Abuse of Process and Judicial Stays of Criminal Proceedings

By Andrew L.-T. Choo | Go to book overview

1
The Abuse of Process Discretion and Criminal Justice

In this monograph, the power of a court to stay proceedings which are an 'abuse of the process of the court' will be generally referred to, for convenience, as the abuse of process discretion. The chief concern of this work is with the operation of the discretion in criminal cases. It seeks to identify and evaluate the situations in which criminal prosecutions may be stayed. To put it more simply, what is it that makes a criminal prosecution an abuse of process and hence liable to be stayed? On occasion, valiant attempts have been made by judges to engage in theoretical discussion of the meaning of 'abuse of process'. Consider, for example, the following two statements made in the Supreme Court of Canada:

A stay should be granted where 'compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency'. . . or where the proceedings are 'oppressive or vexatious'. . .1 The doctrine is one of the safeguards designed to ensure 'that the repression of crime through the conviction of the guilty is done in a way which reflects our fundamental values as a society'. . . It acknowledges that courts must have the respect and support of the community in order that the administration of criminal justice may properly fulfil its function. Consequently, where the affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases, then the administration of justice is best served by staying the proceedings.2

However, such formulations when examined closely do not prove particularly helpful. What are these fundamental principles of justice and fundamental values? What precisely do the terms oppressiveness and vexatiousness mean in this context? And what are these concepts of fair play and decency? Such high-sounding phrases may highlight the paramountcy and fundamentality of the abuse of process discretion, but they do not take us much further than the phrase 'abuse of process' itself. It is, therefore, the aim of this study to provide a clearer explanation and rationalization of the discretion, and, in doing so, to put forward some proposals as to how the English law in the area might be reformed.

____________________
1
Keyowski v. R. ( 1988) 62 CR (3d) 349, 350 per Wilson J..
2
R. v. Conway ( 1989) 70 CR (3d) 209, 222-3 per L'Heureux-Dubé J..

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Abuse of Process and Judicial Stays of Criminal Proceedings
Table of contents

Table of contents

  • Title Page iii
  • General Editor's Introduction vii
  • Preface ix
  • Addendum xi
  • Contents xiii
  • Table of Cases xv
  • Table of Statutory Material xxix
  • 1 - The Abuse of Process Discretion and Criminal Justice 1
  • 2 - Prosecutorial Manipulation or Misuse of Process 16
  • 3 - Delay 47
  • 4 - Police Impropriety at the Investigatory Stage 78
  • 5 - Procedural Issues 119
  • 6 - Entrapment 148
  • 7 - Conclusion: Rationalization and Reform 182
  • Bibliography 188
  • Index 205
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