R. v. Power

R. v. Power
Collection
Supreme Court Judgments
Date
1994-04-14
Report
[1994] 1 SCR 601
Case number
23566
Judges
La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Major, John C.
On appeal from
Newfoundland and Labrador
Subjects
Courts
Criminal law
Notes
SCC Case Information: 23566
Decision Content
R. v. Power, [1994] 1 S.C.R. 601
Her Majesty The Queen Appellant
v.
Eugene Paul Power Respondent
Indexed as: R. v. Power
File No.: 23566.
1993: December 3; 1994: April 14.
Present: La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin and Major JJ.
on appeal from the court of appeal for newfoundland
Courts ‑‑ Residual discretion of appellate court on appeal from acquittal where error at trial reasonably capable of affecting the verdict ‑‑ Criminal Code providing for upholding the acquittal or ordering new trial ‑‑ Charge of impaired driving causing death and injury ‑‑ Proof of impaired driving required to found charge ‑‑ Crown declining to call further evidence when breathalyzer evidence found inadmissible for alleged Charter violation ‑‑ Accused acquitted ‑‑ Evidence found to be wrongly excluded on appeal ‑‑ Court of Appeal upholding acquittal and refusing to order new trial ‑‑ Whether, on a trial by judge and jury, s. 686(4) of the Criminal Code (dealing with the power of courts of appeal on appeals from acquittals either to uphold the acquittal or to order a new trial) includes a residual discretion for a court of appeal to refuse to order a new trial where there was an error at trial which could reasonably have affected the verdict ‑‑ Criminal Code, R.S.C., 1985, c. C-46, s. 686(4) .
Criminal law -- Appeal from acquittal -- Courts ‑‑ Residual discretion of appellate court on appeal from acquittal where error at trial reasonably capable of affecting the verdict ‑‑ Criminal Code providing for upholding the acquittal or ordering new trial ‑‑ Charge of impaired driving causing death and injury ‑‑ Proof of impaired driving required to found charge ‑‑ Crown declining to call further evidence when breathalyzer evidence found inadmissible for alleged Charter violation ‑‑ Accused acquitted ‑‑ Evidence found to be wrongly excluded on appeal ‑‑ Court of Appeal upholding acquittal and refusing to order new trial ‑‑ Whether, on a trial by judge and jury, s. 686(4) of the Criminal Code (dealing with the power of courts of appeal on appeals from acquittals either to uphold the acquittal or to order a new trial) includes a residual discretion for a court of appeal to refuse to order a new trial where there was an error at trial which could reasonably have affected the verdict.
Respondent was charged with impaired driving following a motor vehicle collision where one of his passengers was killed and another two injured. The constable attending at the accident advised respondent of his s. 10 Charter rights to be promptly informed of the reasons for his arrest and to retain and instruct counsel. He then formally demanded a breathalyzer sample from respondent who smelled of alcohol and was staggering. The constable in charge of respondent at the police station inquired as to whether he understood his right to contact counsel and helped him to do so. Both respondent and his lawyer knew that one of the passengers had died at the time of their first telephone consultation. After the consultation, respondent initially refused to provide a breath sample but relented when advised by the police that he would be charged with refusing to provide a sample. The lawyer and respondent consulted again before a second breath sample was taken.
At trial, respondent's lawyer objected to the admission of the results of the breath samples on the ground that the police had violated respondent's s. 10 Charter rights. The trial judge, on a voir dire, concluded respondent's Charter rights had been violated because he had not been made aware of the extent of the jeopardy which he faced before his consultation with his lawyer. He decided that the evidence should be excluded under s. 24(2) of the Charter for its admission would bring the administration of justice into disrepute. Crown counsel declined to call further evidence and the trial judge charged the jury to acquit. The Court of Appeal dismissed an appeal from the acquittal. At issue here was whether, with respect to a verdict on a trial by judge and jury, s. 686(4) of the Criminal Code (which deals with the power of courts of appeal on appeals from acquittals either to uphold the acquittal or to order a new trial) included a residual discretion for a court of appeal to refuse to order a new trial where there was an error at trial which could reasonably have affected the verdict.
Held (Sopinka, Cory and Major JJ. dissenting): The appeal should be allowed.
Per La Forest, L'Heureux‑Dubé, Gonthier and McLachlin JJ.: No abuse of process occurred here. Furthermore, s. 686(4) of the Criminal Code does not confer any discretion on a court of appeal other than the discretion to dismiss or allow an appeal. As a matter of law, principle and policy, the court of appeal is not empowered to inquire into prosecutorial discretion.
