All Convictions Are Not the Same: Rethinking CUPE’s Abuse of Process Doctrine in Cases Involving Plea Bargains

Lara Kinkartz

Abstract


Historically, when a criminal conviction was introduced as evidence of guilt in a subsequent civil action, the convicted party was permitted to introduce rebuttal evidence to negate or mitigate the effect of the prior conviction. However, the Supreme Court of Canada’s 2003 decision in Toronto (City) v Canadian Union of Public Employees (CUPE) Local 79 has resulted in an unprecedented restriction on the ability to rebut a prior conviction. As a result of the CUPE decision, the doctrine of abuse of process now precludes rebuttal evidence in most cases.

CUPE’s expanded abuse of process doctrine is troubling because, to date, courts have applied it to all prior convictions—even convictions arising out of plea bargains. However, Canada’s system of plea bargaining exerts significant coercive pressure on the accused, which may render such convictions less trustworthy. This paper argues that it is time that our civil courts recognize that all convictions are not the same: those based on plea bargains raise unique fairness concerns that warrant relaxing CUPE’s rigid bar on rebuttal evidence. Judges in our civil courts ought to be permitted to examine the circumstances surrounding guilty pleas to determine if the plea bargain appears to be coercive. If so, they ought to permit the convicted party to adduce rebuttal evidence. Such an approach remains true to the main principle underlying the CUPE decision—the integrity of the justice system—while at the same time preventing the unfairness of coercive plea bargains from spilling over into our civil courts. 


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