Abuse of Process: Difference between revisions

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# conduct affecting the "fair trial" rights under s. 7, or
# conduct affecting the "fair trial" rights under s. 7, or
# conduct that falls into the "residual" protection of s. 7 of the "integrity of the judicial system".
# conduct that falls into the "residual" protection of s. 7 of the "integrity of the judicial system".
The residual category conduct that "contravenes fundamental notions of justice and thus undermines the integrity of the judicial process".<ref>
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; Residual Category
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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".<ref>
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".<ref>
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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.<ref>
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.<ref>

Revision as of 13:59, 1 February 2019

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.

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.[1]

The doctrine arises out of two protections within s. 7 of the Charter. It protects against two categories of abuses consisting of:[2]

  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".
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".[3]

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".[4]

The doctrine intends to "protect the integrity of the courts’ process and the administration of justice from disrepute".[5] It is also "intended to guard against state conduct that society find unacceptable, and which threatens the integrity of the justice system".[6]

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".[7]

The Crown conduct warranting a stay must be "egregious and seriously compromis[e] trial fairness and/or the integrity of the justice system".[8]

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".[9]

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.[10]

Burden of Proof

The burden is upon the accused to establish on a balance of probabilities that a stay is warranted.[11]

Criteria

For an application under either category, the applicant must establish:[12]

  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".[13]

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".[14]

  1. ↑ R v Schacher, 2003 ABCA 313 (CanLII), per Ritter JA, at para 10
    R v O'Connor, 1995 CanLII 51 (SCC), [1995] 4 SCR 411, at paras 70 to 71
  2. ↑ R v Nixon, 2011 SCC 34 (CanLII), per Charron J at paras 36 and 42
    R v Zarinchang, 2010 ONCA 286 (CanLII), per curiam
  3. ↑ 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), per Dubin JA
  4. ↑ R v Light, 1993 CanLII 1023 (BC CA), per Wood J
  5. ↑ R v Campbell, [1999] 1 SCR 565, 1999 CanLII 676 (SCC), per Binnie J
  6. ↑ R v Babos, 2014 SCC 16 (CanLII), per Moldaver J, at para 35
  7. ↑ Babos, supra, at para 32
  8. ↑ R v Anderson, 2014 SCC 41 (CanLII), per Moldaver J, at para 50
  9. ↑ Schacher, supra, at para 10
    Zarinchang, supra, at para 49
  10. ↑ R v Paryniuk, 2017 ONCA 87 (CanLII), per Watt JA, at para 64
    R v Babos, 2014 SCC 16 (CanLII), per Moldaver J, at para 31
    O'Connor, supra, at para 73
  11. ↑ R v ED, 1990 CanLII 6911 (ON CA), per Arbour JA
  12. ↑ R v Regan, [2002] 1 SCR 297, 2002 SCC 12 (CanLII), per LeBel J, at para 57
    Zarinchang, supra, at para 56
    Babos, supra, at para 32
  13. ↑ Keyowski, supra, at para 2
    Young, supra
  14. ↑ Regan, supra, at para 57
    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]

  1. ↑ R v Bero, 2000 CanLII 16956 (ON CA), (2000), 151 CCC (3d) 545 (Ont.C.A.), per Doherty JA, at para 18
  2. ↑ R v Henderson, 2004 CanLII 33343 (ON CA), per Feldman JA, at paras 29 to 41

Categories of Abuse of Process

Remedy

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