In criminal cases, courts have a residual discretion to remedy an abuse of the court's process but only in the "clearest of cases" ‑‑ i.e., conduct which shocks the conscience of the community and is so detrimental to the proper administration of justice that it warrants judicial intervention. The evidence must be overwhelming that the proceedings under scrutiny are unfair to the point that they are contrary to the interest of justice. Since the Attorney General through his or her prosecutorial function expresses the community's sense of justice, the courts should be careful before attempting to "second‑guess" the prosecutor's motives when he or she makes a decision. Where there is conspicuous evidence of improper motives or of bad faith or of an act so wrong that it violates the conscience of the community such that it would genuinely be unfair and indecent to proceed, then, and only then, should courts intervene to prevent an abuse of process which could bring the administration of justice into disrepute. Cases of this nature will be extremely rare.
Here, the conduct of the prosecution did not meet the high threshold required to constitute an abuse of process. There was no evidence that the Crown prosecutor's conduct was prompted by bad faith or an improper motive, nor did the prosecution intend to frustrate the administration of justice or even to circumvent the rules of criminal law regarding interlocutory appeals. Misconduct of such a nature as to shock the community's sense of fairness or to warrant the application of the doctrine of abuse of process was not established by the Crown's decision not to adduce further evidence.
Section 686(4) of the Criminal Code does not confer a court of appeal with any discretion, however limited, beyond the general power to control its process in case of abuse. The jurisprudence does not support such an extension of discretion and no policy consideration warrants such a broad interpretation of s. 686(4) . Quite the contrary. It is contrary not only to the rule of law but also to the good and efficient administration of justice for the courts of appeal to invade the exclusive domain of the Crown and to interfere with prosecutorial discretion. The courts' reluctance to interfere with prosecutorial discretion stems from the doctrine of separation of powers where the criminal law is in the domain of the executive. Further, the judicial review of prosecutorial discretion could involve the Crown's disclosing the reasons underlying its conduct of a case. Such disclosure could generate masses of documents for review, adversely affect the flexibility that derives from prosecutorial confidentiality, and involve the courts in potentially extensive exercises in "second‑guessing" a prosecutor's judgment in order to determine if the reasons behind his or her judgment were merely a subterfuge. The Crown cannot function as a prosecutor before the court while also serving under its general supervision and the court, in turn, cannot both supervise the exercise of prosecutorial discretion and act as an impartial arbitrator of the case presented to it. Even if a discretion to review prosecutorial decisions did exist, the Court of Appeal should have ordered a new trial.
The only evidence which the Court of Appeal could and did assess was the evidence presented at the voir dire and at the preliminary inquiry. It is highly speculative to conjecture about the verdict based on this evidence. Evidence led at a voir dire to establish admissibility does not assist in the determination of the innocence or guilt. It does not touch upon the determination of guilt or innocence but rather deals with facts that have nothing to do with the commission of the offence, such as the means by which the relevant evidence was obtained. On a preliminary hearing, the Crown has the discretion to present only that evidence which makes out a prima facie case. Speculation about the verdict cannot serve as the basis for review of an exercise of prosecutorial discretion that falls short of an abuse of process.
The Court of Appeal should have ordered a new trial on the basis that the excluded evidence was crucial to the Crown's case. Once the breathalyzer evidence was ruled inadmissible, any further evidence that might have been led would not necessarily have assisted the Crown in proving that the respondent's ability to drive was in fact impaired. Without the breathalyzer evidence, the Crown in all probability would have been unable to prove beyond a reasonable doubt that respondent's ability to drive was impaired. This element is crucial in cases of impaired driving causing death or bodily harm. Furthermore, this evidence was of the utmost importance because it seemed that the respondent was raising alternative causes for the accident, such as road and weather conditions and the mechanical repair of the car.
Per Sopinka, Cory and Major JJ. (dissenting): Although s. 686(4) of the Criminal Code does not specify the grounds upon which a Crown appeal from acquittal may be taken, s. 676(1) (a) provides that an appeal lies from an acquittal on any ground that involves a question of law alone. Their combined effect is that the Court of Appeal "may" allow the appeal. This confers a discretion on the court which is not statutorily defined. The Crown, notwithstanding an error of law, has the obligation of satisfying the Court of Appeal that the verdict would not necessarily have been the same absent the error.
