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Criminal - Abuse of Process. R. v. Khan
In R. v. Khan (Ont CA, 2024) the Ontario Court of Appeal denies an appeal on the merits, but orders the case be remitted for reconsideration on errors in an abuse-of-process application:[7] In the alternative, the appellant appeals the convictions based on alleged errors in the trial judge’s dismissal of the abuse of process application. The Crown concedes this ground of appeal. I agree that the application judge erred in concluding that the appellant failed to establish that the police had committed any criminal offence on the basis that the advertisement was not genuine. Importing a “genuine offer” element into the knowledge component of the mens rea requirement is inconsistent with this court’s decision in R. v. N.S., 2022 ONCA 160, 169 O.R. (3d) 401, at paras. 152-54. Accordingly, I would allow the conviction appeal on this basis.
[8] The parties agree on the proper disposition of the appeal, in the event that the conviction appeal on the other grounds is dismissed. We, too, agree. Accordingly, I would vacate the convictions pursuant to s. 686(2) of the Code but uphold the findings of guilt. Pursuant to s. 686(8), I would order a new trial limited to completing the abuse of process application. The convictions having been set aside, it is unnecessary to consider the sentence appeal.
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Conclusion and Disposition
[46] For these reasons I would allow the conviction appeal and vacate the convictions pursuant to s. 686(2) of the Code[1] but uphold the findings of guilt. Pursuant to s. 686(8) I would order a new trial limited to completing the abuse of process application. . 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). . 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). . R. v. Currado
In R. v. Currado (Ont CA, 2023) the Court of Appeal considered an appeal from an 'abuse of process' criminal application, where the defence argued that the defendent police officer should not have been investigated by his own police force:B. The Abuse of Process Claim
[8] Immediately before the trial was to commence, the appellant indicated that he proposed to bring an abuse of process application based on the prosecution’s failure to make appropriate disclosure and the loss of certain material evidence. The appellant argued that the non-disclosure and loss of material evidence was deliberate and demonstrated the mala fides of the LPS. He contended that the actions of the LPS resulted in significant prejudice to him, and a breach of his rights under s. 7 of the Canadian Charter of Rights and Freedoms. The appellant argued that a stay of proceedings was the only appropriate remedy in light of the LPS’s misconduct.
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[10] After the trial judge convicted the appellant on all charges, the appellant did renew the abuse of process application. The appellant made two submissions. ... Second, the appellant advanced a brand new abuse of process argument. He submitted that the LPS had assumed conflicting roles as investigator and victim in the same proceeding and, that by assuming those inherently conflicting roles, the LPS had tainted the proceedings, such that his trial was offensive to societal notions of fair play and decency and compromised the integrity of the justice system. The appellant maintained that the abuse of process flowing from the LPS conduct required a stay of proceedings, despite the absence of any unfairness to the appellant in the conduct of the trial.
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[15] The appellant does, however, renew the second argument made at trial. He submits that the involvement of the LPS in the investigation through to the trial resulted in a breach of his rights under s. 7 of the Charter and places this case in what the jurisprudence refers to as the “residual” category of abuse of process. That category captures those unusual situations in which, although the state conduct created no actual unfairness to an accused, it did “risk undermining the integrity of the judicial process”: R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31.
[16] In describing the second, or residual category, of abuse of process, Moldaver J., in Babos, said, at para. 35:[W]hen the residual category is invoked, the question is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution of offences. At times, state conduct will be so troublesome that having a trial – even a fair one – will leave the impression that the justice system condones conduct that offends society’s sense of fair play and decency. This harms the integrity of the justice system. [Emphasis added.] [17] Babos uses strong language. That language tells me that resort to the residual category of abuse of process to stay an otherwise proper criminal trial will seldom be appropriate. There is a significant difference between state conduct which is unwise, unnecessary, inappropriate, or even improper, and state conduct that goes so far as to be properly characterized as “offensive to societal norms of fair play and decency”.
