Court File and Parties
Court File No.: CR-24-10000044-00MO Date: 2024-07-02 Ontario Superior Court of Justice
Between: His Majesty The King – and – Doug Lloyd
Counsel: D. Hogan, for the Crown C. Cotton O’Brien and J. Gilbert, for Mr. Lloyd
Heard: 31 May 2024
S.A.Q. Akhtar J.
Factual Background and Overview
Introduction
[1] This is an application to: (1) extend the time to file an application for certiorari and mandamus and (2) seeking those orders to judicially review a Crown Attorney’s decision to stay a private prosecution.
[2] The applicant argues that his application to extend the time for filing satisfies the test set out in R. v. Menear (2002), 2002 ONCA 7570, 162 C.C.C. (3d) 233, and should be heard. He further argues that in staying the private prosecution, the Crown Attorney’s actions constituted an abuse of process remedied only by reversing its decision to stay the prosecution and ordering it to continue. The Crown opposes both applications.
Background Facts
[3] The background to this application is a civil suit launched by the applicant against Bell Canada alleging it infringed patents belonging to Media Tube, the applicant’s company. The litigation stems from events beginning in 2004 which resulted in two separate legal actions.
[4] The first, in 2017, led to a Federal Court trial with the applicant claiming patent infringement. The applicant lost and was unsuccessful on appeal. In 2023, the applicants brought a second action suing Bell for infringing the same patent but in a different manner. That action was also dismissed by the Superior Court of Justice.
[5] In November 2023, the applicant filed a private prosecution alleging Bell Canada had committed a fraud in the Federal Court trial litigation. A pré-enquête hearing was held on 30 November 2023 and the Crown Attorney present at the proceedings stayed the proceedings. The applicant filed a second private information against Bell Canada but that matter was dismissed by Justice of the Peace Buchanan on 23 December 2023 who declined to issue process on the basis that the information did not name specific persons.
[6] A third attempt was made on 12 March 2024. This time the applicant specifically named a lawyer who worked for Bell as a party involved in the alleged fraud. When the applicant attended the Ontario Court of Justice he discovered that Justice of the Peace Buchanan was again presiding in the court. The Justice of the Peace raised the possibility of a conflict and the Crown Attorney, Anna Stanford, agreed it was not appropriate that he hear the application.
[7] Ms. Stanford, suggested an adjournment or, alternatively, finding another judicial officer to decide the new application. The applicant told the court that he would prefer an adjournment and might need legal advice. Ms. Stanford asked that the matter be stood down so that she could speak to the applicant. The court agreed to her request and, in the meantime, asked that a new date be found for the matter.
[8] Ms. Stanford returned to court whereas the applicant did not. She made the following comments:
MS. STANFORD: Alright, Mr. – I have spoken to Mr. Lloyd about this pre-enquête, the information. that’s before the court, I’ve asked him some questions about some concerns that I had about reasonable prospect of conviction and public interest.
THE COURT: Yes.
MS. STANFORD: Uh, those questions – the answers to those questions didn’t satisfy me as the Crown that there was reasonable prospect of conviction in this case nor that there’s public interest in this case, and I’ll make very brief comments about that. I’ve informed Mr. Lloyd of that; he’s chosen not to be here for the comments that I’m going to put on the record. I am asking at this time that this - these charges be stayed. The reason I’m doing that is it is my view that the materials that Mr. Lloyd has put before the court do not rise to the level of the Crown’s ability to prove this case beyond a reasonable doubt, particularly in relation to, if a fraud exists, and I’m not indicating – I’m not conceding that one did exist, but if a fraud did exist that Ms. R. as in-counsel, as a lawyer for Bell, not a fibre optic specialist, not an engineer, would have the requisite knowledge to establish that beyond a reasonable doubt, so that’s the first issue with respect to reasonable prospect of conviction.
THE COURT: Yes.
MS. STANFORD: The second issue I have is with respect to the public interest in this case, as I think Your Worship is probably aware, given the – the materials that are before the court, Mr. Lloyd has a long history of civil litigation with Bell Canada, dating back to 2013. I’ve had a chance in preparation for this hearing to review the numerous decisions that have, in the civil courts, that have – that Media-Tube have not been successful in litigating and it is my view that the – to put it simply, there is not public interest in bringing this particular dispute into the criminal courts, this is a civil matter, that has been litigated extensively in the civil courts and the resources that would be required to litigate this in the civil courts even if we did have reasonable prospect of conviction would be enormous and frankly, this matter, in my view, belongs squarely in the civil courts and not in the criminal courts and in light of all that, I’m asking that these charges be stayed.
