COURT FILE NO.: CR-23-90000016-00MO DATE: 20230427 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – DAVID MIVASAIR AND REHAB NAZZAL

Counsel: D. Quayat, for the Respondent S. Martinez and J. Philpot, for the Applicants

HEARD: 10 April 2023

S.A.Q. AKHTAR J.

Factual Background and Overview

Introduction

1This is an application for certiorari and mandamus brought as a result of a private prosecution terminated by the respondent, the Public Prosecution Service of Canada (“PPSC”), on the grounds of no reasonable prospect of conviction.

2When this matter first appeared at the Superior Court of Justice, I asked the parties to provide materials to determine the question of standing and jurisdiction.

3For the following reasons, the application for certiorari and mandamus is dismissed.

Background Facts

4Section 11 of the Foreign Enlistment Act, R.S.C., 1985, c. F-28 (“FEA”) makes it an offence for anyone within Canada to recruit or otherwise induce another person to enlist or accept any commission or engagement in the Armed Forces of any foreign state.

5The applicants allege that, contrary to the FEA, individuals have been recruited within Canada since 2021 to enrol for non-combat activities within the Israeli Armed Forces. The applicants claim that some of the recruitment efforts were spearheaded by Sar-El Canada, an organisation linked to the Israeli Armed Forces.

6The applicants became concerned about these activities because of their view that the Israeli Armed Forces have committed human rights abuses against Palestinians.

7Believing the Canadian government would not act to address these allegations because of its relationship with his Israeli Armed Forces, the applicants decided to launch a private prosecution charging Sar-El Canada under s. 11(1) of the FEA.

8On 22 September 2022, following a pre-enquette hearing before a Justice of the Peace, the applicants succeeded in having process issued.

9At that hearing, counsel for the respondent indicated they would scrutinise the prosecution.

10On 13 December 2022, the respondent, wrote to the applicants informing them that it would be intervening in the prosecution and terminating it on the grounds that there was no reasonable prospect of conviction. In the same letter, the respondent’s counsel explained that it had determined “[T]here is no evidence that Sar-El Canada recruits or otherwise induces any person or body of persons to enlist or to accept any commission or engagement in the armed forces of Israel or of recruitment or inducing any persons to enlist or accept any commission in the Armed Forces of Israel”. The PPSC provided detailed reasons as to why an essential element of the charge - a formal relationship or agreement between a volunteer and the Israeli Armed Forces - could not be proven.

11On 14 December 2022, the matter returned to court. The respondent formally took carriage of the prosecution and informed the court that it was withdrawing the charges. The Justice of the Peace accordingly marked the information as withdrawn at the respondent’s direction.

Positions of the Parties

12The applicants allege that the respondent’s termination of the prosecution was influenced by partisan interests and that its purported reason for withdrawing the charges is “demonstrably false and disingenuous”.

13The applicants submit that the respondent knowingly trespassed on a matter reserved for the judiciary when deciding whether Sir-El Canada engaged in the process of recruitment in Canada. They argue that the respondent inappropriately substituted its own view of the issue when making the threshold decision to terminate the prosecution.

14The applicants further claim that the respondent’s conduct amounts to an abuse of process which requires the quashing of the withdrawal order made by the justice of the peace and an order of mandamus directing the Crown to continue the prosecution.

15The applicant argues that this abuse of process confers standing permitting them to challenge the Crown’s decision.

16On the other hand, the respondent submits that the applicants have no standing. In the alternative, the respondent argues that even if the applicants had standing, the respondent’s decision to withdraw the charges are not reviewable absent an abuse of process which the applicants cannot demonstrate.

Analysis

Do the Applicants Have Standing?

17In support of their argument on standing, the applicants rely on the Supreme Court of Canada’s comments in R. v. Awawish, 2018 SCC 45, [2018] 3 S.C.R. 87 at para. 12:

Certiorari is available to third parties in a wider range of circumstances than for parties, given that third parties have no right of appeal. In addition to having certiorari available to review jurisdictional errors, a third party can seek certiorari to challenge an error of law on the face of the record, such as a publication ban that unjustifiably limits rights protected by the Canadian Charter of Rights and Freedoms (see Dagenais), or a ruling dismissing a lawyer’s application to withdraw (Cunningham v. Lilles, 2010 SCC 10, [2010] 1 S.C.R. 331). The order has to have a final and conclusive character vis-à-vis the third party (R. v. Primeau, [1995] 2 S.C.R. 60, at para. 12). [emphasis added]

18The applicants assert that based on these comments and cases such as R. v. Amiri, 2021 ONSC 7961, at paras. 30-35; Stoughton v. Canada, 2021 BCSC 638; and Energy Probe v. Canada (Atomic Energy Control Board and Hydro One), 1984 F.C. 227, at paras. 29-36, standing is acquired where a non-party is “aggrieved” by the lower court order.

