R. v. Beseiso, 2025 ONSC 2743

Court File No.: CR-19-2032
Date: 2025/05/07
Between: His Majesty the King – and – Alex Beseiso
Applicant Counsel: Vanessa Stewart, for the Crown
Applicant: Self-Represented
Heard: In Writing

Ontario Superior Court of Justice

Ruling on Application Re: Abuse of Process

Justice I. Carter

Introduction

[1] Alex Beseiso has brought an application alleging an abuse of process and seeking a stay of proceedings. The Crown is asking to have that application summarily dismissed. In order to ensure an efficient, fair and timely process, we proceeded on a paper record and without an oral hearing. I have instead received written submissions from the parties.

[2] By way of background, Mr. Beseiso was charged with one count of extortion and one count of obstruct justice. The two counts related to the same incident – a voicemail message that Mr. Beseiso left for Garry Presendieu, an individual who was renting a room at a house connected to the accused. The essence of the message was that Mr. Beseiso would destroy fentanyl that was allegedly found in Mr. Presendieu’s room if Mr. Presendieu paid him $2,000 for damages sustained to the residence and withdrew proceedings that had been commenced before the Landlord and Tenant Board. I found that Mr. Beseiso left the voice mail message and that it amounted to extortion and obstruct justice. Given that he had an outstanding s. 11(b) application, I made findings of guilt on both counts but did not enter convictions.

[3] Prior to the hearing of the s. 11(b) application, Mr. Beseiso filed a Charter application alleging an abuse of process on the part of prior and current Crown counsel who have been assigned at various stages of this prosecution.

[4] The abuse alleged by Mr. Beseiso can be summarized as follows:

a. That the Crown consented to an adjournment and then opposed the adjournment of the s. 11(b) motion. A defence lawyer retained by Mr. Beseiso to argue the s. 11(b) motion did not want to fight with the Crown so instead decided to be removed from record.

b. That prior Crowns perverted, obstructed and impeded an investigation into fentanyl because they prosecuted Mr. Beseiso instead of the complainant.

c. That the lead officer in the investigation intended to obstruct, impede or defeat the course of justice by making threats to create fear in a justice system participant to impede him from bringing forward the fentanyl.

[5] At the outset of the s. 11(b) application, Mr. Beseiso requested that subpoenas be issued for an assistant Crown Attorney who previously had carriage of the file as well as the defence lawyer who had been retained to argue the s. 11(b) motion. The currently assigned assistant Crown Attorney indicated that the Crown would oppose this and that any application requesting a subpoena should be heard by the seized judge. Mr. Beseiso then amended his submissions indicating he wanted a third subpoena issued for that assistant Crown Attorney.

[6] It was agreed that the argument regarding the issuance of the subpoenas would be heard by me on May 16, 2025. However, I ordered that written submissions and materials on the summary dismissal application be provided to me prior to then and that if I granted the Crown’s application we would not proceed with a hearing on that date.

Legal Principles

[7] The principles at play when abuse of process is alleged have been clearly set out by the Supreme Court of Canada in the decision of R. v. Babos, 2014 SCC 16. The Court noted that the cases in which a stay of proceedings for abuse of process will be warranted fall into two categories:

1. Where state conduct compromises the fairness of an accused’s trial (the “main” category); and
2. Where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the “residual” category) (para. 31).

The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:

1. There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome”;
2. There must be no alternative remedy capable of redressing the prejudice; and
3. Where there is still uncertainty over whether a stay is warranted after steps 1) and 2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits” (para. 32).

[8] In the recent decision of R. v. Haevischer, 2023 SCC 11, the Supreme Court of Canada dealt with summary dismissal motions in the context of abuse of process applications. The Court held that application in a criminal proceeding, including for a stay of proceedings for abuse of process, should only be summarily dismissed if the application is manifestly frivolous. The frivolous aspect of the test is meant to weed out applications that will necessarily fail. The word “manifestly” captures the idea that the frivolous nature of the application should be obvious (paras. 66 to 69).

[9] On a summary dismissal motion, the judge must assume the facts alleged by the applicant to be true and must take the applicant’s arguments at their highest. However, where the applicant cannot point towards any anticipated evidence that could establish a necessary fact, the judge can reject the factual allegation as manifestly frivolous. From a legal perspective, an application will only be manifestly frivolous where there is a fundamental flaw in the application’s legal pathway. Examples include where the judge has no jurisdiction to grant the requested remedy, the legal argument has already been rejected or key portions of the application are missing (paras. 83, 85 and 87).

[10] With respect to the summary dismissal of an abuse of process application in particular, an application might be manifestly frivolous at stage one or stage two of the Babos test. If the application is found not to be manifestly frivolous at these two stages, there is no need for the trial judge to consider the balancing exercise at stage three. To do so would be to consider the merits of the ultimate issue, which is not permitted at the summary dismissal stage (paras. 116 to 117).

Application of the Legal Principles

[11] With respect to the first allegation, I conclude that it is manifestly frivolous. Even accepting that the Crown changed its position on consenting to the adjournment request and that this dissuaded counsel from coming on record to argue the s. 11(b) motion, this could not amount to an abuse of process. First, there was no “deal” in place that the Crown reneged on which might, in some circumstances, amount to an abuse of process: R. v. Nixon, 2011 SCC 34. Second, absent an agreement that is in place that the accused acted on, there is no prejudice. Third, the Crown is given wide latitude in terms of the manner in which it prosecutes its cases. Refusing to consent to an adjournment for a s. 11(b) application is hardly uncommon, much less abusive. Defence counsel could have argued for the adjournment and might well have been successful. It is patently obvious that this argument would fail if it were to proceed to a full hearing.

[12] The latter two arguments sit on a slightly different footing. That is because there is already a fulsome evidentiary record on each of them. Any argument that the Crown should not have prosecuted Mr. Beseiso fails in the face of the fact that he was found to have committed the offences he was charged with. Whether Mr. Presendieu should have been prosecuted for possession of fentanyl is completely irrelevant to whether there was a basis to charge Mr. Beseiso. This argument is bound to fail.

[13] As for the argument that the lead investigator in the investigation intended to obstruct, impede or defeat the course of justice, I would note that the officer testified at the trial. He was cross-examined on this topic. Ultimately, he was assigned to the extortion investigation. Nothing he did prevented Mr. Beseiso from bringing his allegations about fentanyl to the police department in general. All that the investigator said was that before bringing the fentanyl in he should speak to a lawyer and that going into Mr. Presendieu’s room without his consent could amount to break and enter. Those were reasonable comments and could in no way amount to an abuse of process. There is no merit to this allegation. Again, it is bound to fail.

[14] As a result, I conclude that the application in its entirety should be summarily dismissed.

Justice I. Carter
Released: May 7, 2025