Abuse of Process in Criminal Law: When Charges Can Be Stayed

In Canadian criminal law, courts have the power to stop a prosecution where continuing would be fundamentally unfair. This is known as an ‘abuse of process’.

The doctrine exists to protect both the accused’s right to a fair trial and the integrity of the justice system. In the most serious cases, a judge can order a stay of proceedings—bringing the prosecution to an end.

The Supreme Court of Canada has set out a three-part framework for determining whether abuse of process exists. First, there must be prejudice to trial fairness or the integrity of the justice system. Second, there must be no other remedy capable of addressing that prejudice.

Third, the court balances society’s interest in a fair justice system against the interest in having the case decided on its merits.

Abuse of process can arise in different ways. Some cases involve conduct that affects trial fairness, such as failures in disclosure. Others involve conduct that undermines public confidence in the justice system, even if trial fairness is not directly impacted.

Examples can include the destruction of evidence, failure to disclose important information, or improper conduct by state actors. However, not every error or illegality will meet the threshold.

A stay of proceedings is considered the most extreme remedy and is reserved for the clearest cases. Courts will often look for less drastic solutions, such as excluding evidence or providing jury instructions, before taking that step.

If you believe your rights have been compromised in a criminal case, an experienced defence lawyer can assess whether an abuse of process argument may apply.