R. v. Keyowski

Wilson J.‑‑The issue in this appeal is whether the appellant Keyowski should stand trial for a third time on a charge of criminal negligence causing death. His first two trials ended with the jury failing to agree on a verdict. A third trial was stayed by the trial judge on the grounds that it would constitute both an abuse of process and a violation of s. 7 of the Canadian Charter of Rights and Freedoms . The Crown's appeal was allowed by a majority of the Saskatchewan Court of Appeal ((1986), 49 Sask. R. 64) and a new trial ordered. Bayda C.J.S. dissented. This is an appeal as of right.

The availability of a stay of proceedings to remedy an abuse of process was confirmed by this Court in R. v. Jewitt, [1985] 2 S.C.R. 128. On that occasion the Court stated that the test for abuse of process was that initially formulated by the Ontario Court of Appeal in R. v. Young (1984), 40 C.R. (3d) 289. 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" ([1985] 2 S.C.R. at pp. 136‑37). The Court in Jewitt also adopted "the caveat added by the Court in Young that this is a power which can be exercised only in the `clearest of cases'" (p. 137).

The legal issue on the appeal is a very narrow one, namely whether a series of trials could per se constitute an abuse of process or whether it is necessary for the accused to show prosecutorial misconduct. The majority of the Court of Appeal expressed the view that the accused had to establish prosecutorial misconduct. Vancise J.A., writing for the majority, stated at p. 68:

In the absence of evidence that the legal officers of the Crown were guilty of prosecutorial misconduct or proceeded for [sic] some ulterior motive, in short that the proceedings were oppressive, the continuation of the trial on the indictment is not an abuse of process.

To define "oppressive" as requiring misconduct or an improper motive would, in my view, unduly restrict the operation of the doctrine. In this case, for example, where there is no suggestion of misconduct, such a definition would prevent any limit being placed on the number of trials that could take place. Prosecutorial misconduct and improper motivation are but two of many factors to be taken into account when a court is called upon to consider whether or not in a particular case the Crown's exercise of its discretion to re‑lay the indictment amounts to an abuse of process.

While I disagree with the majority of the Court of Appeal that prosecutorial misconduct must be demonstrated in order to give rise to an abuse of process, I nevertheless agree with their conclusion that a new trial was properly ordered in this case. The appellant has, in my view, failed to demonstrate that this is one of those "clearest of cases" which would justify a stay. The charge is a serious one. The proceedings have not occupied an undue amount of time. The accused has not been held in custody, and, while he has undoubtedly suffered substantial trauma and stigma from the proceedings and the attendant publicity, he is probably not distinguishable in this respect from the vast majority of accused. A third trial may, indeed, stretch the limits of the community's sense of fair play but does not of itself exceed them. In these circumstances, and having regard to the seriousness of the charge, I think that the administration of justice is best served by allowing the Crown to proceed with the new trial.

A brief comment on s. 7 of the Charter . The parties to this appeal were agreed that the common law doctrine of abuse of process was now subsumed in s. 7. The trial judge accepted this proposition as did all the members of the Court of Appeal although in neither of the courts below was there much analysis of the relationship between the two. Bayda C.J.S., however, noted, at pp. 74‑75, what he saw as a potential difference in onus:

Counsel for the Attorney General conceded‑‑and rightly so‑‑that if the circumstances of the present case justly give rise to a finding of an abuse of process, they would automatically give rise to a finding of violation of s. 7. The converse should also be true but for the matter of onus. Had this case been decided on the basis of s. 7, it would have been sufficient for the accused to prove on the balance of probabilities a violation of "the principles of fundamental justice" as that phrase is used in s. 7 . . . . By deciding the case on the basis of "abuse of process", it would appear necessary to apply the "clearest of cases" onus (the Young‑Jewitt test) in determining whether that same violation of "the principles of fundamental justice" occurred. I am unable to give a valid explanation for the distinction in onus. [Emphasis in original.]

Despite the references to s. 7 in the judgments below, counsel before this Court did not address the s. 7 issue in either written or oral argument. For that reason I would prefer to leave the issue of the relationship between s. 7 and the common law doctrine of abuse of process to another day.

I would dismiss the appeal.