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Abuse of Process - Criminal Procedure

. 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.


[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.


[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.


[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.


[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. Ramelson

In R. v. Ramelson (SCC, 2022) the Supreme Court of Canada reviewed and developed the law of entrapment (which is deemed an abuse of process) in an internet child luring case:
A. The Entrapment Doctrine

[29] Whatever their utility in fighting crime, some police techniques are “unacceptable in a free society with strong notions of fairness, decency, and privacy” (Ahmad, at para. 16). Entrapment is one of them. It is not a traditional defence, but a form of abuse of process whose only remedy is a stay of proceedings. It may occur in two ways:
(a) the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry;

(b) although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence.

(Mack, at pp. 964-65)
[30] As a form of abuse of process, the entrapment doctrine flows from courts’ inherent jurisdiction to protect the justice system’s integrity, a power necessary to preserve “the respect and support of the community”, upon which the rule of law depends (R. v. Conway, 1989 CanLII 66 (SCC), [1989] 1 S.C.R. 1659, at p. 1667; see Mack, at p. 938). Like abuse of process, the entrapment doctrine censures state conduct that “violates our notions of ‘fair play’ and ‘decency’ and which shows blatant disregard for the qualities of humanness which all of us share” (Mack, at p. 940).
. R. v. Zakos

In R. v. Zakos (Ont CA, 2022) the Court of Appeal extensively explains criminal entrapment, a form of abuse of process [paras 21-51].

. R. v. Howley

In R. v. Howley (Ont CA, 2021) the Court of Appeal considered the doctrine of abuse of process in the criminal context:
[51] As the Supreme Court stated in R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31, there are generally two categories of abuse of process: cases in which state conduct compromises the fairness of an accused’s trial, and cases in which state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process. In the most drastic cases, an abuse of process may justify a stay of proceedings. In order to apply a stay, the court must be satisfied: 1) that the prejudice to the accused’s fair trial rights will be “manifested, perpetuated, or aggravated through the conduct of the trial, or by its outcome”; 2) that there is no alternative remedy capable of redressing the prejudice; and 3) where there is still uncertainty over whether a stay 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”: Babos, at para. 32, citing R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297.
. R v Anderson

In R v Anderson (SCC, 2014), which examined the consideration to be given to the aboriginal status of a defendant in sentencing, the Supreme Court of Canada took the oppourtunity to expound on the range of judicial review available against the Crown, particularly with respect to prosecutorial discretion and abuse of process. It held that while all Crown decisions are reviewable for abuse of process, prosecutorial decisions are only reviewable for abuse of process. These passages are essential reading for anyone involved with these issues.
Review of Crown Decision Making

[35] There are two distinct avenues for judicial review of Crown decision making. The analysis will differ depending on which of the following is at issue: (1) exercises of prosecutorial discretion; or (2) tactics and conduct before the court.

[36] All Crown decision making is reviewable for abuse of process. However, as I will explain, exercises of prosecutorial discretion are only reviewable for abuse of process. In contrast, tactics and conduct before the court are subject to a wider range of review. The court may exercise its inherent jurisdiction to control its own processes even in the absence of abuse of process.

(a) Prosecutorial Discretion

[37] This Court has repeatedly affirmed that prosecutorial discretion is a necessary part of a properly functioning criminal justice system: Beare, at p. 410; R. v. T. (V.), 1992 CanLII 88 (SCC), [1992] 1 S.C.R. 749, at pp. 758-62; R. v. Cook, 1997 CanLII 392 (SCC), [1997] 1 S.C.R. 1113, at para. 19. In Miazga v. Kvello Estate, 2009 SCC 51 (CanLII), [2009] 3 S.C.R. 339, at para. 47, the fundamental importance of prosecutorial discretion was said to lie, “not in protecting the interests of individual Crown attorneys, but in advancing the public interest by enabling prosecutors to make discretionary decisions in fulfilment of their professional obligations without fear of judicial or political interference, thus fulfilling their quasi-judicial role as ‘ministers of justice’”. More recently, in Sriskandarajah v. United States of America, 2012 SCC 70 (CanLII), [2012] 3 S.C.R. 609, at para. 27, this Court observed that “[n]ot only does prosecutorial discretion accord with the principles of fundamental justice — it constitutes an indispensable device for the effective enforcement of the criminal law”.