19For example, in Stoughton, the court found that members of the Hells Angels’ chapter who sought to quash a search warrant of their clubhouse were “aggrieved” because they could demonstrate “an identifiable legal interest in the premises searched or the articles seized” (Stoughton, at para. 33).

20A number of difficulties arise with the applicants’ arguments.

21First, with reference to the Supreme Court of Canada’s decision in Awawish, it is unclear what constitutes the error of law on the face of the record other than the judge marking the charges as withdrawn at the direction of the Crown. This cannot be an error on the face of the record as the judge was lawfully obliged to accede to the respondent’s request. In other words, there is no error on the face of the record.

22Secondly, there is no “final and conclusive” order to be quashed as the presiding judge made no order. As noted, he simply acceded to the respondent’s direction to have the information withdrawn.

23Third, none of the cases cited by the applicants involve an application to overturn the exercise of Crown discretion to withdraw charges. Indeed, other cases, without deciding the issue, have expressed serious concerns about a private prosecutor seeking to reverse a stay entered by the Crown when it has assumed carriage of the prosecution: Ahmadoun v. Ontario (Attorney General), 2012 ONSC 955 at para. 6; Currie v. Ontario (Attorney General), 2017 ONCA 266 at para. 18.

24Fourth, it is also hard to understand how the applicants can complain of being “aggrieved” parties when they were not the subject of the order. Their “grievance” arises out of a disagreement with the respondent’s decision and their desire to prosecute those that they perceived as offenders.

25Fifth, the applicant’s argument that “it is a reasonable necessity” that private prosecutors be granted standing to bring certiorari applications reveals a misunderstanding of the role of the Crown in the justice system.

26In McHale v. Ontario (Attorney General), 2010 ONCA 361, Watt J.A. revisited the principles underlying the dual roles of the private prosecutor and the Attorney General. Citing Re Bradley et al. and The Queen (1975), 9 O.R. (2d) 161, he made the following observations at paras. 41-42:

In Bradley, private complainants had laid informations charging three persons with the summary conviction offence of intimidation arising out of a labour dispute. At a court appearance after the strike had settled, an "agent" for the complainants sought to have the informations withdrawn. An Assistant Crown Attorney intervened, and asked for an opportunity to speak to the complainants before deciding whether to proceed with or withdraw the charges. The accused unsuccessfully sought prohibition. When the case returned to the trial court, the Assistant Crown Attorney made it clear that the charges would not be withdrawn. The accused again sought prohibition. The application was dismissed on the basis that, once the Attorney General had assumed responsibility for the prosecution, the Crown had the exclusive right to determine whether the charges would be withdrawn or prosecuted, whether the informant was a state agent or private complainant.

The accused appealed to this Court. In giving the judgment of the Court dismissing the appeal, Arnup J.A. said at p. 169:

The Attorney-General, and his agent the Crown Attorney, represent the Sovereign in the prosecution of crimes. The role of the private prosecutor, permitted by statute in this country, is parallel to but not in substitution for the role of the Attorney-General, and where the two roles come into conflict, the role of the Crown's prosecutor is paramount, where in his opinion the interests of justice require that he intervene and take over the private prosecution.

Although the circumstances in Bradley depict the obverse of the coin displayed here, this Court's decision confirms the untrammelled right of the Attorney General to intervene in a private prosecution and to determine its future course - prosecution or withdrawal. The intervention there occurred after process had issued, but the plenary authority of the Attorney General was not made contingent upon the issuance of process.

27These comments underscore the principle that only the State can have the final word on whether a person is charged with an offence and forced to undergo the stress, pressure, and stigma of criminal proceedings. That ultimate responsibility must remain with the Crown and not be undermined by a private party or entity.

28If the applicants were correct, the courts would be faced with numerous applications from dissatisfied parties with meritless cases ended by the Crown after it had conducted an objective review of the case and concluded – on a test with a low threshold – that there was no reasonable prospect of conviction or that it was not in the public interest to continue. Those charged by private parties would endure the prospect of continued proceedings in the criminal justice system. It is somewhat ironic that the applicants have grounded their claim on the basis of an abuse of process: it is difficult to imagine a greater abuse of process in allowing a prosecution to continue under these circumstances. There is no public policy argument that outweighs the negative ramifications of allowing this form of extraordinary remedy.

Abuse of Process

29Although I have concluded that the applicants lack standing, I would also address their argument that in withdrawing the charges, the Crown committed an abuse of process.

30As the applicant‘s acknowledge, prosecutorial discretion can only be reviewed for an abuse of process.

