COURT OF APPEAL FOR ONTARIO
Strathy C.J.O., Watt and Zarnett JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Robert Glegg
Applicant (Appellant)
Leo Adler, for the appellant
Jeremy D. Tatum, for the respondent
Heard: November 12, 2020 by videoconference
On appeal from the judgment of Justice Clayton Conlan of the Superior Court of Justice, dated June 20, 2018, with reasons reported at 2018 ONSC 3861.
1The appellant is a private informant. He laid an information before a justice of the peace in which he alleged that his ex-wife committed three indictable offences: abduction, perjury, and disobeying a court order.
2A pre-enquete was scheduled to determine whether process should issue to compel the appellant’s ex-wife to appear to answer the charges.
3The appellant prepared a detailed memorandum to support his case for the issuance of process at the conclusion of the pre-enquete. He retained counsel to assist him at the hearing. Both appeared at the pre-enquete.
4An agent of the Attorney General (Crown counsel) also appeared at the pre-enquete. Before the justice of the peace heard the allegations of the appellant or the evidence of any witnesses, Crown counsel directed the clerk of the court to enter a stay of proceedings on the information laid by the appellant.
5The appellant filed a Notice of Application in the Superior Court of Justice. He sought an order setting aside the stay of proceedings entered by Crown counsel and directing the justice of the peace to conduct the pre-enquete.
6The respondent invoked Rule 34.02 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) SI/2012-7 (“CPR”) in answer to the appellant’s application. On the hearing, the motion judge dismissed the appellant’s application relying on Rule 34.02 to do so.
7The appellant appeals. He asks that we set aside the decision of the motion judge and the stay entered and direct that a pre-enquete be held to determine whether process should issue.
8These reasons explain why I would dismiss the appeal.
The Background Facts
9The issues raised on appeal do not require any elaboration of the circumstances underlying the offences the appellant alleges his ex-wife committed. A brief summary of the procedural history of the case will suffice.
The Information
10On March 27, 2018 the appellant laid an information before a justice of the peace. The appellant alleged that his ex-wife, from whom he separated in 2001, had committed three indictable offences in the State of Florida and this province at various periods between 2014 and 2016.
Preparation for the Pre-enquete
11The appellant retained counsel to assist him in presenting his case for the issuance of process on the information. Counsel provided the local Crown with a copy of the materials on which the appellant relied and responded to questions asked and concerns expressed by the Crown about the manner in which the appellant proposed to prove the abduction allegation.
The Pre-enquete
12About six weeks after a justice of the peace received the information laid by the appellant, the pre-enquete was commenced before a designated justice of the peace.
13At the outset of the pre-enquete, before the justice of the peace heard the allegations of the appellant or the evidence of any witnesses, Crown counsel directed the clerk of the court to enter a stay of proceedings on the information under s. 579(1) of the Criminal Code of Canada.
14Crown counsel explained his reasons for directing entry of the stay. The allegation of abduction was legally unsustainable in view of the litigation history between the appellant and his ex-wife. The count of disobeying a court order under s. 127 of the Criminal Code could not be established because “other legislation expressly provides another punishment or mode of proceeding” thus barring conviction under the section. And there was no reasonable prospect of conviction on the count alleging perjury.
15In addition, Crown counsel explained that an essential witness on all counts, the appellant and accused’s daughter, would likely suffer “significant trauma” if required to testify. There was a lengthy history of parental conflict to such an extent that she obtained a court order permitting her to withdraw from parental control.
16The justice of the peace did not conduct the pre-enquete once Crown counsel had directed entry of the stay of proceedings. No process issued.
The Notice of Application
17Assisted by counsel, the appellant applied to the Superior Court of Justice for an order setting aside the stay of proceedings and directing the conduct of the pre-enquete. The appellant alleged that entry of the stay was not authorized by s. 579(1) of the Criminal Code, constituted a breach of his rights under s. 7 of the Canadian Charter of Rights and Freedoms, and was an abuse of process. The remedial provisions mobilized in support of the application included ss. 24(1) of the Charter, ss. 52(1) of the Constitution Act, 1982, and the extraordinary remedy of mandamus.
18The Crown opposed the application and sought its summary dismissal under Rule 34.02 of the CPR.
The Decision of the Motion Judge
19The motion judge heard submissions on whether the appellant’s application should be dismissed without a hearing under Rule 34.02. After reserving his decision, he released written reasons dismissing the appellant’s application on the basis that it had no reasonable prospect of success. In doing so, he invoked Rule 34.02.
20The motion judge was satisfied that the standard to be applied on the Crown’s application under Rule 34.02 is “a high one”. He accepted that the direction that a stay be entered was part of the core discretion of the Crown. The exercise of this discretion was reviewable only on the ground of flagrant impropriety in its exercise. In this case, the motion judge observed, the Crown had provided detailed reasons for directing entry of the stay. The proposed prosecution was not in the public interest and there was no reasonable prospect of conviction on any of the proposed counts.
