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Abuse of Process

From Criminal Law Notebook
This page was last substantively updated or reviewed July 2021. (Rev. # 95413)

General Principles

See also: Principles of Fundamental Justice

The abuse of process doctrine provides courts with the authority to order that a proceeding be stayed on the basis that they are unfair or otherwise sufficiently undermine the integrity of the judicial system.[1]

The defence has as right to allege abuse of process and prosecutorial misconduct only where "those allegations have some foundation in the record, only where there is some possibility that the allegations will lead to a remedy and only at the appropriate time in the proceedings."[2]

Charter vs Common Law

The doctrine of abuse of process exists both at common law and under s. 7 of the Charter. However, for most practical purposes the doctrine is entirely encompassed by the Charter.[3]

Categories of Abuse Doctrine

The doctrine arises out of two protections within s. 7 of the Charter. It protects against two categories of abuses consisting of:[4]

  1. conduct affecting the "fair trial" rights under s. 7, or
  2. conduct that falls into the "residual" protection of s. 7 of the "integrity of the judicial system".

Where the alleged conduct is not sufficient to justify a stay when considered in the context of either of the two categories, the judge must still consider the existence of a breach by balancing the interests in favour of a stay (e.g. denunciation of conduct or preserving the integrity of the system) against the "interest that society has in having a final decision on the merits."[5]

History

Early case law stated that abuse of process would be engaged where the process "would violate those fundamental principles of justice which underlie the community's sense of fair play and decency", or where the proceedings are "oppressive or vexatious."[6]

Purpose

The purpose of the doctrine is "to preserve the integrity of the process through which justice is administered in the community, not to provide a remedy for the breach of individual rights."[7]

The doctrine intends to "protect the integrity of the courts’ process and the administration of justice from disrepute."[8] It is also "intended to guard against state conduct that society find unacceptable, and which threatens the integrity of the justice system."[9]

Remedy

Where an abuse is found the judge has "wide discretion to issue a remedy – including the exclusion of evidence or a stay of proceedings – we're doing so is necessary to preserve the integrity of the justice system for the fairness of trial."[10]

The Crown conduct warranting a stay must be "egregious and seriously compromis[e] trial fairness and/or the integrity of the justice system."[11]

  1. ↑ R v Regan, 2002 SCC 12 (CanLII), [2002] 1 SCR 297, per LeBel J
  2. ↑ R v Felderhof, 2003 CanLII 37346 (ON CA), per Rosenberg JA, at para 88
  3. ↑ R v Schacher, 2003 ABCA 313 (CanLII), 179 CCC (3d) 561, per Ritter JA, at para 10
    R v O'Connor, 1995 CanLII 51 (SCC), [1995] 4 SCR 411, at paras 70 to 71
  4. ↑ R v Nixon, 2011 SCC 34 (CanLII), [2011] 2 SCR 566, per Charron J, at paras 36 and 42
    R v Zarinchang, 2010 ONCA 286 (CanLII), 254 CCC (3d) 133, per curiam
    Regan, supra
    R v Babos, 2014 SCC 16 (CanLII), [2014] 1 SCR 309, per Moldaver J, at para 31
    R v Howley, 2021 ONCA 386 (CanLII), per curiam, at para 51
  5. ↑ Howley, ibid., at para 51
    Babos, supra at para 32
  6. ↑ R v Keyowski, 1988 CanLII 74 (SCC), [1988] 1 SCR 657, per Wilson J, at para 2
    R v Young, 1984 CanLII 2145 (ON CA), 13 CCC (3d) 1, per Dubin JA
  7. ↑ R v Light, 1993 CanLII 1023 (BC CA), 78 CCC (3d) 221, per Wood J
  8. ↑ R v Campbell, 1999 CanLII 676 (SCC), [1999] 1 SCR 565, per Binnie J
  9. ↑ Babos, supra, at para 35
  10. ↑ Babos, supra, at para 32
  11. ↑ R v Anderson, 2014 SCC 41 (CanLII), [2014] 2 SCR 167, per Moldaver J, at para 50

Requirements of Stay

Burden of Proof

The burden is upon the accused to establish on a balance of probabilities that a stay is warranted.[1]

Criteria (Babos test)

For an application under either category, the applicant must establish:[2]

  1. There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome”;
  2. There must be no alternative remedy capable of redressing the prejudice; and
  3. Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits”(, ibid., at para 57).
Uncertain Cases

Proceedings should be stayed for abuse of process in only the "clearest of cases."[3]

