What Could Happen If a Government Agent Uses Legal Proceedings In an Oppressive Manner?

Prosecutors, Among Others, Are Required to Refrain From Misuse of Legal Proceedings and Avoid Engaging In Oppressive or Vexatious Conduct Including Use of the Proceeding For the Purpose of Inflicting Hardship or Other Mischief. Where a Legal Proceeding Is Misused a Stay of Proceeding May Be Ordered.

A Helpful Guide For How to Determine When a Legal Case May Be an Abuse of Process Deserving a Stay of Proceedings

Prosecutor engaging in misconduct as an abuse of process. It does happen that a party to a proceeding, such as a person accused of a crime or other type of wrongdoing or even a defendant within civil litigation, is improperly abused by the legal proceeding whereas the processes of the proceeding are oppressively and vexatiously used as a tool to inflict harm upon the person rather than for the legitimate purpose of the proceeding.

The Law
What Type of Conduct May Be An Abuse of Process?

The rule of law requires that legal proceedings be used for the purpose in which the proceeding is designed.  For example, the proceedings relating to a criminal charge are intended as a process to determine whether a person is guilty of the crime as alleged and to apply an appropriate punishment.  However, if the proceeding itself is used in an improper manner, for the purpose of inflicting hardship or some other purpose that is inconsistent with the genuine purpose of the process, such conduct may constitute as an abuse of process.  The Supreme Court defined abuse of process well within the case of R. v. Scott, 1990 CanLII 27 (SCC), [1990] 3 S.C.R. 979 wherein it was said:

In summary, abuse of process may be established where: (1) the proceedings are oppressive or vexatious; and, (2) violate the fundamental principles of justice underlying the community's sense of fair play and decency.  The concepts of oppressiveness and vexatiousness underline the interest of the accused in a fair trial.  But the doctrine evokes as well the public interest in a fair and just trial process and the proper administration of justice.  I add that I would read these criteria cumulatively.  While Wilson J. in R. v. Keyowski, 1988 CanLII 74 (SCC), [1988] 1 S.C.R. 657, at pp. 658-59, used the conjunction "or" in relation to the two conditions, both concepts seem to me to be integral to the jurisprudence surrounding the remedy of a stay of proceedings and the considerations discussed in R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128, and R. v. Conway, supra.  It is not every example of unfairness or vexatiousness in a trial which gives rise to concerns of abuse of process.  Abuse of process connotes unfairness and vexatiousness of such a degree that it contravenes our fundamental notions of justice and thus undermines the integrity of the judicial process.  To borrow the language of Conway, the affront to fair play and decency must be disproportionate to the societal interest in prosecution of criminal cases.

Furthermore, abuse of process for prosecutorial misconduct may arise when the misconduct affects the fairness of the proceeding or undermines the integrity of the justice system.  Such was recently stated within the case of R. v. Fuller, 2020 ONSC 180 where it was stated:

[8]  Prosecutorial discretion is not entirely immune from review.  The court is empowered to intervene when the conduct – or misconduct – rises to the level of an abuse of process.  The jurisdiction of the court to review state conduct for abuse of process was long recognized at common law, and is now subsumed by s. 7 of the Charter.  There are two categories of abuse of process: 1) prosecutorial conduct that affects the fairness of the trial; and 2) prosecutorial conduct that “contravenes fundamental notions of justice and thus undermines the integrity of the judicial process”.  See R. v. Nixon, 2011 SCC 34, at para. 36.  The first category – often referred to as the “main” category – is at play in this case.

Common Remedy
What Happens If a Legal Process Is Found Abusive?

Courts and tribunals have a duty to ensure that the processes within the matters the courts and tribunals adjudicate are used for the legitimate purpose of the process itself and to ensure that prosecutorial conduct remains consistent with the duty to pursue a legal proceeding in a manner that the public would view as fair and decent consistent with the respectful decorum of the justice system and thus without oppressive conduct or illicit intentions.  Where a court or tribunal finds that misconduct is likely to bring the administration of justice into disrepute, meaning lower public respect for the justice system, a court or tribunal may Order a Stay of Proceeding which brings a cessation or end to the legal proceeding.  This authority to Stay a proceeding was stated by the Supreme Court within the case of R. v. Conway, 1989 CanLII 66 (SCC), [1989] 1 S.C.R. 1659, which says:

A trial judge has discretion to stay proceedings in order to remedy an abuse of the court's process.  This Court affirmed the discretion "where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency and to prevent the abuse of a court's process through oppressive or vexatious proceedings" (R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128, at pp. 136-37, borrowing from R. v. Young (1984), 1984 CanLII 2145 (ON CA), 40 C.R. (3d) 289 (Ont. C.A.))  The judge's power may be exercised only in the "clearest of cases" (Jewitt, supra, at p. 137).