21In the result, the motion judge was satisfied that there was no reasonable prospect that the appellant’s application could succeed. Rule 34.02 was engaged and the appellant’s application was dismissed without a hearing.
The Grounds of Appeal
22The appellant takes issue with the decision of the motion judge. He says that the motion judge erred:
i. in invoking Rule 34.02 to dismiss his application to set aside the stay and order the conduct of the pre-enquete; and
ii. in failing to hold that the Crown had no authority to enter a stay under s. 579(1) before hearing the allegations of the appellant and the evidence of witnesses because there was no “accused” and proceedings had not been “commenced” as required by s. 579(1).
Ground #1: The Applicability of Rule 34.02
23The specific focus of this ground of appeal is the applicability of Rule 34.02 of the CPR. However, the standard set out in that rule, “there is no reasonable prospect that the application can succeed”, requires consideration of the merits of the substantive errors alleged in the interpretation of s. 579(1) of the Criminal Code.
The Arguments on Appeal
The Appellant’s position
24The appellant contends that the motion judge properly stated, but erred in applying, Rule 34.02. The rule sets a rigorous standard. Much like a motion to strike a claim in civil proceedings, Rule 34.02 is a tool that must be used with care. If there is a reasonable prospect that an application will succeed, the rule should not be invoked. The approach should be generous and err on the side of permitting a novel, but arguable, application to proceed.
25In this case, the prevailing jurisprudence has failed to correctly interpret the scope of the Crown’s authority to direct a stay of proceedings under s. 579(1) at the pre-enquete. A hearing on the merits is required to resolve this issue.
26The appellant submits that at the outset of a pre-enquete, before the allegations of the informant and the evidence of witnesses have been heard, the Crown cannot, as it did here, enter a stay of proceedings. Until a determination to issue process has been made, there is no “accused”, and proceedings have not “commenced”.
27In addition, the motion judge applied the wrong test in failing to set aside the stay. The standard for a court to overturn the Crown’s exercise of discretion is not “flagrant impropriety”, rather it is less demanding.
The Respondent’s position
28The respondent contends that the motion judge properly invoked Rule 34.02 to dismiss the appellant’s application to set aside the stay and direct that a pre-enquete be held. This result could equally have been achieved under Rule 6.11 of the CPR or in the exercise of the authority discussed in R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659 at para. 38.
29The essence of the appellant’s position is that the Crown could not direct entry of the stay before the justice had conducted the pre-enquete and had decided to issue process. This is because of the wording of s. 579(1) of the Criminal Code and the provisions of s. 11(d) of the Crown Attorneys Act, R.S.O. 1990, c. C.49. This same argument has been repeatedly rejected by this court in unequivocal terms that operate as binding precedent. The provisions of the Crown Attorneys Act do not mandate otherwise.
30A decision by the Crown to direct entry of a stay of proceedings under s. 579(1), the respondent contends, is a core element in the exercise of prosecutorial discretion. It is equally so whether its entry is in a public or private prosecution. Entry of a stay has to do with a decision about whether a prosecution will proceed or continue, against whom, and on what charge. This decision occupies the core of the sovereign authority peculiar to the office of the Attorney General.
31Within this core of prosecutorial discretion, the courts cannot interfere except in circumstances of flagrant impropriety amounting to an abuse of process. This requires evidence that the Crown’s conduct is so egregious that it undermines the integrity of the judicial process or results in trial unfairness. As for example, where it is the product of improper motive or grounded in bad faith.
32In this case, the respondent says, the appellant has failed to provide any evidentiary foundation to put into play an arguable case of abuse of process. That the appellant disagrees with the decision of Crown counsel to direct entry of a stay moves no freight. The presumption that the exercise of prosecutorial discretion was bona fide, as Crown counsel explained when directing entry of the stay, remains in place. The motion judge did not err in failing to set aside the stay.
The Governing Principles
33Several principles inform our decision on this ground of appeal. Some have to do with the applicability of Rule 34.02 to the decision under review. Others are concerned with the scope of s. 579(1) of the Criminal Code, in particular, with the temporal limits on its exercise. The remainder relate to the reviewability of stay decisions made by the Crown.
Rule 34.02
34Rule 34, entitled, Hearing of Pre-trial and Other Applications, is contained in Part III, Trial Proceedings and Evidence, of the CPR. Under Rule 34.02, the presiding judge may conduct a preliminary assessment of the merits of any pre-trial or other application. The assessment is based on the materials filed on the application. If the judge is satisfied on the basis of those materials that there is no reasonable prospect of success, the judge may dismiss the application without further hearing and inquiry.
