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Charter - Abuse of Process

. R. v. Brunelle

In R. v. Brunelle (SCC, 2023) the Supreme Court of Canada considers abuse of process and the Charter, here distinguishing between the 'main categories' and the 'residual' categories of abuse of process:
[28] While there is no actual “right against abuse of process” in the Charter, different guarantees will be engaged depending on the circumstances (R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 73). Abuse of process in the main category engages the Charter provisions aimed primarily at protecting trial fairness for accused persons, namely ss. 8 to 14, as well as the principles of fundamental justice set out in s. 7. Abuse of process in the residual category, on the other hand, engages only the principles of fundamental justice in s. 7, which protect accused persons from any state conduct that, while not caught by ss. 8 to 14, is nevertheless unfair or vexatious to such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the justice system (O’Connor, at para. 73; Tobiass, at para. 89; Regan, at para. 50; Nixon, at para. 41; Babos, at para. 31).
. R. v. Brunelle

In R. v. Brunelle (SCC, 2023) the Supreme Court of Canada considers the nature of rights protected (broad, less so personal) under Charter s.7, here within an abuse of process analysis:
(3) Section 7 of the Charter Protects Accused Persons From State Conduct That Undermines the Integrity of the Justice System, Regardless of Whether There Is Personal Prejudice

[50] Indeed, under the residual category of abuse of process, “prejudice . . . is better conceptualized as an act tending to undermine society’s expectations of fairness in the administration of justice” (Nixon, at para. 41). As L’Heureux‑Dubé J. noted in O’Connor, the residual category of abuse of process
... does not relate to conduct affecting the fairness of the trial or impairing other procedural rights enumerated in the Charter, but instead addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process. [para. 73]
[51] In other words, impairment of the accused’s other rights or of the fairness of their trial, “although relevant, is not determinative” (Nixon, at para. 41), because the type of prejudice addressed by the principles of fundamental justice in s. 7 goes well beyond personal prejudice (O’Connor, at para. 64). All that must be found is that there is state conduct with repercussions on a larger scale, that is, conduct that causes prejudice to the integrity of the justice system in the eyes of society.

[52] Of course, the personal prejudice resulting from an alleged abuse of process in the residual category will not be without significance when it comes time to determine whether the abuse in question occurred. In fact, breaches of the fairness of an accused’s trial are often inseparable from and in addition to prejudice to the integrity of the justice system (O’Connor, at para. 64; see also R. v. Scott, 1990 CanLII 27 (SCC), [1990] 3 S.C.R. 979, at p. 1007).

[53] However, the fact remains that an accused’s s. 7 right may be infringed as a result of state conduct that meets the threshold for establishing an abuse of process in the residual category without the accused having suffered any personal prejudice, such as another of their constitutional rights being impaired or the fairness of their trial being compromised.

[54] This does not mean that every accused will have standing to apply for a remedy under s. 24(1) on the basis of any state conduct that undermines the integrity of the justice system, regardless of the causal connection between the abusive conduct and the proceedings against them. For a court to find that an accused’s right under s. 7 of the Charter has been infringed as a result of an abuse of process in the residual category, there must be a “sufficient causal connection” between the abusive conduct and the proceedings against the accused (Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at paras. 75‑78). It is this connection to which I now turn.

....

(4) The Proceedings Against the Accused Must Have Been Tainted by the Abusive State Conduct

[55] In my opinion, the causal connection between, on the one hand, the state conduct that undermines the integrity of the justice system and, on the other, the engagement of the accused’s interests protected by s. 7 of the Charter, that is, life, liberty and security of the person, will be considered sufficient where the criminal proceedings against the accused are “tainted” (in French, entachées) by the abusive conduct (see R. v. Conway, 1989 CanLII 66 (SCC), [1989] 1 S.C.R. 1659, at p. 1667).

[56] The proceedings against an accused will be regarded as tainted where abusive conduct occurred in the course of the proceedings or in the course of a police investigation or operation that targeted the accused or otherwise served to gather evidence to prove that the accused was guilty of the charge or charges laid against them. Obviously, the abusive conduct need not have had an impact on the accused’s other Charter rights or on the fairness of their trial in order to meet this requirement. It need only have occurred in the course of the investigation or police operation targeting the accused or the criminal proceedings against them. In the absence of this connection, I have difficulty seeing how the accused’s life, liberty and security of the person are engaged by the abusive conduct.

