Abuse of Process by Crown Counsel

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

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General Principles

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

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.

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.

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."

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

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

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

Burden and Standard

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

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

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.

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

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

Procedure

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

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

Challenge to Prosecutorial Discretion

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

• Choice of which charges to pursue
• intervention in a private prosecution
• Crown Election
• Consent to Re-Elect
• Use of Direct Indictments
• Crown power to override of a judge and jury trial (s. 568)
• Choice of witnesses to call in trial
• Stay of proceedings

Malicious Prosecution

To establish malicious prosecution the plaintiff must prove the following:

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.

Other Types of Prosecutions

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. 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.

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.

Resiling from a Plea Deal

The Crown is generally expected to honour agreements made.

When Courts Can Review

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

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

Courts should be careful before they engage in any attempt to "second-guess" the Crown's motives behind their decision to repudiate an agreement. 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. Such cases are "extremely rare."

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.

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.

Purpose of Protecting Plea Deals

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

Basis to Repudiate Agreement

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

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.

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.

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

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. It would only be in "exceptional circumstances that the exercise of discretion of this type would be abusive.

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.

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. There mere possession of these documents creates a rebuttable presumption of prejudice.

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.

Judge Shopping

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

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.

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.

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. However, a stay during a trial is not necessarily always going to be abusive. In has been found to be permissible where there is no "oppression, prejudice, harassment, or manifest hardship upon the accused."

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.

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."

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."

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

See Also

• Abuse of Process by Law Enforcement