[9] On 13 March 2024, the applicant was advised, by email, that the matter had been stayed.
[10] On the evening of 11 April 2024, the applicant sent an email to the Crown Attorney’s office containing an application to be made to the Superior Court of Justice seeking review of the Crown’s decision. However, the application was sent in the format used for applications in the Ontario Court of Justice. On 12 April 2024, the Crown responded by informing him that they were not accepting service. A new set of materials were filed but they were also deficient. When the applicant filed another set of materials, the Crown indicated that it would not be accepting service and the applicant would be required to file an application seeking leave to extend the time for filing.
Should the Applicant be Given Leave to Extend the Time to File?
The Test for an Extension of Time
[11] Pursuant to Rule 40.05 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7, a party has 30 days to appeal from the order that is challenged. Rule 40.03 allows a judge to extend or abridge that deadline upon application.
[12] The power to grant or refuse an extension of time to appeal is discretionary and not one that arises as of right: R. v. Roberge, 2005 SCC 48, [2005] 2 S.C.R. 469, at para. 6; Menear, at para. 20.
[13] In R. v. Closs (1998), 105 O.A.C. 392 (C.A.), Carthy J.A., in chambers, at para. 8, commented on the rarity of granting orders that extend time to appeal by stating:
It is my view that such orders should be made only in exceptional circumstances where there is a real concern that an injustice may have occurred. There are many negative consequences of having a criminal conviction and it cannot be expected that these will all be explained to an accused prior to a plea; nor should the convicted person expect the judicial system to provide a fresh start when a surprising consequence of the conviction is encountered. We must have finality except where the demands of justice dictate otherwise.
[14] In Menear, at para. 20, the court identified the following three factors to be considered when deciding whether an extension of time is justified:
(1) Has the applicant has shown a bona fide intention to appeal within the appeal period;
(2) Has the applicant has accounted for or explained the delay; and
(3) Is there merit to the proposed appeal.
[15] This list is not exhaustive and the court “may take into consideration other factors such as whether the consequences of the conviction are out of all proportion to the penalty imposed, whether the Crown will be prejudiced and whether the applicant has taken benefit from the judgment. In the end, the main consideration is whether the applicant has demonstrated that justice requires that the extension of time be granted”: Menear, at para. 21; R. v. Ansari, 2015 ONCA 891, 128 O.R. (3d) 511, at para. 23.
[16] In the circumstances of this case, the first limb of the Menear test is inextricably linked to the ultimate outcome. In other words, an analysis of the first limb requires a deep dive into the merits of the case. Accordingly, it only makes sense to deal with the merits of the case. If there is merit, the application for leave should be granted as well as the application for certiorari and mandamus. On the other hand if there is no merit, the ultimate application fails.
Was There an Abuse of Process?
Deference to the Crown’s Discretion
[17] It is trite law that the Crown’s prosecutorial discretion can only be judicially reviewed if a party can establish its conduct constitutes an abuse of process: R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 63. In Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372, the Supreme Court of Canada found that the “core” elements of prosecutorial discretion could only be reviewed if the actions of the prosecutor amounted to such circumstances of flagrant impropriety or in actions for malicious prosecution: Krieger, at para. 49.
[18] In Anderson, the court appeared to expand the scope of prosecutorial decisions that could only be challenged on an abuse of process basis by eliminating the distinction between “core” and “non-core” elements of prosecutorial discretion. After acknowledging the comments in Krieger and the narrow definition of prosecutorial discretion set out in that case, the court commented 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 (emphasis added)). While it is likely impossible to create an exhaustive list of the decisions that fall within the nature and extent of a prosecution, further examples to those in Krieger include: the decision to repudiate a plea agreement (as in R. v. Nixon, 2011 SCC 34); the decision to pursue a dangerous offender application; the decision to prefer a direct indictment; the decision to charge multiple offences; the decision to negotiate a plea; the decision to proceed summarily or by indictment; and the decision to initiate an appeal. All pertain to the nature and extent of the prosecution. As can be seen, many stem from the provisions of the Code itself, including the decision in this case to tender the Notice.
