The Ontario Court of Appeal’s June 22, 2015 decision in R. v. Rutigliano considers when an appeal itself will be an abuse of process. The accused submitted that the Crown, on the facts of this case, had improperly attempted to “short-cut” the appellate process for an interlocutory appeal. The Court held that the appeal was not an abuse of process, as the prosecution can halt a proceeding and immediately appeal an interlocutory order if “compliance with the interlocutory order raises a reasonable prospect of harm to an interest the court deems worthy of protection”.

Background

The background facts are important:

  • The accused brought an abuse of process motion and sought disclosure of documents over which the Crown asserted solicitor-client privilege.
  • The trial judge ordered that the documents be disclosed to him (to then decide whether to disclose to the other parties).
  • Rather than comply with the order, the Crown asked the judge to enter a stay of proceedings.
  • The Crown then appealed the entering of the stay, in conjunction with appealing the disclosure ruling.

The accused submitted the appeal was an abuse of process, arguing that “refusing to comply with the motion judge’s order and short-circuiting the disclosure process by way of an interlocutory appeal amounts to an abuse of process” (para. 32).

Reasons

Justice Pardu held that the appeal was not an abuse of process. She distinguished a key precedent relied upon by the respondents, and explained options that a prosecutor can take when faced with an interlocutory order:

[34]      This court recognized in Fafalios that a prosecutor confronted with an interlocutory order to which it objects has two options. It can either continue with the proceedings and appeal after the case is terminated, or, where there is no reasonable alternative, bring the proceedings to a halt and appeal the interlocutory ruling: Fafalios, at para. 42. There may be no reasonable alternative other than to pursue a functional appeal of an interlocutory order where: (1) the effect of the interlocutory ruling is to leave the Crown without a case, or (2) “compliance with the interlocutory order raises a reasonable prospect of harm to an interest the court deems worthy of protection”: Fafalios, at para. 44.

[35]      In the circumstances [of Fafalios], this court concluded that the Crown’s appeal amounted to an abuse of process. The Crown had failed to object to the disclosure orders before the extradition judge on the basis of privilege or harm to international relations. Having failed to do so, it was an abuse of process to raise those issues on appeal.

[36]      This case is different. The Crown asserted solicitor-client privilege before the motion judge. The focus of his ruling was solicitor-client privilege. While the motion judge ordered that the relevant materials be disclosed to himself and not yet to the parties, the Crown acknowledged that it was inevitable that the court would order disclosure of the officers’ notes recording the legal advice from the Crowns. Rather than spending time finding, reviewing and producing all privileged information, it requested a judicial stay to prevent the disclosure of privileged solicitor-client communications. Counsel for the respondents agreed that the court make the requested order.

[37]      I see no abuse of process in the manner in which the Crown terminated the proceedings before the motion judge or brought this appeal. I accept that, in the circumstances of this case, there was a reasonable prospect that continuing with the proceeding would have resulted in an abrogation of solicitor-client privilege, which is an interest worthy of legal protection. The fact that the Crown might have instead sought leave to appeal directly to the Supreme Court of Canada from the interlocutory ruling does not render its actions here an abuse of process.

Justice Pardu ultimately concluded that the disclosure order was premature. The accused submitted that it would be inappropriate to remit the case to the Superior Court as “there is no realistic possibility [of] a different result if the matter is remitted…a stay of proceedings is inevitable.” Justice Pardu disagreed, however, and remitted the matter to the Superior Court.