Abuse of Process by Law Enforcement: Difference between revisions
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{{seealso|Abuse of Process|Role of Law Enforcement}} | {{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> | 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> | ||
{{ | {{CanLIIRx|Ahmed|flj30|2011 ONSC 2551 (CanLII)}}{{perONSC|Garton J}}: obstruction charge stayed<br> | ||
{{ | {{CanLIIRP|Maskell|fm5zv|2011 ABPC 176 (CanLII)|512 AR 372}}{{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> | This type of grounds to stay proceedings falls into the "residual category" of the abuse of process doctrine.<ref> | ||
{{ibid1|Ahmed}}{{AtL|flj30|51}}<br> | {{ibid1|Ahmed}}{{AtL|flj30|51}}<br> | ||
| Line 11: | Line 11: | ||
; Trickery | ; Trickery | ||
The police are entitled to use "lawful stratagems, even amounting to reasonable trickery, to gather evidence".<ref> | The police are entitled to use "lawful stratagems, even amounting to reasonable trickery, to gather evidence".<ref> | ||
{{ | {{CanLIIRP|Grandinetti|4pvr|2003 ABCA 307 (CanLII)|178 CCC (3d) 449}}{{perABCA|McFadyen J}}{{atsL|4pvr|36| to 42}}</ref> | ||
; Realistic Standard | ; Realistic Standard | ||
| Line 33: | Line 33: | ||
Courts will stay charges where police powers have been abused in light of factors including:<ref> | Courts will stay charges where police powers have been abused in light of factors including:<ref> | ||
{{ | {{CanLIIRP|Knight|2ckx6|2010 ONCJ 400 (CanLII)|79 CR (6th) 39}}{{perONCJ|Clark J}}{{atL|2ckx6|26}}<br> | ||
{{CanLIIR-N|Cheddie|, [2006] OJ No 1585 (SCJ)}}<br> | {{CanLIIR-N|Cheddie|, [2006] OJ No 1585 (SCJ)}}<br> | ||
{{CanLIIRP| | {{CanLIIRP|O'Connor|1frdh|1995 CanLII 51 (SCC)|[1995] 4 SCR 411}}{{Plurality}}<br> | ||
</ref> | </ref> | ||
# the need to dispel any notion that the police are above the law in performing their duties; | # the need to dispel any notion that the police are above the law in performing their duties; | ||
| Line 44: | Line 44: | ||
The court may consider the officer's involvement in a prior published case where there were negative findings made against the officer.<ref> | The court may consider the officer's involvement in a prior published case where there were negative findings made against the officer.<ref> | ||
{{ | {{CanLIIRP|Harflett|gp6lb|2016 ONCA 248 (CanLII)|336 CCC (3d) 102}}{{perONCA|Lauwers JA}} | ||
</ref> | </ref> | ||
| Line 61: | Line 61: | ||
{{CanLIIR-N|Kemper|, [1989] OJ No 3310}}<br> | {{CanLIIR-N|Kemper|, [1989] OJ No 3310}}<br> | ||
{{CanLIIR-N|Gladue| (1993), 23 WCB (2d) 342, [1993] AJ No 1045}} - female accused face pushed against wall <br> | {{CanLIIR-N|Gladue| (1993), 23 WCB (2d) 342, [1993] AJ No 1045}} - female accused face pushed against wall <br> | ||
cf. {{ | cf. {{CanLIIRP|Anderson|23nlh|2009 MBQB 121 (CanLII)|241 Man R (2d) 15}}{{perMBQB|Abra J}} - stay denied | ||
</ref> | </ref> | ||
; Burden | ; Burden | ||
The accused has the onus to show that he was subject of excessive force.<ref> | The accused has the onus to show that he was subject of excessive force.<ref> | ||
{{ | {{CanLIIRP|Davis|fvs3b|2013 ABCA 15 (CanLII)|295 CCC (3d) 508}}{{TheCourtABCA}} (2:1) | ||
</ref> | </ref> | ||
| Line 73: | Line 73: | ||
==Invasions of Privacy== | ==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> | 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> | ||
{{ | {{CanLIIRP|Mok|frb0b|2012 ONCJ 291 (CanLII)|258 CRR (2d) 232}}{{perONCJ|West J}}</ref> | ||
{{reflist|2}} | {{reflist|2}} | ||
| Line 79: | Line 79: | ||
==Dishonesty== | ==Dishonesty== | ||
It has applied where police had manufactured false evidence against the accused.<ref> | It has applied where police had manufactured false evidence against the accused.<ref> | ||
{{ | {{CanLIIRx|Spagnoli and Shore|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> | Police cannot report that a confidential informant is anonymous when they know the identity of the person.<ref> | ||