[57] This requirement is consistent with the purpose of the doctrine of abuse of process in the residual category, which is to enable courts to protect the integrity of the justice system by dissociating themselves from state conduct that constitutes an abuse of the judicial process (D. M. Paciocco, “The Stay of Proceedings as a Remedy in Criminal Cases: Abusing the Abuse of Process Concept” (1991), 15 Crim. L.J. 315, at p. 338). When there is no connection between the abusive conduct and the proceedings against the accused, the fact that the court dissociates itself from the conduct will not have the effect of preserving the integrity of the justice system.

[58] This requirement is also consistent with the applicable framework for granting a stay of proceedings under s. 24(1) of the Charter. This framework, which involves three cumulative conditions, is used to screen applications for stays of proceedings to ensure that this remedy is available only in the “clearest of cases”, which excludes cases in which the proceedings against the accused are not already tainted by abusive conduct.

[59] This can be confirmed simply by looking at the first condition, which reflects the fact that a stay of proceedings is a prospective remedy (Tobiass, at para. 91; Regan, at para. 54). This condition is aimed at preventing the perpetuation of prejudice to the integrity of the justice system that, if left alone, will continue to trouble the parties and the community as a whole in the future (O’Connor, at para. 75; Tobiass, at para. 91; Regan, at para. 54; Nixon, at para. 42; Babos, at para. 35). To this end, the court must ask whether “proceeding in light of the impugned conduct would do further harm to the integrity of the justice system” (Babos, at para. 38). This question cannot be divorced from the specific context of the court proceedings against each accused, since those are the proceedings for which a stay is sought (Paciocco, at p. 341). In other words, to meet the first condition for establishing that a stay of proceedings is an appropriate remedy, the accused must satisfy the court that carrying on with the proceedings against them would in itself do further harm to the integrity of the justice system.

[60] But it is only where the proceedings against an accused are tainted by abusive conduct that the accused can argue that refusing to stay the proceedings will manifest, perpetuate or aggravate prejudice to the integrity of the justice system, as required by s. 24(1) of the Charter. Conversely, where the proceedings against the accused are not first tainted by abusive state conduct, the accused’s application for a stay of proceedings under s. 24(1) on the basis of the abuse will have no chance of success. For this reason, it is entirely logical and desirable that such an accused not have standing to apply for a stay of proceedings under s. 24(1) on the basis of that conduct.

[61] Finally, the condition requiring that the proceedings be tainted by abusive conduct is consistent with the case law. In R. v. Castro, 2001 BCCA 507, 47 C.R. (5th) 391, the British Columbia Court of Appeal had to determine whether the accused Mr. Castro and his co‑accused had standing to apply for a stay of proceedings on the basis of an abuse of process in the residual category in a context where there was only an indirect connection between the abusive conduct and the court proceedings against them. The case concerned two related investigations: Project Escudo and Project Eye Spy. The latter was an undercover operation targeted at money laundering and drug trafficking. It led to Mr. Castro being identified as a possible drug trafficker. Project Escudo was then put in place to target Mr. Castro directly and was conducted in parallel with Project Eye Spy. The Crown argued that the accused, including Mr. Castro, did not have standing to assert the illegality of the transactions conducted as part of Project Eye Spy because Mr. Castro and his co‑accused were not alleging that they had participated in those transactions (para. 26). The Court of Appeal rejected that argument on the ground that the proceedings against Mr. Castro and his co‑accused were tainted by the abusive police conduct associated with Project Eye Spy:
In summary, the appellants have standing to argue the illegality of the police conduct in Project Eye Spy because it was intended to produce and in fact produced evidence directly leading to the appellants’ prosecution. The conduct formed a sufficiently close link with the prosecution that it can be reasonably argued that the prosecution is tainted with illegality. Whether this amounts to an abuse of process requiring a stay will be for the judge who hears the matter to decide in light of all the circumstances, including the legal opinions. [Emphasis added; para. 39.]
[62] Babos provides another illustration. In that case, one of the three forms of misconduct that Mr. Babos alleged against the Crown in support of his application for a stay of proceedings under s. 24(1) of the Charter for abuse of process in the residual category was a Crown attorney’s use of improper means to obtain the medical records of his co‑accused, Mr. Piccirilli, from the detention centre where the latter was being held pending trial. Even though that conduct was not directed at Mr. Babos and did not affect the proceedings against him in any way, it occurred during his criminal proceedings, and no one questioned the fact that, like Mr. Piccirilli, he had standing to allege it in support of his application for a stay of proceedings.