35Rule 34.02, headed Preliminary Assessment of Application, is in these terms:
The presiding judge may conduct a preliminary assessment of the merits of any pre-trial or other application on the basis of the materials filed, and, if satisfied that there is no reasonable prospect that the application could succeed, may dismiss the application without further hearing or inquiry.
36Rule 34.02 is essential to effective and fair litigation. It promotes two goals: efficiency and correct results. Dismissing applications that have no reasonable prospect of success unclutters the proceedings, weeds out the hopeless, and draws the attention of the decision-makers where it should be – ensuring that those with a reasonable prospect of success proceed to adjudication on their merits: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 19.
37The procedure involved where Rule 34.02 is invoked is informal, else it become antithetical to its purpose. When summary dismissal is sought, the affected party should put its best foot forward. The standard to be met by the party invoking the rule is demanding. This necessarily follows from the language “no reasonable prospect that the application could succeed”: R. v. Papasotiriou-Lanteigne, 2017 ONSC 5337, 141 W.C.B. (2d) 157 at para. 19.
The Authority to Stay Proceedings
38Section 579(1) of the Criminal Code authorizes the Attorney General or instructed counsel to direct the clerk or other proper officer of the court to make an entry on the record that the proceedings are stayed. Once the direction is given, the proceeding must be stayed.
39The authority to enter a stay of proceedings is a core element of prosecutorial discretion. The authority extends to both public and private prosecutions: Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372, at para. 46. The role of the private prosecutor is parallel to, but not in substitution for, the role of the Attorney General. In the context of a pre-enquete, s. 507.1 makes this clear. Where the two roles come into conflict, the role of the Crown is paramount: Re Bradley et al and The Queen (1975), 1975 CanLII 766 (ON CA), 24 C.C.C. (2d) 482 (Ont. C.A.), at p. 490.
Judicial Review of Stays Entered under Section 579(1)
40Prosecutorial discretion is entitled to considerable deference. But it is not immune from all judicial oversight. Within the core, such as the discretion to direct a stay of proceedings, decisions are reviewable only for abuse of process: R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 48; Krieger, at para. 32; R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566, at para. 31.
41Abuse of process refers to Crown conduct that is egregious and seriously compromises the fairness of trial proceedings or undermines the integrity of the justice system: Anderson, at paras. 49-50. The burden of proof for establishing abuse of process lies on the party who claims it. The standard of proof required is proof on a balance of probabilities: Anderson, at para. 52. See also, R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 69.
The Pre-enquete
42The function of the pre-enquete is to determine if the process of the court, whether a summons or warrant, should issue to compel the person named in the information to attend before a justice to answer to the offences charged in the information: R. v. McHale, 2010 ONCA 361, 256 C.C.C. (3d) 26, at paras. 10-11, 45, leave to appeal refused, [2010] S.C.C.A. No. 290; R. v. Vasarhelyi, 2011 ONCA 397, 272 C.C.C. (3d) 193, at para. 37, leave to appeal refused, [2011] S.C.C.A. No. 470. This decision must be based on the allegations of the private informant and any evidence adduced at the hearing: Vasarhelyi, at para. 37.
43Under s. 507.1(3) of the Criminal Code, the Attorney General, without being deemed to intervene in the proceedings, is entitled to:
i. a copy of the private information in Form 2;
ii. reasonable notice of the pre-enquete hearing;
iii. the opportunity to attend the pre-enquete;
iv. the opportunity to cross-examine witnesses; and
v. the opportunity to call witnesses and present evidence at the hearing.
See, McHale, at para. 47. See also, s. 11(d) of the Crown Attorneys Act and Bradley, at p. 490.
The Authority to Direct Entry of a Stay at the Pre-enquete
44Section 579(1) of the Criminal Code permits the Attorney General or instructed counsel to direct entry of a stay “at any time after any proceedings in relation to an accused or defendant are commenced…”. The term “proceedings” is not defined. Modified by the indefinite adjective “any”, it would seem to take in a vast expanse of proceedings. Likewise, “in relation to an accused”. Nor is “accused” defined.
45The statutory language “at any time after any proceedings in relation to an accused…are commenced” has been interpreted to mean “any time after an information has been laid”: McHale, at paras. 85-87, 89; Vasarhelyi, at para. 49; R. v. Pardo (1990), 1990 CanLII 10957 (QC CA), 62 C.C.C. (3d) 371 (Que. C.A.), at pp. 373-74; Klippenstein v. R., 2019 MBCA 13, 152 W.C.B. (2d) 551, at para. 7, leave to appeal refused, 2019 CarswellMan 783; R. v. Linamar Holdings Inc., 2007 ONCA 873, 76 W.C.B. (2d) 120, at paras. 9-10, leave to appeal refused, [2008] S.C.C.A. No. 33. Entry of a stay need not await a determination to issue process.