Cases where the Crown calls all of its evidence can arguably differ from those where the Crown deliberately chooses to bring about a directed verdict by not calling available evidence. The test in Vézeau v. The Queen for the exercise of the discretion conferred by s. 686(4) does not exhaust the definition of that discretion so as to preclude the Court, in appropriate circumstances, from adding to or qualifying the application of that test. Jurisprudence supports a limited discretion on the part of the Court of Appeal to decline to allow an appeal in some circumstances where the Crown unreasonably shuts down its case with the result that a verdict of acquittal is directed. Apart from the capacity to stay for abuse of process, an appellate court is entitled to consider whether the Crown has acted unreasonably in refusing to call further evidence at trial because of an adverse evidentiary ruling and can refuse to order a new trial in such circumstances. The threshold requirement is that, apart from the evidence excluded, the Crown's case was sufficient to be put to the jury. This threshold is met when the Crown's remaining evidence meets the essential elements of the offence, but the Crown chooses not to call that evidence. The final determination will depend upon a weighing of other factors, including the relative strength of the evidence not called, the relative importance of the evidence excluded by the impugned ruling, the degree of prejudice which further proceedings present to the accused and the reasons for the decision of the Crown not to call further evidence.
As a general rule a decision to shut down the Crown's case simply to appeal an adverse ruling will be held to be unreasonable. On the other hand, where the evidence which has been excluded is relatively important and the remaining evidence, although perhaps sufficient to make out a prima facie case, is so weak that the prosecutor concludes that continuing with the trial is a waste of time, a decision to terminate the proceedings may be reasonable. Any special prejudice over and above prejudice that can be inferred from any prolongation of criminal proceedings will be, if proved, an important factor to be weighed by the Court of Appeal. This discretion must be exercised sparingly.
In considering the other evidence which the appellant decided not to call, it is necessary to identify the elements of the offence in question and to consider whether the other evidence was sufficient to warrant putting the appellant's case to the jury. In reaching this determination, the test to be applied is whether the other evidence, "if believed by a properly charged jury acting reasonably, would justify a conviction". Here, to substantiate its case, the appellant would have to demonstrate that: (i) the respondent was operating the vehicle in question; (ii) the respondent's ability to drive was impaired by alcohol; and, (iii) the impaired driving ability of the respondent caused the deaths and bodily harm which occurred.
The eye witnesses provided ample evidence of respondent's driving and could testify to a number of factors sufficient to establish his impaired state without resort to breathalyzer evidence. The Crown, to prove causation, had to adduce sufficient evidence to demonstrate respondent's impairment was at least a contributing cause of death and injury, outside the de minimis range. The issue of causation requires consideration of competing theories as to the explanation for occurrence of the accident which resulted in injury and death. Impairment need not be shown to be the sole cause in order to convict, since it may well be that, even though a combination of factors was involved, impairment was still more than a de minimis cause of the death and injury which occurred. Here, the additional evidence of impairment lent to the case by the breathalyzer would not have had a significant effect on the role played by road conditions and mechanical disrepair, nor was it essential to establishing the respondent's impairment.
Cases Cited
By L'Heureux‑Dubé J.
Considered: R. v. Jewitt, [1985] 2 S.C.R. 128; referred to: R. v. Leroux (1928), 50 C.C.C. 52; R. v. Bell (1929), 51 C.C.C. 388; R. v. Leclair (1956), 115 C.C.C. 297; Connelly v. Director of Public Prosecutions, [1964] 2 All E.R. 401; R. v. Osborn, [1971] S.C.R. 184, aff'g (1968), 4 C.C.C. 185; Rourke v. The Queen, [1978] 1 S.C.R. 1021; Director of Public Prosecutions v. Humphrys, [1976] 2 All E.R. 497; Erven v. The Queen, [1979] 1 S.C.R. 926; R. v. Krannenburg, [1980] 1 S.C.R. 1053; Amato v. The Queen, [1982] 2 S.C.R. 418; R. v. Lebrun (1978), 7 C.R. (3d) 93; Re Ball and The Queen (1978), 44 C.C.C. (2d) 532; Re Abarca and The Queen (1980), 57 C.C.C. (2d) 410; R. v. Young (1984), 40 C.R. (3d) 289; R. v. Keyowski, [1988] 1 S.C.R. 657; R. v. Mack, [1988] 2 S.C.R. 903; R. v. Conway, [1989] 1 S.C.R. 1659; R. v. Scott, [1990] 3 S.C.R. 979; R. v. Potvin, [1993] 2 S.C.R. 880; Vézeau v. The Queen, [1977] 2 S.C.R. 277; R. v. Banas and Haverkamp (1982), 65 C.C.C. (2d) 224; R. v. Voykin (1986), 29 C.C.C. (3d) 280; R. v. Bailey (1983), 4 C.C.C. (3d) 21; R. v. Whittle (1992), 78 C.C.C. (3d) 49; Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455; Sobeys Stores Ltd. v. Yeomans and Labour Standards Tribunal (N.S.), [1989] 1 S.C.R. 238; Beauregard v. Canada, [1986] 2 S.C.R. 56; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; Re Balderstone and The Queen (1983), 8 C.C.C. (3d) 532, leave to appeal refused, [1983] 2 S.C.R. v; R. v. Beare, [1988] 2 S.C.R. 387; United States of America v. Cotroni, [1989] 1 S.C.R. 1469; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Verrette, [1978] 2 S.C.R. 838; Smythe v. The Queen, [1971] S.C.R. 680; R. v. T. (V.), [1992] 1 S.C.R. 749; United States v. Redondo‑Lemos, 955 F.2d 1296 (1992); United States v. Giannattasio, 979 F.2d 98 (1992); Welch v. The King, [1950] S.C.R. 412; Caccamo v. The Queen, [1976] 1 S.C.R. 786; Patterson v. The Queen, [1970] S.C.R. 409.