[63] It follows that one of the essential elements that must be shown for an accused to establish that their right under s. 7 of the Charter has been infringed as a result of an abuse of process in the residual category is that the abusive conduct tainted the proceedings against them. An accused who does not allege expressly or implicitly that the abusive state conduct tainted the proceedings against them will therefore not have standing to apply for a remedy under s. 24(1) on the basis of such conduct.

....

B. Did the Superior Court Judge Err in Finding That There Had Been an Abuse of Process in the Residual Category?

(1) The Analytical Framework That Applies Where Abuse of Process in the Residual Category Results From the Infringement of Other Charter Rights

[66] In O’Connor, this Court stated that both s. 7 of the Charter and the specific procedural guarantees set out in ss. 8 to 14 are intended to protect the individual interest of accused persons in a fair trial as well as the integrity of the justice system as a whole (paras. 64 and 73). In doing so, the Court did not recognize any “right against abuse of process” in the Charter. It preferred to state that, “[d]epending on the circumstances, different Charter guarantees may be engaged” (para. 73).

[67] Sometimes, the Charter’s specific procedural guarantees will be the best fit for remedying abuse of process. For example, where an accused alleges that misconduct by the Crown has prejudiced their ability to have a trial within a reasonable time, the application should be dealt with by applying the framework for s. 11(b) of the Charter (O’Connor, at para. 73).

[68] Where none of the specific procedural guarantees addresses the alleged misconduct, this Court has established that s. 7 of the Charter acts as a safeguard and provides accused persons with additional protection from state conduct that affects trial fairness in other ways and from “residual” conduct that otherwise undermines the integrity of the justice system (Nixon, at para. 36). In this sense, s. 7 plays a role complementary to that of ss. 8 to 14 by providing residual protection against abuse of process that goes beyond the protection offered by the specific guarantees in ss. 8 to 14. This role has also been recognized many times by the Court outside the abuse of process context (R. v. J.J., 2022 SCC 28, at para. 113; R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, at para. 24; R. v. White, 1999 CanLII 689 (SCC), [1999] 2 S.C.R. 417, at para. 44; R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668, at paras. 72 and 76; R. v. Pearson, 1992 CanLII 52 (SCC), [1992] 3 S.C.R. 665, at p. 688; R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, at p. 603; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), 1990 CanLII 135 (SCC), [1990] 1 S.C.R. 425, at pp. 537‑38).

[69] It is therefore not uncommon for s. 7 of the Charter to be invoked at the same time as one or more other procedural guarantees. This will be the case, for example, where alleged abusive state conduct involves more than just the infringement of a procedural guarantee set out in ss. 8 to 14. Indeed, abusive state conduct may take all sorts of forms. This Court has also specifically recognized that there may be cases in which “the nature and number of incidents, though individually unworthy of a stay, will require one when considered together” (Babos, at para. 73). This statement applies equally at the stage of determining whether abuse of process has occurred. Abuse of process in the residual category can thus result from an accumulation of incidents or state misconduct. Furthermore, there is no reason why such incidents or misconduct cannot take the form of infringements of a procedural Charter guarantee and, consequently, why the alleged abuse of process cannot result from an accumulation of infringements of one or more guarantees.

[70] In these circumstances, how are the relevant analytical frameworks to be reconciled? This Court has attempted in the past to establish the order of priority it should follow when an infringement of s. 7 of the Charter is alleged together with an infringement of one or more procedural guarantees (R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562, at para. 13; Canada (Attorney General) v. Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392, at para. 76; J.J., at paras. 213 and 327), but because these provisions are “inextricably” intertwined (Seaboyer, at p. 603; Mills, at para. 69; J.J., at para. 114) and complementary, the Court preferred to find as follows:
The appropriate methodology for assessing multiple Charter breaches alleged by the accused may depend on the factual record, the nature of the Charter rights at play, and how they intersect. This Court has repeatedly affirmed that the methodology for assessing multiple alleged Charter breaches is highly context‑ and fact‑specific ....

(J.J., at para. 115)
[71] It bears repeating that, in the abuse of process context, both s. 7 and ss. 8 to 14 of the Charter are intended to protect individuals from conduct that is unfair or vexatious to such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the justice system (O’Connor, at paras. 64 and 73). It follows that the frameworks for analyzing these provisions can coexist. Indeed, it is entirely appropriate to use the framework for abuse of process in the residual category developed for the purposes of s. 7 to analyze any accumulation of infringements of one or more procedural guarantees in order to determine whether the infringements as a whole meet the threshold for establishing abuse of process, that is, prejudice to the integrity of the justice system.

