Stay of Proceedings for an Abuse of Process
In R.
v. O’Connor, [1995] 4 S.C.R. 411, a majority of the Supreme Court
of Canada had recognized that the common law abuse of process doctrine has
essentially been subsumed within Charter
breach analysis under section 7. Principles of fundamental justice both reflect
and accommodate the common law doctrine of abuse of process such that there is
no utility in maintaining two distinct analytic regimes: O’Connor, at paras.
70-71.
A stay of proceedings is the most drastic remedy a
criminal court can order (R. v. Regan, 2002 SCC 12 (CanLII), [2002] 1 S.C.R. 297,
at para. 53). It permanently halts the
prosecution of an accused. In doing so,
the truth-seeking function of the trial is frustrated and the public is
deprived of the opportunity to see justice done on the merits. In many cases, alleged victims of crime are
deprived of their day in court. In some
sense, an accused who is granted a stay under the residual category realizes a
windfall.
Nonetheless, there are rare occasions —the “clearest
of cases” — when a stay of proceedings for an abuse of process will be
warranted (R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para.
68). These cases generally fall into two
categories:
(1) where state conduct compromises the fairness of
an accused’s trial (the “main” category); and
(2) where state conduct creates no threat to trial
fairness but undermining the integrity of the judicial process (the “residual” category).
O’Connor,
at para. 73; R. v. Babos,
2014 SCC 16, [2014] 1 S.C.R. 309, at para. 30,31.
Reserved
for the clearest of cases
As the authorities repeatedly emphasize in connection
with both the main and residual categories of abuse of process, stays of
proceedings are rare, reserved for the “clearest of cases”. In the residual
category, stays are “exceptional” and “very rare”: Tobiass, at para. 91; Babos, at para. 44; See
also R. v. Conway,
[1989] 1 S.C.R. 1659, at p. 1667
Indeed, in the residual category, cases warranting a
stay of proceedings will be “exceptional” and “very rare” (Tobiass, at para.
91). But this is as it should be. It is only where the “affront to fair play
and decency is disproportionate to the societal interest in the effective
prosecution of criminal cases” that a stay of proceedings will be warranted (R. v. Conway, 1989 CanLII 66 (SCC), [1989]
1 S.C.R. 1659, at p. 1667); Babos,
at para. 44
A
Prospective remedy
A stay of proceedings is a prospective remedy. It
does not redress a wrong that has already been done. Rather, the stay aims to
prevent the perpetuation of a wrong that, if left alone, will continue to
trouble the parties and the community in the future. Just because the state has
treated a person shabbily in the past does not, without more, entitle
that person to a stay of proceedings. The evidence must also make it appear
that the state misconduct is likely to continue in the future, or that carrying
forward with a prosecution will offend society’s sense of justice.
R. v. Gowdy, 2016 ONCA 989 at
para 70; Babos, at para. 36; Canada (Minister of Citizenship and
Immigration) v. Tobiass, [1997] 3 S.C.R 391, at para. 91.
The
Legal Test for a Stay of Proceedings
The test used to determine whether a stay of proceedings
is warranted is the same for both main and residual categories of abuse of
process and consists of three requirements:
1. 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 its outcome;
The first requirement recognizes that there are
limits on the type of state conduct society will tolerate in the prosecution of
offences. Sometimes, state conduct will be so disturbing that having a trial,
even a fair trial, will leave the impression that the justice system condones
conduct that offends society’s sense of fair play and decency. The question
that requires answer in connection with the first requirement is whether
proceeding to trial in light of the state conduct would do further harm to the
integrity of the justice system: Babos,
at paras. 35, 38.
2. no
alternative remedy capable of addressing the prejudice;
For the second requirement, the question is whether
any other remedy short of a stay is capable of redressing the prejudice. Since
the prejudice with which we are concerned in the residual category is prejudice
to the integrity of the justice system, remedies must be directed towards that
harm. In this category, we do not furnish redress to an accused for a past
wrong done to him or her. Rather, we focus on whether an alternate remedy,
short of a stay, will adequately disassociate the justice system from the
impugned state conduct going forward: Babos,
at para. 39
3. where
uncertainty persists after requirements 1 and 2 have been considered, whether the interests in
favour of granting a stay prevail over society’s interests in having a final
decision on the merits.
The third requirement – a balancing of interests – is
of great significance in the residual category. Balancing is only required when
uncertainty remains after consideration of the first two requirements. What the
court is asked to decide is which of two options – staying proceedings or
holding a trial – better protects the integrity of the justice system. Relevant
factors include but are not limited to:
the nature and seriousness
of the impugned conduct;
the isolated or systemic
and ongoing nature of the conduct;
circumstances of the
accused;
the charges faced by the
accused; and
the interests of society
in having the charges determined on their merits: see Babos,
at para. 41.
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