By Sopinka J. (dissenting)
R. v. Smith, [1991] 1 S.C.R. 714; R. v. Banas and Haverkamp (1982), 65 C.C.C. (2d) 224; R. v. Voykin (1986), 29 C.C.C. (3d) 280; R. v. Mack, [1988] 2 S.C.R. 903; R. v. Jewitt, [1985] 2 S.C.R. 128; R. v. Bailey (1983), 4 C.C.C. (3d) 21; R. v. Keyowski, [1988] 1 S.C.R. 657; Vézeau v. The Queen, [1977] 2 S.C.R. 277; White v. The King, [1947] S.C.R. 268; R. v. Paquette (1974), 19 C.C.C. (2d) 154; R. v. Morin, [1988] 2 S.C.R. 345; R. v. Potvin, [1993] 2 S.C.R. 880; R. v. Collins (1993), 79 C.C.C. 204; R. v. Whittle (1992), 78 C.C.C. (3d) 49; R. v. Monteleone, [1987] 2 S.C.R. 154; R. v. Smith (1992), 73 C.C.C. (3d) 285; R. v. Andres, [1982] 2 W.W.R. 249; Graat v. The Queen, [1982] 2 S.C.R. 819; R. v. Dubois (1990), 62 C.C.C. (3d) 90; R. v. Kucher (1979), 48 C.C.C. (2d) 115; R. v. Pinske (1988), 30 B.C.L.R. (2d) 114, aff'd [1989] 2 S.C.R. 979; R. v. Morin, [1992] 1 S.C.R. 771.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 10 (a), (b), 24(2) .
Constitution Act, 1867 .
Criminal Code, R.S.C., 1985, c. C‑46, ss. 255(2) [rep. & sub. R.S.C., 1985, c. 27 (1st Supp.), s. 36], (3) [rep. & sub. idem], 676(1)(a), 686(1)(b)(iii), (4)(a), (b)(i), (ii) [rep. & sub. ibid., s. 145(3) ].
Authors Cited
Frase, Richard S. "The Decision to File Federal Criminal Charges: A Quantitative Study of Prosecutorial Discretion" (1979-1980), 47 U. Chi. L. Rev. 246.
Garant, Patrice. Droit administratif, 3e éd., vol. 2. Cowansville, Qué.: Yvon Blais, 1991.
Hébert, Jean-Claude. "Le contrôle judiciaire de certains pouvoirs de la couronne", dans Droit pénal‑-Orientations nouvelles. Formation permanente, Barreau du Québec. Cowansville, Qué.: Yvon Blais, 1987, 129.
Hogg, Peter W. Constitutional Law of Canada, 3rd ed. Scarborough, Ont.: Carswell, 1992.
Lezak, Sidney I. and Maureen Leonard. "The Prosecutor's Discretion: Out of the Closet ‑‑ Not Out of Control" (1984), 63 Or. L. Rev. 247.
Morgan, Donna C. "Controlling Prosecutorial Powers ‑- Judicial Review, Abuse of Process and Section 7 of The Charter " (1986‑87), 29 Crim. L.Q. 15.
Pépin, Gilles. "La compétence des tribunaux administratifs de décider de la constitutionnalité d'une loi, notamment de sa compatibilité avec la Charte canadienne des droits et libertés ", in Canadian Bar Association ‑ Continuing Legal Education Seminar on Administrative Law, Administrative Law: Past Present and Future Where We've Been. Ottawa: 1989.
