Abuse of Process

R v Breeze

[1993] O.J. No. 850

R. v. Breeze

[1993] O.J. No. 850
Ontario Court of Justice - Provincial Division — Zabel Prov. Div. J. | March 4, 1993

Background

Bonnie Breeze was charged with two counts of theft under $1,000 from La Cache in Hamilton — one on January 15, 1992, and another on February 17, 1992. The information was sworn on November 4, 1992, and that same day Breeze showed up for trial ready to defend herself.

But the Crown had a problem: they'd forgotten to provide the required notice under section 30(7) of the Canada Evidence Act to introduce business records as evidence. Without those records, their case would collapse. Rather than ask the judge for leave to introduce the documents or request an adjournment, the Crown made a calculated decision. They delayed calling the case, had the police officer prepare a new summons with the proper notice, then withdrew the charges and immediately served Breeze with the new summons as she left the courtroom.

Issues

1. Whether the Crown's conduct in withdrawing and re-laying identical charges to avoid a potential adverse ruling constituted an abuse of process
2. Whether this conduct violated Breeze's Charter rights under section 7

The Abuse of Process

Judge Zabel was not impressed. The court found that while the Crown has the right to withdraw charges, that right is not unlimited when the purpose is to circumvent an adverse judicial ruling rather than to discontinue proceedings. The Crown had legitimate options on the trial date — they could have sought leave to introduce the business records despite the notice defect, or requested an adjournment. Instead, they chose a third option: tactical withdrawal to avoid facing the music.

The judge referenced R. v. William Bedford Stanley Brown, where similar Crown conduct was stayed, noting that allowing such maneuvers "would make a mockery of the practice direction by the Chief Justice of Ontario that when a case has been set for trial it should proceed unless there are valid reasons to the contrary." The timing was particularly damning — the Crown didn't withdraw the charges until they had sufficient time to prepare new paperwork, demonstrating the calculated nature of their strategy.

Key Takeaway

The Crown cannot use withdrawal and re-laying of charges as a tactical weapon to avoid inconvenient court rulings.

When prosecution conduct is designed to circumvent the judicial process rather than serve the interests of justice, courts have the power to permanently stay proceedings as an abuse of process. This protection exists even in seemingly minor cases involving theft under $1,000.

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R v CHAULK

[1997] O.J. No. 6281

No summary has been written for this decision yet.

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R v Regan [2002] SCR 12

No summary has been written for this decision yet.

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R v Taker

[1996] O.J. No. 3276

R. v. Taker

[1996] O.J. No. 3276
Ontario Court of Justice (Provincial Division) — Bigelow Prov. J. | August 16, 1996

Background

Earl Blair Taker, a police officer, was charged with driving over .08 and impaired driving causing bodily harm after a serious accident on April 2, 1995. The case dragged on for seven months with multiple adjournments while the Crown failed to properly screen the charges or follow their own policies. During a judicial pre-trial, defence counsel Michael Edelson pointed out fatal flaws in the Crown's case — specifically, that police had failed to advise Taker of his right to counsel before taking blood samples.

Crown Attorney George Dzioba reviewed the file and agreed the charges should be withdrawn. He told Edelson the charges would be dropped at the next court appearance on January 2, 1996. But when that date arrived, a different Crown attorney appeared with a memo that wasn't clear. A week later, senior Crown Attorney Adrejs Berzins sent a letter reversing the decision entirely — not only would the original charges proceed, but *new* charges of dangerous driving would be added.

Issues

1. Whether the Crown's conduct in reneging on an undertaking to withdraw charges constituted an abuse of process
2. What remedy would be appropriate given the totality of the Crown's conduct

The Abuse of Process Finding

Judge Bigelow found that while no single Crown action would necessarily constitute abuse of process, taken as a whole, the prosecution's conduct "connoted unfairness." The problems were extensive: the Crown failed to screen charges for seven months despite their own policies requiring early review; they appeared unprepared at the judicial pre-trial; they reneged on a clear undertaking to withdraw charges; they failed to provide proper disclosure (withholding police memos); and they pressured the accused to elect his mode of trial while knowing further investigation was ongoing.

Critically, the court found that Crown Attorney Berzins had misled defence counsel about disclosure, claiming Edelson had "already received disclosure" when Berzins knew that key police memos had never been provided. The court also noted that while Crown policy allowed senior counsel to override withdrawal decisions in rare cases where fulfilling an undertaking would be "unconscionable," the Crown had failed to follow proper procedures.

The Remedy

Rather than staying all proceedings (which would have killed the case entirely), Judge Bigelow crafted a measured remedy under section 24(1) of the Charter. He stayed the new Information containing the dangerous driving charges but allowed the original charges to proceed. He also permitted Taker to re-elect his mode of trial, since he had been forced to make that choice without full disclosure of the case against him.

Key Takeaway

Crown undertakings to withdraw charges are serious commitments that cannot be casually broken, and prosecutorial misconduct can result in charges being stayed even when the Crown has a strong case.

This case shows that courts will scrutinize the totality of Crown conduct, not just individual missteps. When prosecutors fail to follow their own policies, mislead defence counsel about disclosure, and renege on clear undertakings, they risk having their case thrown out regardless of the strength of their evidence.

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