[38] Unfortunately, subsequent to this Court’s decision in Krieger v. Law Society of Alberta, 2002 SCC 65 (CanLII), [2002] 3 S.C.R. 372, confusion has arisen as to what is meant by “prosecutorial discretion” and the law has become cloudy. The present appeal provides an opportunity for clarification.

[39] In Krieger, this Court provided the following description of prosecutorial discretion:
“Prosecutorial discretion” is a term of art. It does not simply refer to any discretionary decision made by a Crown prosecutor. Prosecutorial discretion refers to the use of those powers that constitute the core of the Attorney General’s office and which are protected from the influence of improper political and other vitiating factors by the principle of independence. [para. 43]
[40] The Court went on to provide the following examples of prosecutorial discretion: whether to bring the prosecution of a charge laid by police; whether to enter a stay of proceedings in either a private or public prosecution; whether to accept a guilty plea to a lesser charge; whether to withdraw from criminal proceedings altogether; and whether to take control of a private prosecution (para. 46). The Court continued:
Significantly, what is common to the various elements of prosecutorial discretion is that they involve the ultimate decisions as to whether a prosecution should be brought, continued or ceased, and what the prosecution ought to be for. Put differently, prosecutorial discretion refers to decisions regarding the nature and extent of the prosecution and the Attorney General’s participation in it. Decisions that do not go to the nature and extent of the prosecution, i.e., the decisions that govern a Crown prosecutor’s tactics or conduct before the court, do not fall within the scope of prosecutorial discretion. Rather, such decisions are governed by the inherent jurisdiction of the court to control its own processes once the Attorney General has elected to enter into that forum. [Emphasis added; emphasis in original deleted; para. 47.]
[41] Since Krieger, courts have struggled with the distinction between prosecutorial discretion, and tactics and conduct. The use of the word “core” in Krieger has led to a narrow definition of prosecutorial discretion, notwithstanding the expansive language used in Krieger to define the term, namely: “. . . decisions regarding the nature and extent of the prosecution and the Attorney General’s participation in it” (para. 47). Difficulty in defining the term has also led to confusion regarding the standard of review by which particular Crown decisions are to be assessed.

[42] The current appeal presents a good illustration of both problems. As noted earlier, the Newfoundland and Labrador Court of Appeal split on the issue of how to characterize the Crown’s decision to tender the Notice. Welsh J.A. held that it was a matter of “core” prosecutorial discretion, whereas Green C.J.N.L. and Rowe J.A. (following R. v. Gill, 2012 ONCA 607 (CanLII), 112 O.R. (3d) 423, at paras. 54-56), considered it to be a tactical decision and thus “outside [the] core” (para. 49).

[43] The court also diverged on the applicable standard of review. Welsh J.A. held that the distinction between core decisions and decisions falling outside the core was of no consequence as both types of decisions were reviewable on the same standard — the standard articulated in Gill, in which the Ontario Court of Appeal held that the decision to tender the Notice was reviewable if it (1) undermined the integrity of the administration of justice; (2) operated in a manner that rendered the sentencing proceedings fundamentally unfair; (3) was arbitrary; or (4) resulted in a limit on the accused’s liberty that was grossly disproportionate to the state interest in pursuing a particular course of action (Gill, at para. 59). Green C.J.N.L. and Rowe J.A. disagreed. In their view, tactical decisions (decisions “outside the core”) were reviewable according to the Gill standard, whereas “core” prosecutorial discretion was reviewable solely for abuse of process. The diverging views present in this case, and in many others, demonstrate the unsatisfactory state of the law.