[18] For example, in this case, a finding on the abuse of process application that it would have been better for the LPS to turn the investigation over to the OPP at a much earlier stage, or even a finding that the LPS was wrong in not turning the matter over to the OPP at an earlier stage, would not automatically place the LPS conduct within the residual category of the abuse of process doctrine. Not every state misstep or failure to comply with the various duties and obligations placed on the prosecution will be sufficiently serious or significant to justify a finding that the state conduct has so offended notions of fair play and decency as to undermine the integrity of the justice system.
[19] Counsel on appeal submits that the trial judge misconstrued the appellant’s argument. Counsel contends that the abuse of process did not arise out of the appellant’s status as a member of the LPS. Nor did it necessarily arise out of the particular offences alleged. Counsel submits, however, that when, as in this case, the offences targeted the misuse of LPS confidential sources and other key investigative assets, LPS became a victim of the crimes. LPS’s dual status as an investigator and a victim created an inherent or institutional conflict that would inevitably compromise the integrity of the trial process.
[20] In her helpful submissions, counsel argued that a reasonable person, fully apprised of the circumstances, would conclude that members of the LPS could not maintain the objective even-handed approach to the investigation of crime which the Canadian public expects of police officers. On counsel’s argument, the conduct of the appellant resulting in the charges cut too close to the bone to reasonably expect the LPS to remain objective and even-handed throughout the investigation.
[21] The appellant’s submission rests on the characterization of LPS as a victim of the offences and on the contention that, as the victim, LPS would not be seen by the reasonable observer as capable of maintaining the objectivity and even-handedness expected of the police when investigating crimes. I do not accept either premise of the argument.
[22] The term “victim” is defined in s. 2 of the Criminal Code, R.S.C. 1985, c. C-46, as “a person against whom an offence has been committed”. The offences for which the appellant was convicted are not offences against the LPS. Rather, they are offences categorized under Part IV of the Criminal Code as “Offences Against the Administration of Law and Justice”. The Crown is not required to prove that the LPS suffered any harm or other loss.
[23] The appellant places considerable emphasis on the “Victim Impact Statement” filed by the LPS at sentencing. Counsel maintains that the document demonstrates that LPS saw itself as the victim of the appellant’s offences. The document sets out various ways in which the appellant’s conduct potentially compromised the ability of the LPS to investigate criminal activity. The information in the document was relevant to sentencing, in that it spoke to the seriousness of the offences. The same information could have been put before the court by way of submissions from the Crown. The description of the document as a “Victim Impact Statement” is a harmless misnomer.
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[27] The duties and obligations of police investigators to persons under investigation are found primarily in the law pertaining to the torts of malicious prosecution and negligent investigation. As an investigator, LPS owed a duty to the appellant to investigate the allegations as a reasonable police officer would do in all the circumstances, taking into account all of the available evidence, both inculpatory and exculpatory: Hill v. Police Services of Hamilton-Wentworth, 2007 SCC 41, [2007] 3 S.C.R. 129, at para. 73. There is no claim made on appeal that the LPS investigation was not full, objective and even-handed.
[28] In the context of an allegation that the continued investigation of the criminal allegation by the LPS constituted an abuse of process, even though it had no impact on the fairness of the process, the question becomes – would a reasonable person, fully informed of the particulars, and looking at the matter realistically and practically, come to the conclusion that the members of the LPS could not perform, or could not be seen to perform, their investigatory duties in a reasonable, objective, and even-handed manner: Lippé, at pp. 141-145.
[29] We were not referred to any case in which a court held that the failure of a police force to turn an investigation over to an outside police force on its own, and without regard to the actual fairness of the process, constituted an abuse of process.
[30] Perhaps R. v. Grant, 2020 ONSC 2423, provides the case closest on its facts to this case. In Grant, the trial judge found that the prosecution of a police officer, who was alleged to have committed an assault while on duty, amounted to an abuse of process. The trial judge gave many reasons for coming to that conclusion, including the failure of the police force to refer the investigation to an outside force. The other grounds relied on by the trial judge arose out of the specific circumstances of the case and the impact of the prosecution conduct on the fairness of the accused’s trial.