Ramsay, J. A. "Prosecutorial Discretion: A Reply to David Vanek" (1987‑88), 30 Crim. L.Q. 378.
Reiss, Steven Alan. "Prosecutorial Intent in Constitutional Criminal Procedure" (1987), 135 U. Pa. L. Rev. 1365.
Temby, Ian. "Prosecution Discretions and the Director of Public Prosecutions Act 1983" (1985), 59 Austl. L.J. 197.
Vanek, David. "Prosecutorial Discretion" (1987‑88), 30 Crim. L.Q. 219.
APPEAL from a judgment of the Newfoundland Court of Appeal (1993), 105 Nfld. & P.E.I.R. 271, 331 A.P.R. 271, 81 C.C.C. (3d) 1, 45 M.V.R. (2d) 214, dismissing an appeal from acquittal by Aylward J. sitting with jury. Appeal allowed, Sopinka, Cory and Major JJ. dissenting.
Wayne Gorman, for the appellant.
David Orr, for the respondent.
The judgment of La Forest, L'Heureux-Dubé, Gonthier and McLachlin JJ. was delivered by
L'HEUREUX-DUBÉ J. -- This appeal concerns the interpretation and application of s. 686(4) of the Criminal Code, R.S.C., 1985, c. C-46 , to the facts of the case. The sole issue is whether the Court of Appeal erred in entering a verdict of acquittal instead of ordering a new trial for the respondent after it concluded that the trial judge had committed an error of law in excluding breathalyzer evidence which was admissible.
The majority of the Court of Appeal, Goodridge C.J. dissenting, dismissed the Crown's appeal of respondent's acquittal on the ground that there had been an abuse of process in that, instead of proceeding with the trial, the Crown, unreasonably in their view, declined to call further evidence which resulted in the acquittal of respondent on all counts. My colleague, Justice Sopinka, while declining to dismiss the appeal on that ground, would do so "on the ground that the court of appeal has a limited discretion to dismiss an appeal in such circumstances and that this was a proper case for its exercise" (p. 635). I respectfully disagree.
I share the view expressed by Goodridge C.J. in dissent that no abuse of process occurred in the present case. Furthermore, I cannot agree with my colleague that s. 686(4) of the Code confers any discretion on a court of appeal other than the discretion to dismiss or allow an appeal. In particular, I cannot agree, as a matter of law, principle and policy, that a court of appeal is empowered to inquire into prosecutorial discretion.
Section 686(4) of the Criminal Code reads as follows:
686. . . .
(4) Where an appeal is from an acquittal, the court of appeal
may
(a) dismiss the appeal; or
(b) allow the appeal, set aside the verdict and
(i) order a new trial, or
(ii) except where the verdict is that of a court composed of a judge and jury, enter a verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law, and pass a sentence that is warranted in law, or remit the matter to the trial court and direct the trial court to impose a sentence that is warranted in law.
My colleague has summarized the facts and the judgments which relieves me of the necessity of dealing with them at length. Suffice it to say that, on April 20, 1989, a car driven by the respondent was involved in an accident in which one of his passengers died and two others were injured. The respondent was charged with one count of impaired driving causing death and two counts of impaired driving causing bodily harm. At trial, the breathalyzer evidence, which was the most probative evidence tendered by the Crown, was found to have been obtained in breach of the respondent's right to counsel in s. 10 (b) of the Canadian Charter of Rights and Freedoms . As such, the evidence was declared inadmissible and was excluded. The Crown elected to call no further evidence and the respondent was, consequently, acquitted. The Court of Appeal, having found no Charter breach, held that the evidence was admissible as a matter of law. While such an appeal would normally be allowed and a new trial ordered according to s. 686(4) of the Criminal Code , the Court entered a verdict of acquittal on the basis that there had been an abuse of process by the Crown.
At the outset, it is important to note that the Court of Appeal was unanimous in holding that the trial judge had erred in excluding the properly admissible breathalyzer evidence. This is no longer an issue before us. As to the discretion of a court of appeal in Crown's appeals under s. 686(4) of the Criminal Code , the Court of Appeal was also unanimous in holding that s. 686(4) does not oust courts' power to sanction an abuse of process. Beyond that, I share Goodridge C.J.'s affirmation for the reasons he exposes (1993), 105 Nfld. & P.E.I.R. 271, at p. 305, that:
... the Court of Appeal must either dismiss the appeal or allow the appeal and set aside the verdict, and, if it allows the appeal and sets aside the verdict, it must either order a new trial or, unless the verdict appealed from is that of a jury, enter the verdict which should have been entered at trial. [Emphasis added.]