[44] In an effort to clarify, I think we should start by recognizing that the term “prosecutorial discretion” is an expansive term that covers all “decisions regarding the nature and extent of the prosecution and the Attorney General’s participation in it” (Krieger, at para. 47). As this Court has repeatedly noted, “[p]rosecutorial discretion refers to the discretion exercised by the Attorney-General in matters within his authority in relation to the prosecution of criminal offences” (Krieger, at para. 44, citing Power, at p. 622, quoting D. Vanek, “Prosecutorial Discretion” (1988), 30 Crim. L.Q. 219, at p. 219 (emphasis added)). While it is likely impossible to create an exhaustive list of the decisions that fall within the nature and extent of a prosecution, further examples to those in Krieger include: the decision to repudiate a plea agreement (as in R. v. Nixon, 2011 SCC 34 (CanLII), [2011] 2 S.C.R. 566); the decision to pursue a dangerous offender application; the decision to prefer a direct indictment; the decision to charge multiple offences; the decision to negotiate a plea; the decision to proceed summarily or by indictment; and the decision to initiate an appeal. All pertain to the nature and extent of the prosecution. As can be seen, many stem from the provisions of the Code itself, including the decision in this case to tender the Notice.

[45] In sum, prosecutorial discretion applies to a wide range of prosecutorial decision making. That said, care must be taken to distinguish matters of prosecutorial discretion from constitutional obligations. The distinction between prosecutorial discretion and the constitutional obligations of the Crown was made in Krieger, where the prosecutor’s duty to disclose relevant evidence to the accused was at issue:
In Stinchcombe, supra, the Court held that the Crown has an obligation to disclose all relevant information to the defence. While the Crown Attorney retains the discretion not to disclose irrelevant information, disclosure of relevant evidence is not, therefore, a matter of prosecutorial discretion but, rather, is a prosecutorial duty. [Emphasis added; para. 54.]
Manifestly, the Crown possesses no discretion to breach the Charter rights of an accused. In other words, prosecutorial discretion provides no shield to a Crown prosecutor who has failed to fulfill his or her constitutional obligations such as the duty to provide proper disclosure to the defence.

(i) The Standard of Review for Prosecutorial Discretion

[46] The many decisions that Crown prosecutors are called upon to make in the exercise of their prosecutorial discretion must not be subjected to routine second-guessing by the courts. The courts have long recognized that decisions involving prosecutorial discretion are unlike other decisions made by the executive: see M. Code, “Judicial Review of Prosecutorial Decisions: A Short History of Costs and Benefits, in Response to Justice Rosenberg” (2009), 34 Queen’s L.J. 863, at p. 867. Judicial non-interference with prosecutorial discretion has been referred to as a “matter of principle based on the doctrine of separation of powers as well as a matter of policy founded on the efficiency of the system of criminal justice” which also recognizes that prosecutorial discretion is “especially ill-suited to judicial review”: Power, at p. 623. In Krieger, the Court discussed the separation of powers doctrine as a basis for judicial deference to prosecutorial discretion:
In our theory of government, it is the sovereign who holds the power to prosecute his or her subjects. A decision of the Attorney General, or of his or her agents, within the authority delegated to him or her by the sovereign is not subject to interference by other arms of government. An exercise of prosecutorial discretion will, therefore, be treated with deference by the courts and by other members of the executive . . . . [para. 45]
[47] The Court also noted the more practical problems associated with regular review of prosecutorial discretion:
The quasi-judicial function of the Attorney General cannot be subjected to interference from parties who are not as competent to consider the various factors involved in making a decision to prosecute. To subject such decisions to political interference, or to judicial supervision, could erode the integrity of our system of prosecution. [para. 32]
[48] Manifestly, prosecutorial discretion is entitled to considerable deference. It is not, however, immune from all judicial oversight. This Court has repeatedly affirmed that prosecutorial discretion is reviewable for abuse of process: Krieger, at para. 32; Nixon, at para. 31; Miazga, at para. 46.

