What is the role of abusive conduct by the police in determinations of abuse of process?

British Columbia, Canada


The following excerpt is from R. v. Guilbride, 2003 BCPC 44 (CanLII):

As abusive conduct by police has a role to play in determinations of this sort, I have been referred to Regina v. Shirose (1999) 133 C.C.C. (3d) 275 (S.C.C.). In Shirose the police were offering to sell a large quantity of hashish in a "reverse sting" operation. Binnie J., for the court, at para. 42, indicated that the "legality of police action is but a factor, albeit an important factor, to be considered in the determination of whether an abuse of process has taken place..." He also stated that in instances "where the courts have found that illegality or other misconduct amounts to an abuse of process, it has by no means followed that a stay of proceedings was considered the appropriate remedy." At para. 43, Binnie J. said that even if it turned out that the police had acted contrary to legal advice, the trial judge "would still have to consider other information or explanatory circumstances that emerge during the inquiry into whether the police or prosecutorial conduct "shocks the conscience of the community". At para. 47, he drew the following distinction: A police force that chooses to operate outside the law is not the same thing as a police force that made an honest mistake on the basis of erroneous advice. The latter part of that quote seems apt to what occurred in Greece.

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