The Principles Applied
46I would not give effect to this ground of appeal.
47To begin, I am satisfied that what the Crown sought in response to the appellant’s motion to quash the stay and order the conduct of the pre-enquete fell within the sweep of Rule 34.02.
48Among the jurisdictional sources invoked by the appellant was the authority of a judge of the superior court of criminal jurisdiction to grant orders in lieu of the prerogative writs of certiorari (to quash the stay as entered without jurisdiction) and mandamus (to compel the conduct of the pre-enquete). These remedies are available on applications under Rule 43 of the CPR.
49The Crown’s response to the appellant’s application was to seek its summary dismissal under Rule 34.02. The judge who heard the Crown’s application was the motion judge on the appellant’s application, thus “the presiding judge” for the purposes of Rule 34.02. Accordingly, the summary dismissal authority was available to the motion judge in connection with the appellant’s original application which was an “other application” for the purposes of the rule. The remedy afforded by Rule 34.02 – summary dismissal – could be granted if, but only if, the Crown met the standard required on the basis of the materials filed on the original motion.
50Although Rule 34.02 appears in Part III of the CPR, Trial Procedure and Evidence, its language signals a broader application. This is consistent with the terms “other application” in the Rule. The term “application” is exhaustively defined in Rule 1.03 as “a proceeding commenced by notice of application in Form 1”. It is of no moment whether the enabling legislation or other authority describes the proceedings as an application or a motion. The term “proceeding” includes an application or other hearing.
51This construction of Rule 34.02 is also in harmony with the general principle underlying the CPR expressed in Rule 1.04 and the jurisprudence advocating use of the case or trial management power to weed out unmeritorious claims by summary process: see, Cody, at para. 38.
52Satisfied that the provisions of Rule 34.02 were available to the motion judge at the instance of the Crown, I will now explain why I am satisfied that the motion judge did not err in dismissing the appellant’s application in the exercise of his authority under Rule 34.02.
53The appellant’s application, reduced to its essentials, sought two orders. He asked that the stay directed by the Crown be set aside. And he sought an order that a pre-enquete be held to determine whether process should issue to compel his ex-wife to answer to the charges contained in the information.
54To set aside the stay, the appellant argued that s. 579(1) of the Criminal Code does not permit entry of a stay at the direction of the Crown before a determination has been made at the conclusion of the pre-enquete that process should issue. Amongst other things, this is because there is no “accused” until that time and proceedings have not been “commenced”.
55Binding jurisprudence in this court and persuasive jurisprudence from courts of equivalent jurisdiction in other provinces hold that a stay may be entered, as here, prior to the justice hearing the allegations of the informant and the evidence of witnesses: McHale, at paras 89-90; Vasarhelyi, at para. 49; Linamar, at para. 10; Klippenstein, at para. 7; Pardo, at pp. 373-74.
56In an information laid by a private informant and received by a justice under s. 507.1(1), an informant swears that they have reasonable grounds to believe that a named person committed one or more specified offences. In plain terms, the informant accuses the named person of having committed one or more crimes. In ordinary parlance, such a person would be described as an “accused”, a person accused of crime.
57The pre-enquete falls within the language in s. 579(1) of “any proceedings in relation to an accused”. And, self evidently, there are proceedings that have been “commenced”.
58The appellant advances a second basis upon which he says the summary dismissal of his application reflects error. This has to do with the standard the motion judge applied in failing to set aside the entry of the stay as a flawed exercise of the Crown’s discretion under s. 579(1).
59This claim of error also fails.
60The claimant must establish a proper evidentiary foundation before a court embarks on an inquiry into the exercise of prosecutorial discretion. This respects the presumption that prosecutorial discretion is exercised in good faith. It also accords with the principle that the prosecutorial authorities are not required to provide reasons for their decisions, absent evidence of bad faith or improper motives: Anderson, at para. 55.
61In this case, Crown counsel provided lengthy reasons for entry of the stay. The record is bankrupt of any evidence of bad faith or improper motives.
62For these reasons, I would reject the first ground of appeal.
Ground #2: The Timing of Entry of the Stay
63The second ground of appeal alleges that the motion judge erred in failing to set aside the stay because it was entered prematurely at the outset of the pre-enquete.
64This claim of error was an essential component of the first ground of appeal. It was rejected there, as it is here, on the basis of binding authority in this province and persuasive authority from courts of equivalent jurisdiction in other provinces. Nothing more need be said.
Disposition
65For these reasons, I would dismiss the appeal.
Released: February 19, 2021 “GRS”
“David Watt J.A.”
“I agree. G.R. Strathy C.J.O.”
“I agree. B. Zarnett J.A.”