[49] The jurisprudence pertaining to the review of prosecutorial discretion has employed a range of terminology to describe the type of prosecutorial conduct that constitutes abuse of process. In Krieger, this Court used the term “flagrant impropriety” (para. 49). In Nixon, the Court held that the abuse of process doctrine is available where there is evidence that the Crown’s decision “undermines the integrity of the judicial process” or “results in trial unfairness” (para. 64). The Court also referred to “improper motive[s]” and “bad faith” in its discussion (para. 68).

[50] Regardless of the precise language used, the key point is this: abuse of process refers to Crown conduct that is egregious and seriously compromises trial fairness and/or the integrity of the justice system. Crown decisions motivated by prejudice against Aboriginal persons would certainly meet this standard.

[51] In sum, prosecutorial discretion is reviewable solely for abuse of process. The Gill test applied by the Newfoundland and Labrador Court of Appeal was developed at a time when courts were struggling with the post-Krieger “core” versus “outside the core” dichotomy. To the extent the Gill test suggests that conduct falling short of abuse of process may form a basis for reviewing prosecutorial discretion, respectfully, it should not be followed.

(ii) The Threshold Evidentiary Burden

[52] The burden of proof for establishing abuse of process lies on the claimant, who must prove it on a balance of probabilities: Cook, at para. 62; R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 69, per L’Heureux-Dubé J.; R. v. Jolivet, 2000 SCC 29 (CanLII), [2000] 1 S.C.R. 751, at para. 19. However, given the unique nature of prosecutorial discretion — specifically, the fact that the Crown will typically (if not always) be the only party who will know why a particular decision was made ― this Court in Nixon recognized that where prosecutorial discretion is challenged, the Crown may be required to provide reasons justifying its decision where the claimant establishes a proper evidentiary foundation: para. 60.

[53] In Nixon, this Court noted the following reasons as to why there must be a “proper evidentiary foundation” before the abuse of process claim should proceed:
. . . mandating a preliminary determination on the utility of a Charter-based inquiry is not new: R. v. Pires, 2005 SCC 66 (CanLII), [2005] 3 S.C.R. 343. Similar thresholds are also imposed in other areas of the criminal law, they are not an anomaly. Threshold requirements may be imposed for pragmatic reasons alone. As this Court observed in Pires (at para. 35):
For our justice system to operate, trial judges must have some ability to control the course of proceedings before them. One such mechanism is the power to decline to embark upon an evidentiary hearing at the request of one of the parties when that party is unable to show a reasonable likelihood that the hearing can assist in determining the issues before the court.
Quite apart from any such pragmatic considerations, there is good reason to impose a threshold burden on the applicant who alleges that an act of prosecutorial discretion constitutes an abuse of process. Given that such decisions are generally beyond the reach of the court, it is not sufficient to launch an inquiry for an applicant to make a bare allegation of abuse of process. [Emphasis added; paras. 61-62.]
[54] Nixon involved the Crown’s repudiation of a plea agreement. The Court held that the repudiation of a plea agreement was “a rare and exceptional event” that met the evidentiary threshold and justified an inquiry into the propriety of the Crown’s decision: Nixon, at para. 63. Indeed, the evidence in Nixon was that only two other plea agreements had been repudiated in Alberta’s history. As a result, the Court held that
to the extent that the Crown is the only party who is privy to the information, the evidentiary burden shifts to the Crown to enlighten the court on the circumstances and reasons behind its decision to resile from the agreement. That is, the Crown must explain why and how it made the decision not to honour the plea agreement. The ultimate burden of proving abuse of process remains on the applicant and, as discussed earlier, the test is a stringent one. However, if the Crown provides little or no explanation to the court, this factor should weigh heavily in favour of the applicant in successfully making out an abuse of process claim. [para. 63]
[55] Requiring the claimant to establish a proper evidentiary foundation before embarking on an inquiry into the reasons behind the exercise of prosecutorial discretion respects the presumption that prosecutorial discretion is exercised in good faith: Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42 (CanLII), [2004] 2 S.C.R. 248, at para. 95. It also accords with this Court’s statement in Sriskandarajah, at para. 27, that “prosecutorial authorities are not bound to provide reasons for their decisions, absent evidence of bad faith or improper motives” (emphasis added).