| Line 94: | Line 94: | ||
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> | 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. {{ | e.g. {{CanLIIRP|Simpson|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. | 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> | <ref> | ||
{{ | {{CanLIIRP|Salisbury|fl6mt|2011 SKQB 153 (CanLII)|372 Sask R 242}}{{perSKQB|Gerein J}}{{atL|fl6mt|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}} | {{reflist|2}} | ||
==="Gating"=== | ==="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> | "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> | ||
{{ | {{CanLIIRx|AWH|gvsrn|2016 NSPC 65 (CanLII)}}{{perNSPC|Derrick J}}{{atsL|gvsrn|33| to 34}}<br> | ||
{{CanLIIRP|Parisien|gcz3m|1971 CanLII 1171 (BC CA)|[1971] BCJ 649 (BCCA)}}{{perBCCA|Branca JA}} - delayed execution of arrest warrant<br> | {{CanLIIRP|Parisien|gcz3m|1971 CanLII 1171 (BC CA)|[1971] BCJ 649 (BCCA)}}{{perBCCA|Branca JA}} - delayed execution of arrest warrant<br> | ||
{{CanLIIR-N|Duncan|, [1999] OJ No 1977 (ONCJ)}}{{at-|27}} - delay of investigation and charge because of release schedule <br> | {{CanLIIR-N|Duncan|, [1999] OJ No 1977 (ONCJ)}}{{at-|27}} - delay of investigation and charge because of release schedule <br> | ||
| Line 120: | Line 120: | ||
{{supra1|AWH}}{{atL|gvsrn|35}}<br> | {{supra1|AWH}}{{atL|gvsrn|35}}<br> | ||
{{supra1|Duncan}}<br> | {{supra1|Duncan}}<br> | ||
{{ | {{CanLIIRP|Lima|gp0k0|2016 ONCJ 167 (CanLII)|OJ No 1580}}{{perONCJ|George J}}<br> | ||
</ref> | </ref> | ||
| Line 131: | Line 131: | ||
==Delayed Charging== | ==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> | 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> | ||
{{ | {{CanLIIRP|WKL|1fsl0|1991 CanLII 54 (SCC)|[1991] 1 SCR 1091}}{{perSCC|Stevenson J}} at page 5<br> | ||
</ref> | </ref> | ||
| Line 137: | Line 137: | ||
{{CanLIIRP|Box|1nr5m|1994 CanLII 5026 (SK QB)|[1994] S.J. No 17, 118 Sask R 241 (Q.B.)}}{{perSKQB|Gerein J}} | {{CanLIIRP|Box|1nr5m|1994 CanLII 5026 (SK QB)|[1994] S.J. No 17, 118 Sask R 241 (Q.B.)}}{{perSKQB|Gerein J}} | ||
<br> | <br> | ||
see also {{ | see also {{CanLIIRP|Keyoski|1ftg7|1988 CanLII 74 (SCC)|[1988] 1 SCR 657}}{{perSCC|Wilson J}}<br> | ||
</ref> | </ref> | ||
| Line 152: | Line 152: | ||
; Charging to Collect Civil Remedy | ; Charging to Collect 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> | 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> | ||
{{ | {{CanLIIRP|Malenfant|fvtsg|1992 CanLII 7162 (NB QB)|328 APR 305}}{{perNBQB|Landry J}}<br> | ||
{{CanLIIRP|Leroux|gw8t3|1928 CanLII 455 (ON CA)|50 CCC 52 | {{CanLIIRP|Leroux|gw8t3|1928 CanLII 455 (ON CA)|50 CCC 52}}{{perONCA|Grant JA}}<br> | ||
{{CanLIIRP|Bell|gbvxz|1929 CanLII 280 (BC CA)|51 CCC 388 | {{CanLIIRP|Bell|gbvxz|1929 CanLII 280 (BC CA)|51 CCC 388}}{{perBCCA|Macdonald CJ}}<br> | ||
{{CanLIIRP|Waugh|g99s1|1985 CanLII 3557 (NS CA)|21 CCC (3d) 80 | {{CanLIIRP|Waugh|g99s1|1985 CanLII 3557 (NS CA)|21 CCC (3d) 80}}{{perBCCA|Macdonald JA}}<br> | ||
</ref> | </ref> | ||
In these circumstances it should only be "exercised very sparingly and only in exceptional circumstances".<ref> | In these circumstances it should only be "exercised very sparingly and only in exceptional circumstances".<ref> | ||
| Line 168: | Line 168: | ||
; Payment of Agent Conditional on Results | ; Payment of Agent Conditional on Results | ||
It is not improper to make full payment of a police agent conditional on collecting evidence sufficient to lay charges.<ref> | It is not improper to make full payment of a police agent conditional on collecting evidence sufficient to lay charges.<ref> | ||
{{ | {{CanLIIRP|Dikah|231tc|1994 CanLII 8722 (ON CA)|89 CCC (3d) 321}}{{perONCA|Labrosse JA}} (2:1){{atL|231tc|29}} | ||
</ref> | </ref> | ||