[72] Of course, the framework applicable to each of these procedural guarantees will remain relevant in determining whether the infringements making up the accumulation of infringements actually occurred. In fact, this determination will logically have to be made before the court decides whether there has been an abuse of process in the residual category. In this way, the frameworks coexist, those for the procedural guarantees being intertwined with the s. 7 framework.

[73] Before turning to the framework applicable in this case, I want to reiterate that proof of one or more infringements is not necessary to establish an abuse of process in the residual category, because the focus with this type of abuse is on conduct that undermines the integrity of the justice system, regardless of whether it breaches other Charter rights.

(2) The Framework Applicable in This Case

[74] In this case, the abuse of process alleged by the appellants results from an accumulation of infringements of Charter rights, specifically the right to be secure against unreasonable search or seizure and the right to retain and instruct counsel without delay, that reflects a situation of blatant disregard for their rights by the police (A.R., vol. X, at pp. 55‑56; A.R., vol. XI, at pp. 15, 70‑71 and 108‑9). The appellants do not focus on any breach of trial fairness resulting from these infringements. Further, they acknowledge that the infringements in question, considered individually, cannot justify the remedy they seek, namely a stay of the proceedings against them (Sup. Ct. reasons (2018), at paras. 5, 133 and 150). Rather, they allege that the accumulation of infringements and the police disregard for their rights that it reflects caused prejudice to the integrity of the justice system.

[75] In these circumstances, the framework developed for the purposes of s. 7 of the Charter for analyzing abuse of process in the residual category should be adopted to determine whether the alleged infringements as a whole meet the threshold for establishing abuse of process. However, this exercise makes it necessary to apply the framework for each of the provisions at issue, ss. 8 and 10(b), to determine whether the allegations of infringements are well founded. Only once each of the alleged infringements has been examined will it then be possible to determine whether all of the infringements, considered together, amount to conduct that is vexatious to such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the justice system.

[76] I pause here for a moment. The appellants argue that certain infringements were [translation] “planned and intended” and that the accumulation of these infringements reflects “blatant disregard” for their rights (A.R., vol. I, at p. 96). The appellants also describe the alleged infringements of the right to retain and instruct counsel without delay as being [translation] “systematic” (p. 92). Needless to say, the deliberate and widespread nature of one or more infringements of Charter rights is relevant in determining whether the threshold for establishing abuse of process in the residual category is met.

[77] Indeed, the Court has previously recognized the relevance of these two factors under the framework for s. 24(2) of the Charter at the stage of determining the seriousness of the Charter‑infringing conduct (R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 22 and 25; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 75; R. v. McColman, 2023 SCC 8, at para. 58). It is true that s. 24(2) is analytically distinct from ss. 8 and 10(b) in the sense that it comes into play only at the remedy stage, after an infringement has been found. However, the fact remains that the primary concern under s. 24(2), namely public confidence in the administration of justice (Grant, at paras. 67‑68), intersects with the interest protected by s. 7 when it comes to abuse of process in the residual category, namely the integrity of the justice system (O’Connor, at para. 61).
. R. v. Brunelle

In R. v. Brunelle (SCC, 2023) the Supreme Court of Canada considers Charter remedies [Charter 24(1)] where abuse of process is invoked, here focussing on the typical abuse of process remedy of a stay:
[29] When abuse of process is found in either category and a Charter guarantee has been infringed, s. 24(1) of the Charter gives a court of competent jurisdiction the power to grant “such remedy as [it] considers appropriate and just in the circumstances”. A wide range of remedies is available to the court (see, e.g., O’Connor, at para. 77). However, a stay of proceedings is by far the remedy most sought by victims of abuse of process. Since it has been characterized as the “ultimate remedy” (Tobiass, at para. 86), a stay of proceedings will be ordered only where the situation meets the high threshold of being one of the “clearest of cases” (O’Connor, at para. 69). This requires three conditions to be met:
(1) there must be prejudice to the accused’s right to a fair trial or to the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” (Regan, at para. 54; Babos, at para. 32);

(2) there must be no alternative remedy capable of redressing the prejudice (Regan, at para. 54; Babos, at para. 32);

(3) where there is still uncertainty over whether a stay of proceedings 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” (Regan, at para. 57; Babos, at para. 32).



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Last modified: 27-01-24
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