12/23/2023 0 Comments Due process criminal justiceHistoryĮarly case law stated that abuse of process would be engaged where the process "would violate those fundamental principles of justice which underlie the community's sense of fair play and decency", or where the proceedings are "oppressive or vexatious." Purpose denunciation of conduct or preserving the integrity of the system) against the "interest that society has in having a final decision on the merits". Where the alleged conduct is not sufficient to justify a stay when considered in the context of either of the two categories, the judge must still consider the existence of a breach by balancing the interests in favour of a stay (e.g. 7 of the "integrity of the judicial system". conduct that falls into the "residual" protection of s.conduct affecting the "fair trial" rights under s.It protects against two categories of abuses consisting of: The doctrine arises out of two protections within s. However, for most practical purposes the doctrine is entirely encompassed by the Charter. The doctrine of abuse of process exists both at common law and under s. The defence has as right to allege abuse of process and prosecutorial misconduct only where "those allegations have some foundation in the record, only where there is some possibility that the allegations will lead to a remedy and only at the appropriate time in the proceedings." Charter vs Common Law The abuse of process doctrine provides courts with the authority to order that a proceeding be stayed on the basis that they are unfair or otherwise sufficiently undermine the integrity of the judicial system. General Principles See also: Principles of Fundamental Justice
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