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".
The background facts are important:
The accused brought an abuse of process motion and sought
disclosure of documents over which the Crown asserted
The trial judge ordered that the documents be disclosed to
him (to then decide whether to disclose to the other
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.
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
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.
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.
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.
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.
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