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Abuse of Process - Criminal Procedure (2). R. v. Abdella
In R. v. Abdella (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, this brought against a "conviction for possession of fentanyl for the purpose of trafficking" - here where the defendant elected for an Ontario Court trial, "his trial was set to conclude over the 18-month ceiling set in R. v. Jordan, 2016 SCC 27" and "the Deputy Attorney General of Canada[1] ... preferred a direct indictment, causing the appellant’s trial to proceed in the Superior Court of Justice".
Here the court considers whether this Crown action constituted an abuse of process (and thus violated prosecutorial discretion), and if so whether a stay of proceedings was the appropriate remedy:B. The Stay Application
[11] The appellant brought an application to stay the proceedings, arguing that he had a right to be tried in the Ontario Court of Justice pursuant to s. 7 of the Charter, a right that he argued vested upon his election. He maintained that the Crown breached this right by preferring a direct indictment after he made what he characterized as his constitutionally protected election to be tried in the provincial court. He said that nothing short of a stay of proceedings pursuant to s. 24(1) of the Charter could remedy that breach.
[12] In the alternative, the appellant argued that it was an abuse of process for the Crown to prefer a direct indictment to “escape the consequences of Crown conduct which caused the delay.” While the appellant accepted that the Crown could prefer a direct indictment from the outset of the prosecution, he objected to the “taking away” of his election to be tried in the provincial court once that election had been made.
[13] The application was dismissed on January 9, 2024.
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C. The Direct Indictment Was Not an Abuse of Process
[54] As his last ground of appeal, the appellant argues that the application judge erred in failing to find that the prosecution’s conduct amounted to an abuse of process warranting a stay of proceedings. The Crown is said to have acted upon an improper motive in preferring the indictment because it was done solely to avoid a stay of proceedings based on unreasonable delay caused by the prosecution. The appellant argues that it was abusive to override his choice to be tried in the provincial court simply to avoid a potential stay of proceedings.
[55] I see no error in the application judge’s approach.
[56] Of course, as always, the powers of the Attorney General are not without limits. Those limits come in different forms. As recently reviewed in Varennes, certain decisions fall within “core prosecutorial discretion” and are reviewable only on the basis of abuse of process, while other decisions are reviewable on a lesser standard.
[57] The parties appear to agree that the Attorney General’s decision to prefer a direct indictment is only reviewable on an abuse of process standard. So do I.
[58] A good deal of jurisprudential space has been allotted to discussing the exercise of Crown discretion and the basis upon which it can be reviewed. In Krieger, at paras. 30-32, the court acknowledged the independent decision-making power of the Attorney General in the exercise of “prosecutorial discretion”. This was referred to as a “fundamental principle of the rule of law under our Constitution”, leaving some decisions “beyond the legitimate reach of the court”, and subject only to the abuse of process doctrine: Krieger, at para. 32.
[59] While the Krieger court was quick to note that not every discretionary decision made by a Crown prosecutor is constitutionally protected, many are. This matters because exercises of “prosecutorial discretion” are owed strong deference and are only reviewable under the abuse of process doctrine: R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at paras. 35-36; Krieger, at para. 45. The underlying rationale for this deference was addressed in Power, at p. 627:[T]he Crown cannot function as a prosecutor before the court while also serving under its general supervision. The court, in turn, cannot both supervise the exercise of prosecutorial discretion and act as an impartial arbitrator of the case presented to it. [60] Exercises of prosecutorial discretion constitute the “core of the Attorney General’s office” (emphasis added): Krieger, at para. 43. These core powers envelop a broad category of decision making, essentially decisions that relate to the “nature and extent of the prosecution and the Attorney General’s participation in it”: Krieger at para. 47. Examples of such decisions were provided in Krieger, at para. 46, and built upon in Anderson, where Moldaver J. included “the decision to prefer a direct indictment” as one that falls within the nature and extent of the prosecution: Anderson, at para. 44.
[61] More recently, in Varennes, Karakatsanis J. reaffirmed that preferring a direct indictment is an exercise of core prosecutorial discretion and is thus owed deference in order to respect the “separation of powers and the constitutional role of the Attorney General”: Varennes, at paras. 48-49; see also R. v. S.J.L., 2009 SCC 14, [2009] 1 S.C.R. 426, at para. 24; R v. Bulhosen, 2019 ONCA 600, 377 C.C.C. (3d) 309, at para. 88, leave to appeal refused, [2019] S.C.C.A. No. 423.
[62] Accordingly, judicial review of the decision on whether to prefer a direct indictment is subject to the abuse of process doctrine. That doctrine is aimed at “egregious” Crown conduct threatening the right to a fair trial or the integrity of the justice system: Anderson, at para. 50.
[63] There are two general categories of cases in which a stay of proceedings for an abuse of process is warranted. The first category concerns state conduct compromising the fairness of an accused’s trial. This is referred to as the “main” category. The second, “residual”, category involves state conduct that does not threaten trial fairness, but “risks undermining the integrity of the judicial process”: R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31. The appellant’s argument seems to span both categories. In my view, it fails on both.
[64] The test for both categories is the same. It is a three-step test, but I only address the first step here as it is dispositive of the appeal.