Subsequently, the Supreme Court expanded upon the discretion of the courts to remedy abuse of process by explaining with the case of R. v. Nixon, 2011 SCC 34 (CanLII), [2011] 2 S.C.R. 566 that while a Stay of Proceeding per the common law may be granted, and should be when the abuse of process meets the "clearest of cases" burden, lesser remedies may also be warranted such as exclusion of evidence, among other things, when it is shown beyond a balance of probabilities that section 7 of the Charter of Rights and Freedoms, among others, were violated and would give rise to unfairness or disrepute to the justice system.  In Nixon, while citing, among various cases, section 7 and section 24 of the Charter, the Supreme Court said:

[33]  Until this Court’s decision in R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128, there was much controversy about whether a court had the power to stay validly instituted criminal proceedings for abuse of process.  The inherent jurisdiction of a superior court to control its own process by staying abusive proceedings had long been recognized in Canada.  However, it remained uncertain whether criminal courts had the discretion to stay proceedings for abuse of process, or whether this was a power reserved for the Attorney General under s. 508 (now s. 579) of the Criminal Code (pp. 131-32).

[34]  Jewitt put an end to the uncertainty by recognizing that a trial court judge had a “residual discretion” to stay proceedings to remedy abuse of process.  The Court held that the common law doctrine could be applied in narrow circumstances “where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community’s sense of fair play and decency and to prevent the abuse of a court’s process through oppressive or vexatious proceedings” (pp. 136-37).

[35]  Initially, the common law doctrine of abuse of process was viewed as analytically distinct from Charter considerations since its focus was more on maintaining confidence in the integrity of the judicial system than on protecting individual rights.  The common law and Charter analyses were also kept separate because of the different burdens of proof to successfully make out an abuse of process claim under the two regimes.  For an applicant to establish a violation under the Charter, the burden of proof was the balance of probabilities standard.  For an applicant to successfully invoke the court’s common law power to stay proceedings for abuse of process, the burden of proof was the more onerous “clearest of cases” standard.

[36]  Ten years later in R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, the Court noted that there was much overlap between the Charter and the common law doctrine of abuse of process, as the latter had found application in circumstances involving state conduct touching upon both “the integrity of the judicial system and the fairness of the individual accused’s trial” (para. 73).  Consequently, L’Heureux-Dubé J., writing for a unanimous Court on this point, held that the two regimes should be merged under s. 7 of the Charter.  Depending on the circumstances, different Charter guarantees may be engaged by the alleged abuse of process and thus some claims may be better addressed by reference to the specific procedural guarantee.  For example, “where the accused claims that the Crown’s conduct has prejudiced his ability to have a trial within a reasonable time, abuses may be best addressed by reference to s. 11(b)” (para. 73).  The Court identified two categories of abuse of process which would be caught by s. 7 of the Charter:  (1) prosecutorial conduct affecting the fairness of the trial; and (2) prosecutorial conduct that “contravenes fundamental notions of justice and thus undermines the integrity of the judicial process” (para. 73).

[37]  The Court held further that there was no practical utility in maintaining two distinct analytic regimes based on the different burdens of proof.  Even if a violation of s. 7 is proved on a balance of probabilities, the court would still have to determine the appropriate remedy under s. 24(1) of the Charter and the “clearest of cases” burden would still apply to justify the remedy of a judicial stay of proceedings (para. 69).  The Court made clear, however, that the fusion of common law and Charter claims of abuse of process under s. 7 of the Charter does not alter “the essential balancing character of abuse of process”.  L’Heureux-Dubé J. explained as follows (at para. 69):