There the circumstances are "close to the line," and the judge is "uncertain" about whether a stay is warranted, the judge may rely upon the "the balancing of the interests in granting a stay against society's interest in having a trial on the merits."[4]

  1. ↑ R v ED, 1990 CanLII 6911 (ON CA), 57 CCC (3d) 151, per Arbour JA
  2. ↑ Regan, supra, at para 57
    Zarinchang, supra, at para 56
    R v Babos, 2014 SCC 16 (CanLII), [2014] 1 SCR 309, per Moldaver J, at para 32
  3. ↑ Keyowski, supra, at para 2
    Young, supra Babos, supra
  4. ↑ Regan, supra, at para 57
    Zarinchang, supra, at para 56

Babos Elements – Prejudice to Accused or Integrity of System

Number of Trials

There can be prejudice arising from the number of trials, however, that is balanced against the "societal interest" of the case.[1]

Embarrassment of Charges

The humiliation that flows from the proper laying of charges is not an abuse of process and not in-itself prejudicial.[2]

  1. ↑ R v Pan, 1999 CanLII 3720 (ON CA), 134 CCC (3d) 1, per McMurtry CJ
  2. ↑ R v Regan, 2002 SCC 12 (CanLII), [2002] 1 SCR 297, per Lebel J, at para 107 ("[T]he embarrassment to the appellant of the premature police announcement was overtaken by the charges which would have been laid in any event. Therefore there was no continuing prejudice from this misconduct. One must also remember that the humiliation flowing from properly laid charges, while unpleasant, is not an abuse of process. (para107) ")

Babos Elements – No Reasonable Alternative

Babos Elements – Balancing Factors

The third element requiring a balancing of factors should only apply if the first two steps do not determine the issues conclusively.[1]

  1. ↑ R v Babos, 2014 SCC 16 (CanLII), [2014] 1 SCR 309, per Moldaver J, at para 31

Residual Category

This second residual category "addresses the panoply of diverse circumstances in which a prosecution is so tainted that it attains a threshold of unfairness or vexatiousness that commands judicial intervention because the conduct so contravenes fundamental notions of justice that it undermines the integrity of the judicial process."[1]

Where the alleged abuse "poses no threat to trial fairness, but risks undermining the integrity of the judicial process" then the abuse must be categorized under the "residual" branch of the doctrine.[2]

The stay under the residual category should only be granted in the "rare" cases where "the abuse is likely to continue or be carried forward."[3]

Only in the rare or exceptional cases will it be that the past misconduct alone could justify a stay such that the "mere fact of going forward in light of it will be offensive."[4]

Where it is uncertain whether the abuse is sufficient for a stay under the residual category, the court may consider factors including:[5]

  1. the particulars of the case,
  2. the circumstances of the accused,
  3. the nature of the charges he or she faces,
  4. the interest of the victim and
  5. the broader interest of the community in having the particular charges disposed of on the merits.
  1. ↑ R v Schacher, 2003 ABCA 313 (CanLII), 179 CCC (3d) 561, per Ritter JA, at para 10
    Zarinchang, supra, at para 49
  2. ↑ R v Paryniuk, 2017 ONCA 87 (CanLII), 134 OR (3d) 321, per Watt JA, at para 64
    R v Babos, 2014 SCC 16 (CanLII), [2014] 1 SCR 309, per Moldaver J, at para 31
    R v Regan, 2002 SCC 12 (CanLII), [2002] 1 SCR 297, per LeBel J
    O'Connor, supra, at para 73
  3. ↑ Regan, supra, at para 55
  4. ↑ Regan, ibid., at para 55
  5. ↑ Zarinchang, supra, at para 56

Procedure

Generally, a judge should hear all the trial evidence before making a ruling in order to understand the extent of the prejudice.[1]

If the abusive state conduct occurs during trial, the application must be brought to the judge before the jury renders a verdict.[2]

Appropriate Judge

A judge hearing an extradition may stay proceedings for abuse of process.[3]

  1. ↑ R v Bero, 2000 CanLII 16956 (ON CA), 151 CCC (3d) 545, per Doherty JA, at para 18
  2. ↑ R v Henderson, 2004 CanLII 33343 (ON CA), 189 CCC (3d) 447, per Feldman JA, at paras 29 to 41
  3. ↑ United States of America v Khadr, 2011 ONCA 358 (CanLII), 273 CCC (3d) 55, per Sharpe JA

Entities Engaged in Abuse of Process

Remedy

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