It is however improper where the condition is one of requiring conviction then it would be inappropriate as it may induce dishonesty.<ref> | It is however improper where the condition is one of requiring conviction then it would be inappropriate as it may induce dishonesty.<ref> | ||
{{ | {{CanLIIRP|Xenos|1pggh|1991 CanLII 3455 (QC CA)|70 CCC (3d) 362}} | ||
</ref> | </ref> | ||
Revision as of 08:03, 24 June 2021
- < Procedure and Practice
- < Pre-Trial and Trial Matters
- < Abuse of Process
General Principles
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.[1] This type of grounds to stay proceedings falls into the "residual category" of the abuse of process doctrine.[2]
- Trickery
The police are entitled to use "lawful stratagems, even amounting to reasonable trickery, to gather evidence".[3]
- Realistic Standard
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".[4]
- Factors to Consider
Abuse or illegality by police does not by itself give rise to an abuse of process, but rather is a factor in whether to grant a stay.[5]
Evaluating the lawfulness of police conduct should be considered in light of:[6]
- 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:[7]
- 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.
The court may consider the officer's involvement in a prior published case where there were negative findings made against the officer.[8]
- ↑
R v Ahmed, 2011 ONSC 2551 (CanLII), per Garton J: obstruction charge stayed
R v Maskell, 2011 ABPC 176 (CanLII), 512 AR 372, per Groves J: impaired charges stayed - ↑
Ahmed, ibid., at para 51
- ↑ R v Grandinetti, 2003 ABCA 307 (CanLII), 178 CCC (3d) 449, per McFadyen J, at paras 36 to 42
- ↑ R v Dunn, [1992] OJ No 685(*no CanLII links)
- ↑ R v Campbell (Shirose), 1999 CanLII 676 (SCC), [1999] 1 SCR 565, per Binnie J
- ↑
R v Simpson, 1993 CanLII 3379 (ON CA), [1993] OJ No 308, per Doherty J, at para 55
- ↑
R v Knight, 2010 ONCJ 400 (CanLII), 79 CR (6th) 39, per Clark J, at para 26
R v Cheddie, [2006] OJ No 1585 (SCJ)(*no CanLII links)
R v O'Connor, 1995 CanLII 51 (SCC), [1995] 4 SCR 411
- ↑ R v Harflett, 2016 ONCA 248 (CanLII), 336 CCC (3d) 102, per Lauwers JA
Use of Force
Charges have been stayed on the basis of police using tasers or pepper spray where they were not warranted.[1] As well as where excessive force has been used while arresting the accused.[2]
- Burden
The accused has the onus to show that he was subject of excessive force.[3]
- ↑
See R v Fryingpan, 2005 ABPC 28 (CanLII), [2005] AJ No 102, per Easton J - tasered during arrest
R v JW, 2006 ABPC 216 (CanLII), [2006] AJ No 1097, per Kvill J
R v Merrick, 2007 CarswellOnt 3855 (O.C.J.)(*no CanLII links) - stayed for use of taser during arrest
R v Wiscombe, 2003 BCPC 418 (CanLII), [2003] BCJ No 2858, per Walker J
R v Spannier, 1996 CanLII 978 (BC SC), [1996] BCJ No 2525 (BCSC), per Edwards J - pepper spray while being put in detention cells
- ↑
R v Cheddie, [2006] OJ No 1585(*no CanLII links)
- officer struck and kicked accused during arrest and search
R v Kemper, [1989] OJ No 3310(*no CanLII links)
R v Gladue (1993), 23 WCB (2d) 342, [1993] AJ No 1045(*no CanLII links) - female accused face pushed against wall
cf. R v Anderson, 2009 MBQB 121 (CanLII), 241 Man R (2d) 15, per Abra J - stay denied - ↑ R v Davis, 2013 ABCA 15 (CanLII), 295 CCC (3d) 508, per curiam (2:1)
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.[1]
- ↑ R v Mok, 2012 ONCJ 291 (CanLII), 258 CRR (2d) 232, per West J
Dishonesty
It has applied where police had manufactured false evidence against the accused.[1]
Police cannot report that a confidential informant is anonymous when they know the identity of the person.[2] This type of lie can result in an abuse of process.[3]
- ↑ R v Spagnoli and Shore, 2011 ONSC 4843 (CanLII), per Hambly J -- falsified anonymous source information
- ↑
Spagnoli, ibid.