Remedies less drastic than a stay of proceedings are of course available under s. 24(1) in situations where the “clearest of cases” threshold is not met but where it is proved, on a balance of probabilities, that s. 7 has been violated. In this respect the Charter regime is more flexible than the common law doctrine of abuse of process.  However, this is not a reason to retain a separate common law regime.  It is important to recognize that the Charter has now put into judges’ hands a scalpel instead of an axe — a tool that may fashion, more carefully than ever, solutions taking into account the sometimes complementary and sometimes opposing concerns of fairness to the individual, societal interests, and the integrity of the judicial system.  Even at common law, courts have given consideration to the societal (not to mention individual) interests in obtaining a final adjudication of guilt or innocence in cases involving serious offences.  . . . I see no reason why such balancing cannot be performed equally, if not more, effectively under the Charter, both in terms of defining violations and in terms of selecting the appropriate remedy to perceived violations.  [Emphasis added.]

[38]  Thus, in defining what constitutes a violation, it is important to recall what kind of harm the common law doctrine of abuse of process was intended to address and, in turn, why this degree of harm called for a stay of proceedings as the appropriate remedy.  In other words, while s. 24(1) of the Charter allows for a wide range of remedies, this does not mean that abuse of process can be made out by demonstrating a lesser degree of harm, either to the accused’s fair trial interests or to the integrity of the justice system.  Achieving the appropriate balance between societal and individual concerns defines the essential character of abuse of process.

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

Conduct By Others As An Abuse of Process
Can An Abuse of Process Arise From the Conduct of Someone Other Than a Prosecutor?

Furthermore, it is notable that the misconduct that arises may involve persons other that the prosecutor within the matter.  In the case of R. v. Craig, unreported, Court File: 16-4020, the misconduct involved the police officer who was improperly using the discretion afforded to a police officer as to whether to issue what is known as a Part 1 offence or a Part 3 offence when issuing a charge of speeding.  During Trial testimony the police officer admitted to laying charges using the Part 3 offence process, which involves a more burdensome procedure as well as potentially higher fines, among other things, in an effort to ensure that the prosecution of such charges, and resulting punishment, would be handled in a harsher than usual manner.  Accordingly, it was alleged that the police officer, rather than the prosecutor, who was abusing the process.  Within the court ruling, it was stated that indeed, abuse of process may arise where any government authority misuses a process.  Specifically in Craig, it was stated at page 3 to page 4 that:

Abuse of process as defined by the dictionary of Canadian Law states, conduct on the part of government authorities that undermines the fundamental principles that underlie the community sense of decency and fair play. Frivolous or vexatious, or if the process, is in fact, being used for an ulterior or improper purpose, or itself be an abuse.

The essence of abuse of process is the misuse or perversion of the court's process for an extraneous or ulterior purpose. There must be a purpose other than that which the process was designed to serve.

If a Stay Is Ordered Could a Guilty Person Go Unpunished?

Interestingly, also per the Conway case, a Stay may be ordered because the process is tainted by prosecutorial mischief even though, or despite, that there may be actual merit to the allegations within the case itself; however, to continue a mischievious proceeding would bring disrespect to the judicial system which is viewed as a societal cost greater than the ceasing of the proceeding prior to a determination of whether the allegations were true and therefore prior to a finding of guilt; and accordingly, the accused person may be relieved of a finding of guilt and a resulting punishment.  This reasoning was explained by the Supreme Court where it was said:

Under the doctrine of abuse of process, the unfair or oppressive treatment of an appellant disentitles the Crown to carry on with the prosecution of the charge.  The prosecution is set aside, not on the merits (see Jewitt, supra, at p. 148), but because it is tainted to such a degree that to allow it to proceed would tarnish the integrity of the court.  The doctrine is one of the safeguards designed to ensure "that the repression of crime through the conviction of the guilty is done in a way which reflects our fundamental values as a society" (Rothman v. The Queen, 1981 CanLII 23 (SCC), [1981] 1 S.C.R. 640, at p. 689, per Lamer J.)  It acknowledges that courts must have the respect and support of the community in order that the administration of criminal justice may properly fulfil its function.  Consequently, where the affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases, then the administration of justice is best served by staying the proceedings.

Summary Comment

Generally, the doctrine of abuse of process may be invoked, and a Stay of Proceedings ordered by the court or tribunal, where prosecutorial misconduct, or misconduct by other government personnel, is unjustly oppressive or vexatious and to continue with the proceeding would lessen public respect for the administration of justice.


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