|
Abuse of Process - Charter. R. v. Varennes
In R. v. Varennes (SCC, 2025) the Supreme Court of Canada considered law that indictable offences should be tried by judge and jury, except where both defendant and Crown agree to judge-only trials [under CCC 469, 471 and 473 - Part XIV 'Jurisdiction']. The court allowed an appeal, here where the Quebec Court of Appeal ordered a new murder trial after the Crown refused to consent to a judge-only trial - finding two exceptions (Charter s.11(b) due to risk of COVID delay and inherent jurisdiction) to this statutory elections rule.
Here the court considers the relationship between abuse of process and Charter s.7:[83] The intervening Attorneys General suggest that clarity is needed on the relationship, if any, between an abuse of process and a stand-alone Charter claim (I.F., Attorney General of British Columbia, at para. 20; I.F., Attorney General of Ontario, at para. 15).
[84] Abuse of process is a common law doctrine that predates the Charter (see generally R. v. Krannenburg, 1980 CanLII 179 (SCC), [1980] 1 S.C.R. 1053, at p. 1061; Connelly v. Director of Public Prosecutions, [1964] A.C. 1254 (H.L.), at p. 1354; Cocker v. Tempest (1841), 7 M. & W. 502, 151 E.R. 864; R. Grondin, “Une doctrine d’abus de procédure revigorée en droit pénal canadien” (1983), 24 C. de D. 673, at pp. 685-86). That said, abuse of process and the Charter overlap in certain respects. It is a principle of fundamental justice under s. 7 of the Charter that a person must not be subject to an abuse of process (R. v. Potvin, 1993 CanLII 113 (SCC), [1993] 2 S.C.R. 880, at p. 915). The factual underpinnings of a claim of abuse of process may also establish a breach of another Charter right (O’Connor, at para. 73; Brunelle, at para. 28).
[85] However, the common law abuse of process doctrine and s. 24(1) of the Charter each have their own remedial framework. A claimant whose Charter rights have been violated need not establish an abuse of process before obtaining a remedy under s. 24(1) (R. v. La, 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680, at para. 20). The appellant did not need to establish an abuse of process to obtain a Charter remedy in this case. Every Charter violation merits a remedy, even if that remedy is merely a judicial declaration recognizing the violation (Ward, at para. 37).
[86] It may be appropriate and just for a court to make an order under s. 24(1) that affects an exercise of core prosecutorial discretion, even absent an abuse of process. As our Court said in Jordan, “Crown counsel must be alive to the fact that any delay resulting from their prosecutorial discretion must conform to the accused’s s. 11(b) right” (para. 79; see also para. 138; R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625, at para. 5; R. v. K.J.M., 2019 SCC 55, [2019] 4 S.C.R. 39, at para. 110; R. v. Thanabalasingham, 2020 SCC 18, [2020] 2 S.C.R. 413, at para. 5).
|
