}</ref>

{{reflist|2}}