[56] Finally, I note that the content of a Crown policy or guideline may be relevant when a court is considering a challenge to the exercise of prosecutorial discretion. Policy statements or guidelines are capable of informing the debate as to whether a Crown prosecutor’s conduct was appropriate in the particular circumstances. See R. J. Frater, Prosecutorial Misconduct (2009), at p. 259. For example, a decision by a Crown prosecutor that appears to contravene a Crown policy or guideline may provide some evidence that assists the claimant in establishing the threshold evidentiary foundation. However, as the intervener the Director of Public Prosecutions of Canada submits, Crown policies and guidelines do not have the force of law, and cannot themselves be subjected to Charter scrutiny in the abstract: see R. v. Beaudry, 2007 SCC 5 (CanLII), [2007] 1 S.C.R. 190, at para. 45 (discussing police practices manuals).

(b) Tactics and Conduct Before the Court

[57] The second category in the framework for review of Crown activity was referred to in Krieger as “tactics or conduct before the court”: para. 47. As stated in Krieger, “such decisions are governed by the inherent jurisdiction of the court to control its own processes once the Attorney General has elected to enter into that forum” (para. 47).

[58] Superior courts possess inherent jurisdiction to ensure that the machinery of the court functions in an orderly and effective manner: R. v. Cunningham, 2010 SCC 10 (CanLII), [2010] 1 S.C.R. 331, at para. 18; Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43 (CanLII), [2013] 3 S.C.R. 3, at para. 26. Similarly, in order to function as courts of law, statutory courts have implicit powers that derive from the court’s authority to control its own process: Cunningham, at para.18. This jurisdiction includes the power to penalize counsel for ignoring rulings or orders, or for inappropriate behaviour such as tardiness, incivility, abusive cross-examination, improper opening or closing addresses or inappropriate attire. Sanctions may include orders to comply, adjournments, extensions of time, warnings, cost awards, dismissals, and contempt proceedings.

[59] While deference is not owed to counsel who are behaving inappropriately in the courtroom, our adversarial system does accord a high degree of deference to the tactical decisions of counsel. In other words, while courts may sanction the conduct of the litigants, they should generally refrain from interfering with the conduct of the litigation itself. In R. v. S.G.T., 2010 SCC 20 (CanLII), [2010] 1 S.C.R. 688, at paras. 36-37, this Court explained why judges should be very cautious before interfering with tactical decisions:
In an adversarial system of criminal trials, trial judges must, barring exceptional circumstances, defer to the tactical decisions of counsel . . . . [C]ounsel will generally be in a better position to assess the wisdom, in light of their overall trial strategy, of a particular tactical decision than is the trial judge. By contrast, trial judges are expected to be impartial arbiters of the dispute before them; the more a trial judge second-guesses or overrides the decisions of counsel, the greater is the risk that the trial judge will, in either appearance or reality, cease being a neutral arbiter and instead become an advocate for one party

. . . .

The corollary of the preceding is that trial judges should seldom take it upon themselves, let alone be required, to second-guess the tactical decisions of counsel. Of course, trial judges are still required to “make sure that [the trial] remains fair and is conducted in accordance with the relevant laws and the principles of fundamental justice”: Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61 (CanLII), [2002] 3 S.C.R. 209, at para. 68.
[60] Crown counsel is entitled to have a trial strategy and to modify it as the trial unfolds, provided that the modification does not result in unfairness to the accused: Jolivet, at para. 21. Likewise, as this Court recently held in R. v. Auclair, 2014 SCC 6 (CanLII), [2014] 1 S.C.R. 83, a judge may exceptionally override a Crown tactical decision in order to prevent a Charter violation.

[61] Finally, as with all Crown decision making, courtroom tactics or conduct may amount to abuse of process, but abuse of process is not a precondition for judicial intervention as it is for matters of prosecutorial discretion.


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