[31] On appeal, the Summary Conviction Appeal Court (“SCAC”) reversed and sent the matter back to the trial court. The SCAC found that the trial judge had made several errors. In respect of the failure to refer the matter to an outside police force, the SCAC said, at para. 54:There is no requirement for the [police force] to bring in an outside Police Service to conduct a criminal investigation of one of their own. That in itself does not demonstrate a bias. A review of the details of the investigation that was conducted is the most important consideration as to whether the [Police Service] conducted themselves in a manner that a reasonable person could conclude that their investigation was appropriate. [32] I do not suggest that Grant provides a full analysis of the submission advanced by the appellant. It does, however, offer support for the approach taken by the trial judge in this case. Like the trial judge, the SCAC in Grant proceeded on a case-by-case basis in which “a review of the details of the investigation that was conducted, is the most important consideration”.
[33] The other cases put before the court, while helpful, are not abuse of process cases. Some of them involve negligence or malicious prosecution allegations in which conflicts of interest particular to the circumstances, formed part of the evidentiary record relied on by the plaintiffs in support of their tort claims: see e.g. Johnson v. Coppaway, 2004 CanLII 9755 (ON SC), 238 D.L.R. (4th) 126 (Ont. S.C.) Those cases do not advance the appellant’s argument.
[34] The appellant also referred to Duff v. James, 2016 ONSC 3737, aff’d 2017 ONCA 606, 416 D.L.R. (4th) 645. In Duff, the motion judge exercised a statutory power to direct that the OPP, rather than the local police force, enforce a family law order the judge made. The motion judge directed the OPP to enforce the order because the subject of the order was a member of the local police force and there had been difficulties enforcing earlier orders. A judge’s exercise of a statutory power aimed at facilitating the effective enforcement of court orders does not engage any of the considerations relevant on the analysis of an abuse of process claim.
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[38] The appellant has failed to demonstrate any abuse of process. In so holding, I do not, however, diminish the care a police force must exercise in determining whether, in the circumstances of a particular case, the interests of justice would be better served by asking an outside police force to take over an investigation. Police services are alive to conflict concerns and most have written guidelines in place to structure their consideration if, and when, an outside force should be brought in to an investigation. An example of the guidelines is found in Grant, at para. 21.
[39] The LPS was alive to the potential risks associated with its conduct of the investigation. It chose to turn carriage of the matter over to the OPP before any charges were laid. It may be that the LPS should have sought the assistance of the OPP earlier than it did, and it may be that members of the LPS should have played a less active role after the OPP became involved. However, even if one assumes an error in judgment by the LPS, that error is not sufficiently serious to render the criminal prosecution of the appellant an abuse of process. . R. v. Currado
In R. v. Currado (Ont CA, 2023) the Court of Appeal considered a defence allegation of 'institutional bias':[24] The appellant also places reliance on the Supreme Court of Canada’s judgment in R. v. Lippé, 1990 CanLII 18 (SCC), [1991] 2 S.C.R. 114. He submits that the institutional bias described in Lippé finds a counterpart in this case in the LPS’s institutional conflict of interest arising out of its role as victim and investigator.
[25] Institutional bias, as described in Lippé, can have application in the context of an abuse of process claim based on the residual category. A conflict giving rise to an abuse of process within the residual category can arise where the conflict flows from generally applicable statutory mandates or structures, and not from any concerns particular to a specific fact situation. Section 19(2) of the Special Investigations Unit Act, 2019, S.O. 2019, c. 1, Sched. 5, which requires that police forces not investigate member police officers for certain serious offences, can be seen as a statutory recognition that the risk of institutional bias, either for or against a charged officer, is, in the circumstances addressed by the Act, so serious as to preclude a police force from investigating the matter.
[26] Beyond describing the concept of institutional bias, Lippé is of no assistance in this case. Lippé involved a challenge under s. 11(d) of the Charter to the independence and impartiality of municipal courts in Québec. Section 11(d) applies to courts who are adjudicating charges against individuals. The concepts of impartiality and independence, as considered in Lippé, have no application to the LPS, an investigative arm of the administration of justice.
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