I will discuss the following issues in turn:
1. The Abuse of Process;
2. The Discretion under s. 686(4) of the Criminal Code ;
3. Prosecutorial Discretion.
1. Abuse of Process
Although it is today undisputed that courts have an inherent and residual discretion to prevent an abuse of the court's process, this was not always the case. For a long period of time, authority for such a proposition was sparse and was generally made in obiter dicta. (See R. v. Leroux (1928), 50 C.C.C. 52 (Ont. C.A.), at pp. 56-57, per Grant J.A. for the court, R. v. Bell (1929), 51 C.C.C. 388 (B.C.C.A.), at pp. 391-92, per Macdonald C.J.A., and R. v. Leclair (1956), 115 C.C.C. 297 (Ont. C.A.), at pp. 302-3, per Mackay J.A. for the court.)
In R. v. Osborn (1968), 4 C.C.C. 185, Jessup J.A., writing for the Ontario Court of Appeal, relied on the majority decision of the House of Lords in Connelly v. Director of Public Prosecutions, [1964] 2 All E.R. 401, to hold that every court, regardless of whether it exercises civil or criminal jurisdiction, has an inherent discretionary power to prevent an abuse of process through oppressive or vexatious proceedings. He cautioned, however, that such discretion should be exercised sparingly and only in exceptional circumstances (at pp. 189-91). On appeal before our Court (R. v. Osborn, [1971] S.C.R. 184), three justices (Pigeon J., Martland and Judson JJ. concurring) held that no such discretion existed, three (Hall J., Ritchie and Spence JJ. concurring) held that it was not necessary to decide the question and the seventh, Fauteux J. (as he then was), simply concurred in the result, which left the state of the law in doubt.
The issue was again raised in Rourke v. The Queen, [1978] 1 S.C.R. 1021, where the alleged abuse of process stemmed from a lengthy delay on the part of the police before arresting the accused. Pigeon J., writing for the majority, concluded at p. 1043:
For the reasons I gave in The Queen v. Osborn, [1971] S.C.R. 184, I cannot admit of any general discretionary power in courts of criminal jurisdiction to stay proceedings regularly instituted because the prosecution is considered oppressive.
The minority, per Laskin C.J., concurring in the result, following Connelly v. Director of Public Prosecutions, supra, and Director of Public Prosecutions v. Humphrys, [1976] 2 All E.R. 497 (H.L.), would have recognized that criminal trial courts have an inherent jurisdiction to prevent abuse of their process, keyed to particular situations. Subsequent decisions of this Court have alluded in obiter dicta to the existence of a doctrine of abuse of process (Erven v. The Queen, [1979] 1 S.C.R. 926, at p. 957 (per Pratte J.), R. v. Krannenburg, [1980] 1 S.C.R. 1053, at p. 1061 (per Dickson J.), and Amato v. The Queen, [1982] 2 S.C.R. 418, at pp. 454-55 (per Estey J.)). In the wake of Rourke, supra, provincial appellate courts divided on the issue. Some applied Rourke, supra, and held that the doctrine of abuse of process was not available in criminal proceedings (R. v. Lebrun (1978), 7 C.R. (3d) 93 (B.C.C.A.)). Others applied the doctrine but restricted it to exceptional circumstances (Re Ball and The Queen (1978), 44 C.C.C. (2d) 532 (Ont. C.A.), Re Abarca and The Queen (1980), 57 C.C.C. (2d) 410 (Ont. C.A.), and R. v. Young (1984), 40 C.R. (3d) 289 (Ont. C.A.)). R. v. Jewitt, [1985] 2 S.C.R. 128, put an end to the controversy by unanimously affirming the availability of the doctrine of abuse of process in criminal proceedings. The Court, at pp. 136-37, borrowed the comments of Dubin J.A. in R. v. Young, supra, that a stay of proceedings 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". The Court also adopted, at p. 137, "the caveat added by the [Ontario] Court [of Appeal] in Young that this is a power which can be exercised only in the `clearest of cases'". Dickson C.J., at pp. 132-33, reproduced in part the following comments of Viscount Dilhorne of the House of Lords in Director of Public Prosecutions v. Humphrys, supra, at p. 509 and p. 511:
Where an indictment has been properly preferred . . . has a judge power to quash it and to decline to allow the trial to proceed merely because he thinks that a prosecution of the accused for that offence should not have been instituted? I think there is no such general power and that to recognise the existence of such a degree of omnipotence is, as my noble and learned friend, Lord Edmund‑Davies, has said, unacceptable in any country acknowledging the rule of law. But saying this does not mean that there is not a general power to control the procedure of a court so as to avoid unfairness. If at the time of Connelly it had been possible to try the murder and robbery charges together, then it might well have been held unfair, oppressive and an abuse of process for them to be tried separately, each charge being based on the same evidence. But that is very different from saying that a judge has power to stop a prosecution for perjury just because he thinks it should not have been brought and that it will show that the verdict at the trial at which it is alleged the perjury was committed should have been guilty.
