Sur preuve que l'appareil criminel est utilisé pour hâter la perception d'une créance, la poursuite pourrait être avortée pour abus de procédure

R. v. Hines, 1995 CanLII 4457 (NS SC)

Lien vers la décision

In his brief counsel for the accused cites an article entitled "Case Reference on Abuse of Power" reported in 37 C.R.N. 153 (1977) and references a number of cases, namely:

Rex v. Michigan Central Railway. (1907), W.W.R. 660, 17 C.C.C. 483 (Ont)

Rex v. Thorton (1926), 37 B.C.R. 344, 46 C.C.C. 249 (B.C.C.A)

Rex v. Leraux (1928), 3 D.L.R. 688 (Ont. C.A.)

Rex v. Bell (1929), 51 C.C.C. 388 (B.C.C.A.)

Regina v. Lee (1956), 114 C.C.C. 371 (Alta. C.A.)

Regina v. Leclair (1956),115 C.C.C. 297 (Ont. C.A.)

Regina v. Brown (1963), 7 Cr. L. Q. 238 (Ont. C.C.)

Nebraska v. Morris (1971), 2 C.C.C. (2d) 282 (Man.)

All of these cases related to the use of criminal proceedings for the purpose of collecting a private civil debt, or for payment of civil claims for damages, or for punishment of a defaulting debtor. In most of these cases a stay was granted where the facts were clear and exceptional.

An interesting comment appears in the Bell cases at pages 391 to 392 as follows:

it is apparent to us that the criminal proceedings were manifestly not taken in vindication of public justice but wholly because of the appellant's refusal to comply with the demand to 'dig up the money or take the consequences.' The prosecution was, therefore an abuse of the process of the magistrate's court which we cannot countenance. We think that the Criminal Courts are not to be held in terrorem over alleged debtors."

With deference, it is my opinion that that is what has happened in this case ‑ the proceedings were not taken in vindication of public justice. And remember Bell was a collection of a civil debt. Here there is allegations of criminal extortion.

Other Ontario cases cited by the accused, namely R. v. Sparks (1981) case, 65 C.C. C. (2d) (Ont. Co. Court) and R. v. Van Holland reflex, (1984) 13, C.C.C. (3d) 225 (Ont. Co. Court) involved civil debts and misappropriation, again where stays of proceedings were granted.

In Re: Reqina and Laird reflex, (1983) 4 C.C.C. (3d) 92 (Ont. High Court) the victim of a fraud asked the accused for repayment of money. Criminal proceedings were not threatened. Callaghan J. (as he then was) held at page 96:

"In order to conclude that the criminal process is being used for the prescribed purpose evidence of either an implied or express threat is usually present."

He held a stay was not appropriate in that case because there was no evidence of an implied or expressed threat.

A Nova Scotia case was cited R. v. Waugh reflex, (1985), 21 C.C.C. (3d) 80 (N.S.C.A.), and a stay was not upheld on the facts as there was not an implied or express threat involved and it's clear on the facts that there was not.

In the case before me I am convinced that an express threat was apparent in the letters sent by the complainant to the accused.

In all of the cases cited by counsel for the accused where an express threat to go to the police was noted by the trial judge, the charges were stayed.

Now, on the other hand the Crown submits that to allow the prosecution to proceed would not "tarnish the integrity of the Court." With deference I am not in agreement with this submission. I do, however, agree that the "civil debt" aspect of the case should only be one factor to be considered in a possible stay of proceedings.

The case of R. v. Gelinas (1994, 94 C.C.C. (3d) 69 (Quebec C.A.) cited by the Crown can be distinguished. At page 74, Deschamp J. A. Judge of the Appeal states:

"..This is, therefore not a case where one person would have succeeded in using, to his own ends, the criminal justice system."

and I, again, go over-

("would have succeeded in using".) But rather a situation where an investigating officer used information transmitted to him in order to uncover facts which according to him justified criminal prosecution."

This is not the case before me. Ms. Blades could have succeeded. She could have succeeded in using the criminal justice system for her own ends. She provided the information to the police ‑ it was not a matter of an investigating officer uncovering facts in reading the letters. This woman knew who her doctor was. She knew who her witnesses were and she knew the evidence.