[19] The court clarified the confusion over the terminology of “core” and “non-core” that might have arisen in cases such as R. v. Gill, 2012 ONCA 607, 112 O.R. (3d) 423, at paras. 50-51:
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. [Emphasis added.]
[20] Here, the parties made reference to the Court of Appeal for Ontario’s use of the term “core” in R. v. Glegg, 2021 ONCA 100, 400 C.C.C. (3d) 276, when referring to prosecutorial discretion. I take that use of the term to mean that the prosecution decisions made in that case were part of its core functions as opposed to the court using the Gill test and ignoring the comments in Anderson. In any event, there is no dispute between the parties that in this case, the applicant must establish that the decision to stay proceedings was an abuse of process: Glegg, at paras. 40-41;
Was There An Abuse of Process?
[21] The definition of an abuse of process appears to be constant. Decisions that are part of the Crown’s prosecutorial discretion are not subject to court review unless the Crown’s conduct is “egregious and seriously compromises trial fairness and/or the integrity of the justice system”: Anderson at para. 50. The conduct that will give rise to an abuse of process has been described as “flagrant impropriety” and one that is “egregious and seriously compromises the fairness of trial proceedings or undermines the integrity of the justice system”: Perks v. Ontario (1998), 57 O.T.C. 21 (Ont. S.C.), at para. 8, aff’d , 116 O.A.C. 399; Glegg, at para. 41.
[22] Ms. Stanford’s conduct in this case does not come anywhere close to this description. She made clear that she had reviewed the case and informed the applicant of the decision to enter a stay. That was entirely within the Crown’s purview.
[23] Nor do either of the applicant’s two grounds alleging abuse of process hold water.
[24] The applicant’s first ground, that the hearing should not have been held in front of Justice of the Peace Buchanan because of his conflict does not stand up to scrutiny because there was no hearing. Upon review of the file, Ms. Stanford took the view that the matter was to be stayed. She gave explicit reasons for her decision. Upon that declaration, s. 579(1) of the Criminal Code permits the Crown to direct a stay which was done in this case. The Justice of the Peace played no part in the decision: he simply recorded the Crown’s direction to stay the proceedings.
[25] Secondly, the fact that the applicant believed he required legal advice when told that the matter would be stayed is irrelevant when deciding whether there was an abuse of process. It is unclear how legal advice would have affected the stay of proceedings or how Ms. Stanford telling the applicant that she was going to stay proceedings undermined his ability to seek that advice. It is even less clear what an adjournment of the proceedings to obtain legal advice would have achieved.
[26] Moreover, Ms. Stanford’s advice that she was directing a stay - given during the recess - only enhanced the fairness and integrity of the proceedings. Again, there has been no explanation as to how the applicant’s ability to obtain legal advice was hampered by Ms. Stanford telling him she was going to stay the proceedings. In other words, the applicant was still free to seek legal advice and could have done so prior to the pré-enquête hearing.
[27] Notwithstanding these observations I find that none of these complaints constitute flagrant misconduct or conduct that undermines the integrity of the justice system.
[28] In the alternative, the applicant argues that state misconduct is not the only factor required to establish an abuse of process. The applicant relies on comments made in R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, where the court held that a residual category of abuse of process arises where state conduct does not impact trial fairness but risks undermining the integrity of the judicial process: Babos, at para. 31.
[29] Here, the applicant attacks Ms. Stanford’s decision to stay the proceedings because she took the view that the lawyer working for Bell was not a fibre optic specialist or an engineer and therefore would not be able to have the requisite knowledge for fraud. This conclusion, says the applicant, required the Crown to hear expert evidence before making its decision.
[30] There are significant difficulties with this argument.
[31] First, it is not the role of the courts to determine whether the Crown was correct in its assessment of reasonable prospect of conviction or should have looked at additional evidence to determine its decision. In Pereira v. Attorney General of British Columbia, 2023 BCCA 31, 477 D.L.R. (4th) 594, at para. 54, the court held that it was not the role of an application judge hearing a certiorari and mandamus application alleging abuse of process to determine whether the Crown had conducted a charge assessment decision in a negligent fashion.