. . .
If there is the power which my noble and learned friends think there is to stop a prosecution on indictment in limine, it is in my view a power that should only be exercised in the most exceptional circumstances. [Emphasis added.]
In R. v. Keyowski, [1988] 1 S.C.R. 657, the Court unanimously reaffirmed the principle enunciated in R. v. Jewitt, supra. While she held that a stay of proceedings for abuse of process was not limited to cases where there is evidence of prosecutorial misconduct, Wilson J. for the Court, at p. 659, was careful to point out that the remedy will only be granted in the "clearest of cases". In R. v. Mack, [1988] 2 S.C.R. 903, a stay of proceedings was entered on the basis that (per Lamer J., at p. 939) "in criminal law the doctrine of abuse of process draws on the notion that the state is limited in the way it may deal with its citizens". In R. v. Conway, [1989] 1 S.C.R. 1659, writing for the majority, I expressed the following view, at p. 1667:
Under the doctrine of abuse of process, the unfair or oppressive treatment of an appellant disentitles the Crown to carry on with the prosecution of the charge. The prosecution is set aside, not on the merits (see Jewitt, supra, at p. 148), but because it is tainted to such a degree that to allow it to proceed would tarnish the integrity of the court. 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" (Rothman v. The Queen, [1981] 1 S.C.R. 640, at p. 689, per Lamer J.) 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. [Emphasis added.]
I added, however, on the same page, that a stay of proceedings for abuse of process will only be granted in the "clearest of cases". This was reiterated in R. v. Scott, [1990] 3 S.C.R. 979, per Cory J. See also R. v. Potvin, [1993] 2 S.C.R. 880.
I, therefore, conclude that, in criminal cases, courts have a residual discretion to remedy an abuse of the court's process but only in the "clearest of cases", which, in my view, amounts to conduct which shocks the conscience of the community and is so detrimental to the proper administration of justice that it warrants judicial intervention.
To conclude that the situation "is tainted to such a degree" and that it amounts to one of the "clearest of cases", as the abuse of process has been characterized by the jurisprudence, requires overwhelming evidence that the proceedings under scrutiny are unfair to the point that they are contrary to the interest of justice. As will be developed in more detail further in these reasons, the Attorney General is a member of the executive and as such reflects, through his or her prosecutorial function, the interest of the community to see that justice is properly done. The Attorney General's role in this regard is not only to protect the public, but also to honour and express the community's sense of justice. Accordingly, courts should be careful before they attempt to "second‑guess" the prosecutor's motives when he or she makes a decision. Where there is conspicuous evidence of improper motives or of bad faith or of an act so wrong that it violates the conscience of the community, such that it would genuinely be unfair and indecent to proceed, then, and only then, should courts intervene to prevent an abuse of process which could bring the administration of justice into disrepute. Cases of this nature will be extremely rare.
Applying this test to the facts of this case, it is evident that in no way did the conduct of the prosecution meet the high threshold required to constitute an abuse of process. There is not one iota of evidence that the Crown prosecutor's conduct was prompted by bad faith or an improper motive, a fact recognized by Cameron J.A., nor did the prosecution intend to frustrate the administration of justice or even to circumvent the rules of criminal law regarding interlocutory appeals contrary to what Marshall J.A. suggests. I agree with Cameron J.A. when she writes at p. 290:
Counsel for the respondent, in oral submission, argued that this appeal is tantamount to an interlocutory appeal. I do not accept that submission. This is not a request, before verdict, for a determination of the correctness of a ruling so that a party may adjust the presentation of its case in light of the decision. Had the trial judge been upheld by this court, the Crown would not have been able to then proceed with the trial.
Goodridge C.J., for his part, wrote, at p. 306:
If the power to order a new trial is discretionary, upon what basis is a new trial to be denied the Crown in a successful appeal from acquittal. Logically the only basis upon which a new trial could be denied is if the ordering of a new trial would be an abuse of process.