- ↑
Spagnoli, ibid.
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.[1]
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. [2]
- ↑ e.g. R v Simpson, 1995 CanLII 120 (SCC), [1995] 1 SCR 449, per Lamer CJ affirming 1994 CanLII 4528 (NL CA), per Goodridge CJ
- ↑ R v Salisbury, 2011 SKQB 153 (CanLII), 372 Sask R 242, per 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. ")
"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.[1]
The basis for "gating" is the "perceived danger to prisoner or public if the prisoner were released".[2]
The Charter does not permit investigators to charge a person at "their convenience".[3]
A stay of proceeding may be ordered where the delay in charging where the delay was due to negligence or improper motivation.[4]
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.[5]
- ↑
R v AWH, 2016 NSPC 65 (CanLII), per Derrick J, at paras 33 to 34
R v Parisien, 1971 CanLII 1171 (BC CA), [1971] BCJ 649 (BCCA), per Branca JA - delayed execution of arrest warrant
R v Duncan, [1999] OJ No 1977 (ONCJ)(*no CanLII links) , at para 27 - delay of investigation and charge because of release schedule
- ↑
R v Moore, 1983 CanLII 1677 (ON CA), [1983] OJ 228 (HCJ), per Dubin JA, at para 2
AWH, supra, at para 33
- ↑
R v Cardinal, 1985 ABCA 157 (CanLII), [1985] AJ 1099, per Kerans JA, at para 8
- ↑
AWH, supra, at para 35
Duncan, supra
R v Lima, 2016 ONCJ 167 (CanLII), OJ No 1580, per George J
- ↑
Duncan, supra, at paras 27 to 30
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.".[1]
When concerning the police decision to lay charges against the accused, it is not necessary that malice be proven to be abusive.[2]
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."[3]
- ↑
R v WKL, 1991 CanLII 54 (SCC), [1991] 1 SCR 1091, per Stevenson J at page 5
- ↑
R v Box, 1994 CanLII 5026 (SK QB), [1994] S.J. No 17, 118 Sask R 241 (Q.B.), per Gerein J
see also R v Keyoski, 1988 CanLII 74 (SCC), [1988] 1 SCR 657, per Wilson J
- ↑ Box, ibid.
Entrapment
Improper Use of Charges
- Charging to Collect 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.[1] In these circumstances it should only be "exercised very sparingly and only in exceptional circumstances".[2]
As long as there is a prima facie case for a crime, then there can be concurrent civil and criminal matters.[3]
- Payment of Agent Conditional on Results
It is not improper to make full payment of a police agent conditional on collecting evidence sufficient to lay charges.[4] It is however improper where the condition is one of requiring conviction then it would be inappropriate as it may induce dishonesty.[5]
- ↑
R v Malenfant, 1992 CanLII 7162 (NB QB), 328 APR 305, per Landry J
R v Leroux, 1928 CanLII 455 (ON CA), 50 CCC 52, per Grant JA
R v Bell, 1929 CanLII 280 (BC CA), 51 CCC 388, per Macdonald CJ
R v Waugh, 1985 CanLII 3557 (NS CA), 21 CCC (3d) 80, per Macdonald JA
- ↑
Malenfant, ibid.
Waugh, ibid.
- ↑ Waugh, supra
- ↑ R v Dikah, 1994 CanLII 8722 (ON CA), 89 CCC (3d) 321, per Labrosse JA (2:1), at para 29
- ↑ R v Xenos, 1991 CanLII 3455 (QC CA), 70 CCC (3d) 362