R. v. McHale, 2010 ONSC 887
CITATION: R. v. McHale, 2010 ONSC 887
DIVISIONAL COURT FILE NO.: DC10-84JR Hamilton
DATE: 2010-02-05
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
James Ramsay J.
BETWEEN:
Her Majesty the Queen in right of Ontario
Respondent
– and –
Gary McHale
Applicant
Mr Andrew Bell for the respondent
The applicant in person
HEARD: 2010-02-05
Endorsement
1This is a motion brought by both parties to remit an application for judicial review to the Superior Court of Justice. Under s.21 (3) of the Courts of Justice Act, I heard it sitting alone.
2The applicant sought an extraordinary remedy to challenge the Crown’s decision to withdraw criminal charges brought by the applicant as private prosecutor against Floyd Montour and Ruby Montour. The decision by the Attorney General to end a criminal prosecution is not subject to judicial review except in cases of flagrant impropriety: Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 SCR 372. The applicant is alleging flagrant impropriety.
3The hearing commenced before Marshall J., who heard some evidence. Since then, Marshall J. has died and the application will have to be heard over again. The matter returned before another judge, who, of his own motion, transferred it to the Divisional Court, in view of the provisions of s.6 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.
4I agree with both parties that the present application is criminal in nature. The provincial legislation has no application: R. v. Storgoff, [1945] S.C.R. 526. Under Rule 43 of the Criminal Proceedings Rules, the application should be heard by a judge of the Superior Court in Cayuga.
5The motion is granted. Further proceedings in the Divisional Court are stayed. I direct that the matter be returned to the Superior Court at Cayuga. The parties may arrange a hearing date with the office of the local administrative judge at Cayuga.
6There is no reason to depart from the usual practice in criminal matters with respect to costs. Accordingly, there will be no order as to costs.
James Ramsay J.
Released: 2010-02-05