[65] The first question is whether there is prejudice to the accused’s right to a fair trial or the integrity of the justice system that will be manifested, perpetuated or aggravated by continuing the trial: Babos, at para. 32. In this case, the answer is no under both categories. The appellant’s right to a fair trial was not prejudiced: Babos, at para. 34. Nor was there conduct offensive to societal notions of fair play and decency such that proceeding with a trial in the face of the direct indictment would be harmful to the integrity of the justice system: Babos, at para. 35.
[66] There was no dispute about disclosure in this case. It was complete by the time of the direct indictment. The net effect of the direct indictment was merely to move the trial from the Ontario Court of Justice to the Superior Court. Both courts offer fair trials.
[67] As for the motive, the Deputy Attorney General was entirely transparent about why the direct indictment was preferred. As Crown counsel said in his email to defence counsel, “[g]iven our inability to accommodate the matter in [the Ontario Court of Justice] within 18 months, the Director of Public Prosecutions has signed the attached direct indictment.” Clearly, the underlying concern was the pace at which the matter was moving in the Ontario Court of Justice, meaning the trial could not be accommodated within the Jordan ceiling in that court.
[68] As it turned out, the Superior Court was able to provide an earlier trial date than the one scheduled in the provincial court. There is no indication as to whether the Crown knew that at the time the direct indictment was preferred. But it is a fact that the appellant received an earlier trial date because his matter was moved to the Superior Court, a trial date that came much closer to the 18-month ceiling that applied in the Ontario Court of Justice.
[69] The appellant contends that there is something inherently abusive about the Crown having taken steps to avoid what could have been a stay of proceedings for unreasonable delay. Respectfully, I do not share that view.
[70] There would have been nothing wrong with the Crown having preferred a direct indictment right after the charges were laid in this case. Had the Crown done so, the case would have been subject to a 30-month ceiling all along. This is simply a by-product of the ceilings set out in Jordan, ceilings that have served to awaken all justice participants to their responsibilities to move matters forward.
[71] It falls directly within the jurisdiction of the Chief Law Officer of the Crown to ensure that prosecutions are moved along as expeditiously as possible and seen through to completion: Jordan, at para. 112. In fulfilling its constitutional mandate to avoid unreasonable delay, the Crown may legitimately rely on direct indictments under s. 577: R. v. Burg and Khan, 2021 MBCA 77, 407 C.C.C. (3d) 103, at paras. 55-56, leave to appeal refused, [2021] S.C.C.A. No. 385; Charlie, at para. 32; Bulhosen, at paras. 89-90; and Ste-Marie c. R., 2022 QCCA 1137, at paras. 100-101, leave to appeal refused, [2023] S.C.C.A. No. 280.
[72] Although the direct indictment obviated the potential for a successful s. 11(b) application in the Ontario Court of Justice, that was precisely the point. The appellant did not have a right to a s. 11(b) stay; he had a right to a trial in a reasonable time. That right aligns with the societal right to a trial on the merits in a reasonable time. In intent and effect, the direct indictment facilitated that right by moving the trial forward.
[73] In sum, preferring the direct indictment afforded the appellant an earlier trial than would have been possible had he remained in the Ontario Court of Justice. There was no prejudice to his fair trial interests or to the integrity of the justice system. There was no abuse of process.
[74] Before concluding, I would observe that an accused is not without recourse under s. 11(b) when a direct indictment increases the applicable ceiling to 30 months. Jordan provides a framework for establishing unreasonable delay even if it falls below the presumptive ceiling.
[75] I acknowledge that in such cases the onus will fall to the defence to show that the delay is unreasonable by establishing that (i) it took meaningful steps showing a “sustained effort to expedite the proceedings”; and (ii) “the case took markedly longer than it reasonably should have”: Jordan, at para. 82. At the same time, it strikes me that where an indictment is preferred late in the day, adding 12 months to the ceiling, the entire procedural history of the case will have to be considered, including the fact that much of the delay was incurred in a court that has a lower ceiling. This would be an important contextual factor to take into account when considering whether the case took markedly longer than it should have. Such an approach would give full effect to the Supreme Court’s instruction to “step back from the minutiae and adopt a bird’s-eye view of the case”: Jordan, at para. 91.
[76] Here, the invocation of s. 577 of the Criminal Code afforded the appellant an earlier trial, an outcome entirely consistent with s. 11(b) of the Charter. In my view, the Deputy Attorney General had jurisdiction to prefer the direct indictment here and there was no abuse of process. . R. v. Brunelle
In R. v. Brunelle (SCC, 2023) the Supreme Court of Canada considers abuse of process in the criminal context:[27] The law on abuse of process is well settled. The “key point” is that abuse of process “refers to Crown conduct that is egregious and seriously compromises trial fairness and/or the integrity of the justice system” (R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 50). As the preceding passage suggests, two types of state conduct meet the threshold for establishing abuse of process: conduct that compromises trial fairness (“main category”) and conduct that, without necessarily threatening the fairness of the accused’s trial, nevertheless undermines the integrity of the justice system (“residual category”) (Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 CanLII 322 (SCC), [1997] 3 S.C.R. 391, at para. 89; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 55; R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566, at para. 36; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31; see also Brind’Amour v. R., 2014 QCCA 33, at para. 53).
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