Court of Appeal for Ontario

Date: 2025-04-22
Docket: COA-24-CR-0704
Coram: Miller, Zarnett and Madsen JJ.A.

Between

The Attorney General of Ontario
Respondent

and

Doug Lloyd
Appellant

Appearances:
Cameron Cotton-O’Brien and James Gilbert, for the appellant
Katie Doherty, for the respondent Crown

Heard: 2025-04-11

On appeal from the order of Justice Suhail A.Q. Akhtar of the Superior Court of Justice, dated July 2, 2024, with reasons reported at 2024 ONSC 3757, dismissing an application for certiorari with mandamus and prohibition in aid.

Reasons for Decision

[1] After an unsuccessful campaign of civil litigation whereby the appellant alleged that Bell Canada had infringed patents belonging to the appellant’s company, the appellant filed the first of three private prosecutions claiming that Bell Canada committed fraud. The first was stayed by the Crown and the second was dismissed by a justice of the peace. The parties agreed to adjourn the pre‑enquete hearing for the third private prosecution — in which a Bell Canada in-house counsel was the proposed defendant — when the justice of the peace expressed concerns about a possible apprehension of bias given that he had presided over the previous dismissal. After leaving the courtroom and discussing the private prosecution with Mr. Lloyd privately, the Crown decided to stay the private prosecution.

[2] The Crown attorney explained to the justice of the peace that the decision to stay was based on two considerations: (1) there was no reasonable prospect of conviction; and (2) even if there had been a fraud, which was not conceded, a criminal prosecution was not in the public interest because this was, at its root, a civil dispute.

[3] Mr. Lloyd sought to challenge the Crown’s exercise of its prosecutorial discretion through orders of mandamus and certiorari on judicial review in the Superior Court, on the basis that the reasons given established abuse of process. He was unsuccessful and the application was dismissed.[^1]

[4] We dismissed the appeal at the conclusion of oral argument with reasons to follow. These are our reasons.

[5] We see no error in the conclusion of the application judge. As this court recently reiterated in R. v. Mivasair, 2025 ONCA 179, it is well established that an exercise of prosecutorial discretion is only reviewable on the basis of abuse of process. The Supreme Court, in R. v. Babos, 2014 SCC 16, para 31, has explained that abuses of process warranting a stay of proceedings can be categorized as: (1) those that compromise the fairness of the trial process (the main category) and (2) those that do not, but nevertheless undermine the integrity of the justice system in some other way (the residual category). The standard for establishing an abuse of process under either category is the same: the conduct complained of must be egregious: R. v. Anderson, 2014 SCC 41, para 50.

[6] The appellant argues, first, that it was an abuse of process for the Crown not to consider expert engineering evidence before making the decision that fraud could not be established through the alleged acts of Bell Canada’s in-house counsel. The application judge made no error in rejecting this argument. He appropriately found that even if the Crown was wrong in this regard, it was not an abuse of process to come to this conclusion without having consulted an expert or to not consider evidence that the appellant thinks should have been considered. Second, the appellant argues that it was an abuse of process for the Crown to stay the prosecution on public interest grounds, because, categorically, it would be egregious to stay a prosecution in any case where there was a reasonable prospect of conviction. Even allowing the premise that there was a reasonable prospect of conviction in this case, that is not the law, and the application judge made no error in rejecting this argument.

[7] The application judge understood the law of abuse of process and applied it without error. Accordingly, there is no basis to interfere with his decision that an extension of time to file the application for judicial review should not be granted.

Disposition

[8] The appeal is dismissed.

“B.W. Miller J.A.”
“B. Zarnett J.A.”
“L. Madsen J.A.”

[^1]: The dismissal, more precisely, was of an application for an extension of time to bring an application for judicial review, as the appellant was a day late. The application judge decided that an extension of time was not warranted. That determination turned on his conclusion that the merits of the application were weak. He further held that even if he had permitted the extension of time, he would have dismissed the application on its merits. The appeal before us is therefore an appeal of a dismissal of an application for an extension of time.