After citing Wilson J. in R. v. Keyowski, supra, Goodridge C.J. continued:
The test for granting a stay is whether "compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency". If the court has power to deny a new trial in a case such as this, the test should be the same.
And further at p. 307:
The respondent should not be heard to complain unless the decision made by Crown counsel was so clearly wrong as to render what would amount to a delayed guilty verdict an abuse of process and, as earlier said, that position is one that should be taken at trial and not on appeal.
I agree with Goodridge C.J. that no abuse of process has been demonstrated here.
That the Crown prosecutor may have acted precipitously or may have exercised poor judgment in deciding not to adduce further evidence, even if true, fails to establish misconduct of such a nature as to shock the community's sense of fairness or to warrant the application of the doctrine of abuse of process.
Moreover, Sopinka J.'s assertion that this case is a borderline case, and the test of reasonableness which he applies, only confirm the unavailability of the doctrine of abuse of process. In applying that doctrine here, the majority of the Court of Appeal was, in my view, in error.
That being said, over and above the doctrine of abuse of process which permeates the whole of the criminal process, does s. 686(4) of the Criminal Code confer a discretion on an appellate court other than that to allow or dismiss a Crown's appeal when it concludes that there was a reversible error in the trial court? It is to this question that I now turn.
2. The Discretion under s. 686(4) of the Criminal Code
Although my colleague agrees with the Crown that the test set out in Vézeau v. The Queen, [1977] 2 S.C.R. 277, may not be appropriate in a Crown appeal from a directed verdict of acquittal by reason of no evidence, he goes on to say that Vézeau, supra, did not purport to exhaust the discretion conferred by s. 686(4) . In his opinion, at p. 646, "there is support in our jurisprudence for a limited discretion on the part of the Court of Appeal to decline to allow an appeal in some circumstances in which the Crown unreasonably shuts down its case with the result that a verdict of acquittal is directed". I respectfully disagree.
My colleague relies on R. v. Banas and Haverkamp (1982), 65 C.C.C. (2d) 224 (Ont. C.A.), R. v. Voykin (1986), 29 C.C.C. (3d) 280 (Alta. C.A.), and R. v. Bailey (1983), 4 C.C.C. (3d) 21 (Ont. C.A.). As Goodridge C.J. pointed out, at p. 304, all of those cases "seem to have involved a situation where new trials were ordered because the successful appeals from acquittal occurred in cases where critical evidence had been ruled inadmissible". In Bailey, supra, which purported to follow Banas, the circumstances were such that there did not seem to be anything in the record to indicate that the evidence ruled inadmissible was critical. My colleague Sopinka J. also relied on R. v. Whittle (1992), 78 C.C.C. (3d) 49 (Ont. C.A.). As this case is on appeal before us, I prefer not to comment on it.
However, had the conduct of the Crown in those cases been such that a stay of proceedings would have been warranted, as Martin J.A. seems to infer in his obiter dicta in Banas, supra, it might very well be that the Court would have found an abuse of process. It may well be that a Court of Appeal might find an abuse of process in a case where the Crown refuses to continue a trial, despite sufficient evidence to found a verdict, for the sole purpose of obtaining an interlocutory appeal on an adverse ruling. Such an appeal would not be available to the accused in the parallel situation, and the accused would be forced to undergo an unnecessary second trial. As such, a case might be made that the Crown's conduct constitutes an unfair and abusive exercise of the prosecutorial discretion conferred upon it.
None of those cases relied on by my colleague Sopinka J., in my view, supports the proposition that s. 686(4) provides for a limited discretion in a court of appeal other than the general discretion of courts to control their process and prevent its abuse.
Furthermore, there is no policy consideration that warrants such a broad interpretation of s. 686(4) of the Criminal Code . My colleague does not mention any, nor do the parties. Quite the contrary, an efficient administration of justice warrants that courts not meddle in a trial within a trial, base their finding on pure speculation and second-guess the prosecution.
In holding that under s. 686(4) of the Code an appellate court is entitled to consider whether the Crown has acted unreasonably, my colleague invites the courts of appeal to invade the exclusive domain of the Crown and to interfere with prosecutorial discretion, as well as to foster rulings based on pure speculation as to what might have happened had the prosecution chosen a different path. This, in my view, is not only impermissible and contrary to the rule of law but also contrary to the interest in a good and efficient administration of justice.
For these reasons, I am of the view that s. 686(4) of the Criminal Code does not confer a court of appeal any discretion, however limited, be