There are two well-recognized categories of abuse of process. The first, and more common, category is engaged by prosecutorial conduct affecting the fairness of the trial; the second, the residual category, is engaged by prosecutorial conduct that contravenes fundamental notions of justice and undermines the integrity of the judicial process.

       R. v. Nixon, 2011 SCC 34, 2 S.C.R., at para. 36;

       R. v. O’Connor, 1995 CanLII 51.

Abuses of process within the residual category tend to involve Charter violations and conduct that is likely to be perpetuated into the future.

In R v. Simonelli, 2021 ONSC 354 (CanLII), the accuseds brought applications to stay the proceedings under Section 24(1) of the Canadian Charter of Rights and Freedoms for abuse of process.  They claimed that the twelve days from their arrests to their special bail hearing [FN1] constituted an abuse of process falling within the “residual” category of that common law doctrine.  Typically bail hearings occur within 24 hours of arrest. [FN2]

Beyond the delay particular to them, the Applicants in Simonelli established that there were ongoing systemic bail delay problems within the jurisdiction (Brampton, Ontario).  The 12 day pre-trial custody period the Applicants endured was a clear violation of 11(e) of the Canadian Charter of Rights and Freedoms–the right not to be denied reasonable bail without just cause–but did the delay also amount to an abuse of process? Yes.

The Court concluded that the bail delays the Applicants had experienced were part of a serious unaddressed systemic problem with no end in sight, “a blot on the administration of justice” (para. 141).

Stay of Proceedings

A stay of proceedings is a prospective rather than a retroactive remedy. It does not merely redress a past wrong. It aims to prevent the perpetuation of a wrong that, if left alone, will continue to trouble the parties and the community as a whole, in the future.

A stay of proceedings is one of the most drastic remedies a criminal court can order.  It permanently halts the prosecution of an accused. As such it is a remedy of last resort.

If of sufficient gravity, systemic problems impugning the efficiency and ultimately the integrity of the bail process may justify a stay of proceedings.  The proposed remedy of a stay can be imposed only in the clearest of cases where the need to uphold the integrity of the system outweighs the public importance of the prosecution (para. 4).  These were such circumstances.

As the Court forcefully expressed, “Pervasive, substantial delays in adjudicating on the accused’s liberty after arrest, a vital judicial function, lie very high on the scale of egregiousness. A system that cannot provide an accused with the basic entitlement of a bail hearing with reasonable promptitude is broken on the most fundamental level” (para. 141).

All charges stayed for abuse of process.

Stuart O’Connell (Barrister/Solicitor)

[FN1] See Criminal Code, section 503 (1).

[FN] Special bail hearings is a term used to refer to bail hearings requiring longer than 2 hours to complete.