[32] In other words, the Crown has a right to be wrong. The fact that it did not consider evidence that the applicant thinks it should have done does not constitute an abuse of process. To permit this as a potential ground for abuse of process would open the doors to any third party seeking to challenge a Crown withdrawal or stay by adducing evidence they claimed should impact any such decision.
[33] This argument leads into a second, more fundamental point: the purpose of the abuse of process doctrine.
[34] Although the applicant uses wording from Babos to promote his argument of a “residual category” of abuse of process of bringing the administration of justice into disrepute, the reasoning in that case does not assist him. There, the full reasons including the “residual category” are set out in para. 31:
Nonetheless, this Court has recognized that there are rare occasions — the “clearest of cases” — when a stay of proceedings for an abuse of process will be warranted (R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 68). These cases generally fall into two categories: (1) where state conduct compromises the fairness of an accused’s trial (the “main” category); and (2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the “residual” category) (O’Connor, at para. 73). The impugned conduct in this case does not implicate the main category. Rather, it falls squarely within the latter category. [Emphasis added.]
[35] In other words, the residual category in Babos defined instances where “a stay of proceedings is warranted”: Babos, at para. 32. The court was referring to conduct which would result in a court ordered stay and not, as the applicant argues, the revival or resurrection of a previously stayed prosecution.
[36] This only makes sense. The use of the power of abuse of process is focussed on the protection of the person facing the prospect of prosecution from abusive state conduct. It is not designed to create the risk or reality of prosecution for a person who would otherwise be free from state interference.
[37] In its most recent pronouncement on abuse of process in R. v. Brunelle, 2024 SCC 3, 92 C.R. (7th) 219, the Supreme Court of Canada, at paras. 27-28, set out the parameters for the finding of an abuse of process:
The law on abuse of process is well settled. The “key point” is that abuse of process “refers to Crown conduct that is egregious and seriously compromises trial fairness and/or the integrity of the justice system” (R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 50). As the preceding passage suggests, two types of state conduct meet the threshold for establishing abuse of process: conduct that compromises trial fairness (“main category”) and conduct that, without necessarily threatening the fairness of the accused’s trial, nevertheless undermines the integrity of the justice system (“residual category”) (Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, at para. 89; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 55; R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566, at para. 36; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31; see also Brind’Amour v. R., 2014 QCCA 33, at para. 53).
While there is no actual “right against abuse of process” in the Charter, different guarantees will be engaged depending on the circumstances (R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 73). Abuse of process in the main category engages the Charter provisions aimed primarily at protecting trial fairness for accused persons, namely ss. 8 to 14, as well as the principles of fundamental justice set out in s. 7. Abuse of process in the residual category, on the other hand, engages only the principles of fundamental justice in s. 7, which protect accused persons from any state conduct that, while not caught by ss. 8 to 14, is nevertheless unfair or vexatious to such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the justice system (O’Connor, at para. 73; Tobiass, at para. 89; Regan, at para. 50; Nixon, at para. 41; Babos, at para. 31). [Emphasis added.]
[38] Here, the applicant seeks a process that would result in the removal of the protection of accused persons from state conduct. My colleague Code J. in Ahmadoun v. Attorney General (Ontario), 2012 ONSC 955, 281 C.C.C. 93d) 270, at para. 8, described this type of position as seeking to “turn the ‘abuse of process’ doctrine on its head”.
[39] I repeat my observation made in R. v. Misavair, 2023 ONSC 2506, at para. 39, that I cannot imagine a greater abuse of process than forcing the Crown to continue a prosecution when it has determined that there is no reasonable prospect of securing a conviction.
[40] I also note that other courts have expressed significant doubts about a private prosecutor seeking to overturn a stay directed by the Crown when it assumed carriage of the prosecution: see Currie v. Ontario (Attorney General), 2017 ONCA 266, 376 C.R.R. (2d) 370, at para. 18.
[41] Finally, I would also add that Ms. Stanford explained that in addition to a lack of a reasonable prospect of conviction, she also felt that the prosecution was not in the public interest.
[42] In the result, I find that since the application is without merit, I would deny leave to extend the filing time for appeal. However, even if the Menear test had been satisfied, I would, for the reasons set out above, dismiss the application.
S.A.Q. Akhtar J. Released: 2 July 2024
