Friday, January 8, 2016

Abuse of Process - Trial Fairness - Unreliable Evidence: A Look at Blencoe v. B.C. Human Rights Commission

   Canada is a free and democratic nation governed by the Rule of Law and a written constitution.  Pursuant to this written constitution Superior Courts are vested with review jurisdiction over all administrative tribunals.  Administrative tribunals are mandated under the Rule of Law, our written constitution and our common law to conduct legal proceedings in a manner which is not repugnant to either of these sources of law.  Where administrative tribunals conduct legal proceedings in a manner repugnant to any of these sources of law it is the duty of the Superior Court to correct them.  This has been the law of this land since I have known myself and clearly before this time.  Counsel acting for litigants in these circumstances has both a moral and professional duty to raise such issues.

   Abuse of process is a highly flexible legal doctrine which a litigant can employ to challenge the legality of legal proceedings initiated against him or her.  Res Judicata is a branch of the doctrine of abuse of process which aims to prevent relitigation of claims already decided. It too is important. However, it is not the focus of this post.

   The abuse of process which is the focus of this post is perhaps best characterized or described as trial fairness abuse of process.  Like negligence, the facts and circumstances which will give rise to this type of claim are not closed.  In simple terms this means that one can not define with precision all of the facts and circumstances which can amount to an abuse of process. In order to appreciate the power of this doctrine in our law it is vital to have a proper understanding of what an abuse of process is.  An abuse of process can be defined as any set of facts and circumstances which reasonably undermines the legitimacy or the fairness of a legal proceeding. The following few examples may assist in clarifying the points:  1.  the failure to follow a procedure mandated by law for initiating and investigating an allegation(s);  2.  the failure to follow established legal principles touching on the substance of the allegation(s);  3. evidence that the passage of time adversely impacted either or both the reliability of the evidence in support of the allegation(s) and the ability to defend it; and 4. any evidence that the allegation(s) were brought for an improper purpose - such as to increase penalty.

   The Supreme Court of Canada set out some significant legal principles to guide lower courts and tribunals on the very serious issue of abuse of process within the context of delay.  In a nutshell, delay on its own does not amount to abuse of process.  In order for delay to enter the realm of abuse of process the delay must bring about some form of prejudice on one or more of the following areas:  1.  reliability of the evidence;  2.  ability to defend the allegations; and 3.  psychological or harm to a person's reputation.

   Counsel contemplating bringing a motion of this sort must ensure that in addition to an inordinate delay between the occurrence(s) and its adjudication that there is some evidence that delay impacted at least one of the four points delineated above.  Where the prosecutor and the trial judge joins counsel in advocating for a "wait and see" or blended approach to the adjudication of this claim counsel has properly discharged his or her duty on this point.  It is then incumbent on the trial judge to make factual and legal conclusions in the adjudication of this claim.  Below are some excerpts from the Supreme Court of Canada's decision in Blencoe  v.  British Columbia (Human Rights Commission) (2000) S.C.C. 44.

The Supreme Court of Canada said the following in Blencoe  v.  British Columbia (Human Rights Commission) (2000) S.C.C. 44:

at p.367

   "...There is no doubt that the principles of natural justice and the duty of fairness are part of every administrative proceeding.  Where delay impairs a party's ability to answer the complaint against him or her, for example memories have faded, essential witnesses have died or or are unavailable, or evidence has been lost, then administrative delay may be invoked to impugn the validity of the administrative proceedings and provide a remedy (D.J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose leaf), at p.9-17; W. Wade and C. Forysyth, Administrative Law (7th ed 1994), at pp.435-36).  It is thus accepted that the principles of natural justice and the duty of fairness include the the right to a fair hearing and that undue delay in the processing of an administrative proceeding that impairs the fairness of the hearing can be remedied..."

and at p.369:

   "It is trite law that there is a general duty of fairness resting on all public decision-makers (Martineau   v.  Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602 at p.628.  The human rights processes at issue in this case must have been conducted in a manner that is entirely consistent with the principles of natural justice and procedural fairness.  Perhaps the best illustration of the traditional meaning of this duty of fairness in administrative law can be discerned fro the following words of Dickson J. In Martineau, at p. 631:

   "In the final analysis, the simple question to be answered is this: Did the tribunal on the facts of the particular case act fairly toward the person claiming to be aggrieved ?  It seems to me that this is the underlying question which the courts have sought to answer in all the cases with natural justice and with fairness."

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