Accused charged with 2 counts of second degree murder was discharged for those offences after preliminary hearing, but committed on 2 counts of manslaughter. At the first arraignment date, Crown presented a direct indictment alleging the second degree murder charges. Defence challenged the direct indictment based on abuse of process, citing breaches of Charter ss 7 and 11(d), and later 11(b), and sought a stay of proceedings or direction that trial would proceed on only the manslaughter charges.
Held: Application dismissed.
Accused bears the burden of proving abuse of process by the Crown on a balance of probabilities. The Court cited Anderson [2014 SCC 41] and held, “[a]bsent a provable claim of abuse of process, the Crown is entitled to exercise its discretion as it wishes without judicial review. In particular, the Crown is not required to explain why it chose to exercise its discretion in the way it did unless and until the accused establishes a proper evidentiary foundation. A bare allegation of an abuse of process is not sufficient.”
P. Fagan, QC – Defence Counsel