31In R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, the Court expanded the definition of “core” prosecutorial discretions found in Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372 by its comments, at para. 44:

In an effort to clarify, I think we should start by recognizing that the term "prosecutorial discretion" is an expansive term that covers all "decisions regarding the nature and extent of the prosecution and the Attorney General's participation in it" (Krieger, at para. 47). As this Court has repeatedly noted, "[p]rosecutorial discretion refers to the discretion exercised by the Attorney-General in matters within his authority in relation to the prosecution of criminal offences" (Krieger, at para. 44, citing Power, at p. 622, quoting D. Vanek, "Prosecutorial Discretion" (1988), 30 Crim. L.Q. 219, at p. 219. This includes the decision to “the discretion to enter a stay of proceedings in either a private or public prosecution, as codified in the Criminal Code, R.S.C. 1985, c. C-46, s. 579”: Krieger, at para. 46.

32There can be no denying therefore that the decision to terminate a prosecution as in the instant case was an exercise of prosecutorial discretion subject to review only by a finding of an abuse of process.

33The doctrine of abuse of process was discussed in R. v. Power, [1994] 1 S.C.R. 601, where, at para. 12, they commented:

The Attorney General's role in this regard is not only to protect the public, but also to honour and ex-press the community's sense of justice. Accordingly, courts should be careful before they attempt to "second-guess" the prosecutor's motives when he or she makes a decision. Where there is conspicuous evidence of improper motives or of bad faith or of an act so wrong that it violates the conscience of the community, such that it would genuinely be unfair and indecent to proceed, then, and only then, should courts intervene to prevent an abuse of process which could bring the administration of justice into disrepute. Cases of this nature will be extremely rare.

34In R. v. Anderson, the Supreme Court of Canada summarised the description of conduct amounting to an abuse of process in the following way citing its earlier decisions in Krieger v. Law Society of Alberta and R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566:

The jurisprudence pertaining to the review of prosecutorial discretion has employed a range of terminology to describe the type of prosecutorial conduct that constitutes abuse of process. In Krieger, this Court used the term “flagrant impropriety” (para. 49). In Nixon, the Court held that the abuse of process doctrine is available where there is evidence that the Crown’s decision “undermines the integrity of the judicial process” or “results in trial unfairness” (para. 64). The Court also referred to “improper motive[s]” and “bad faith” in its discussion (para. 68).

Regardless of the precise language used, the key point is this: abuse of process refers to Crown conduct that is egregious and seriously compromises trial fairness and/or the integrity of the justice system. Crown decisions motivated by prejudice against Aboriginal persons would certainly meet this standard.

In sum, prosecutorial discretion is reviewable solely for abuse of process. The Gill test applied by the Newfoundland and Labrador Court of Appeal was developed at a time when courts were struggling with the post-Krieger “core” versus “outside the core” dichotomy. To the extent the Gill test suggests that conduct falling short of abuse of process may form a basis for reviewing prosecutorial discretion, respectfully, it should not be followed.

35Notwithstanding the repeated expressions of abuse of process by the applicants, there is nothing before this court that constitutes conduct of that description.

36In a letter dated 13 December 2022, the respondent informed the applicants’ lawyers of its decision to withdraw the charges because it had determined there was no reasonable prospect of conviction. As previously noted, it set out in explicit and clear terms the absence of evidence necessary to support the foundation of the charges. There is nothing before this court to demonstrate any flagrant impropriety or egregious conduct that undermines trial fairness.

37What emerges from the applicants’ position amounts to a disagreement with the Crown’s decision to stay the charges. Generally speaking, the prosecutorial discretion is immune from review absent evidence of an abuse of process.

38I also do not agree with the applicants’ alternative argument that the application should be granted even in the absence of evidence of bad faith. In Anderson, at paras. 52-55, the Supreme Court of Canada made clear that a proper evidentiary threshold burden had to be met before embarking on an enquiry behind the exercise of prosecutorial discretion.

39Finally, although I have noted the absence of any flagrant impropriety on the part of the Crown which might constitute an abuse of process, I would add that the entire concept of abuse of process should not apply to a decision to discontinue a prosecution: to echo my earlier comments, I cannot imagine a greater abuse of process than forcing the Crown to prosecute a party when it has taken the view that there is no reasonable prospect of conviction.

40In this regard, I agree with the comments of Dambrot J. in Perks v. Ontario (Attorney General) [1998] O.J. No. 421 (Gen Div), at para. 11, aff’d where he remarked:

Failing that, however, I can at present imagine no other situation which would call for the extraordinary intervention of a judge to place an accused in jeopardy, which generally involves potential penal consequences, in contradiction to the express view of the Attorney General. As L'Heureux-Dubé noted in Power, at p. 19, "In our system, a judge does not have the authority to tell prosecutors which crimes to prosecute or when to prosecute them." Nor in my view, does a judge have the authority to interfere with a prosecutor's decision to stop a prosecution.

41For these reasons, the application for certiorari and mandamus is dismissed.

S.A.Q. Akhtar J.