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The CCLA is at the Supreme Court of Canada today arguing that courts should not be too quick to summarily dismiss Charter claims – and in particular those that allege abuse of process during a criminal investigation or trial.

Abuse of process claims cover a lot of ground. Entrapped by police? Abuse of process.  Forcibly abducted in a foreign country by the Canadian government? Abuse of process. Crown threatened to lay additional charges if you didn’t take a guilty plea? That can be abuse of process too. And one of the main remedies individuals seek after these types of abusive state actions is a stay of proceedings – the charges against them can’t proceed, and the trial ends.

In the normal course of a criminal trial abuse of process claims would have a full hearing, with evidence presented regarding both the alleged state misconduct and the appropriate remedy. Sometimes, however, the Crown argues that the judge should dismiss the claim without hearing the evidence. Today’s Supreme Court hearing will help decide what the threshold is for ending a Charter claim without a full evidentiary hearing.

CCLA argued that an abuse of process claim should only be summarily dismissed if the Crown has satisfied the Court that an evidentiary hearing cannot assist in adjudicating the claim fairly and reliably. Uncovering abuse by state actors – and in particular evidence of systemic abuse – can be difficult. The evidence of the nature and extent of misconduct may not be available prior to a full evidentiary hearing – particularly where accused persons are incarcerated or self-represented.

Many thanks to CCLA’s pro bono counsel, Andrew Matheson and Natalie Kolos of McCarthy Tétrault LLP for their excellent work on this case.

Read CCLA’s factum here.

Watch a webcast of the Supreme Court hearing here.

About the Canadian Civil Liberties Association

The CCLA is an independent, non-profit organization with supporters from across the country. Founded in 1964, the CCLA is a national human rights organization committed to defending the rights, dignity, safety, and freedoms of all people in Canada.

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