R. v. McHale, 2010 ONCA 361

CITATION: R. v. McHale, 2010 ONCA 361

DATE: 20100517

DOCKET: C50822

COURT OF APPEAL FOR ONTARIO

Winkler C.J.O., Goudge and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Gary William McHale

Respondent

John Patton, for the appellant

Gary McHale, acting in person[^1]

Heard: January 14, 2010

On appeal from the decision of the Honourable Justice T. David Marshall of the Superior Court of Justice dated July 2, 2009, directing that a justice of the peace conduct a hearing under s. 507.1 of the Criminal Code on several charges contained in informations sworn by Gary McHale, with reasons reported at (2009), 2009 100207 (ON SC), 251 C.C.C. (3d) 283.

Watt J.A.:

[1] Gary McHale alleged that three named persons committed a crime. A justice of the peace concluded that the allegations met the Criminal Code requirements and received the sworn information. A Crown Attorney decided that it was not in the interests of justice to require those persons alleged to have committed the offences to appear in court to answer to the charges. The Crown Attorney withdrew the charges before any inquiry into the issuance of process began.

[2] This appeal requires us to examine the scope of the Attorney General’s authority to intercede in proceedings initiated by a private informant. In particular, our task is to decide whether the withdrawal here was timely or premature.

[3] In my view, for the reasons I will develop, the withdrawal here was premature. I would dismiss the appeal.

THE STATUTORY SCHEME

Introduction

[4] A helpful foundation for the discussion that follows is an overview of the statutory scheme for the initiation and conduct of private prosecutions of indictable offences under the Criminal Code. The relevant provisions have been included as Appendix “A” to these reasons.

The First Step: Receipt of the Information

[5] Anyone who has reasonable grounds to believe that another person has committed an indictable offence may lay an information in writing and under oath before a justice of the peace under s. 504 of the Criminal Code. By its use of the expansive term “any one”, s. 504 applies to everyone who lays an information (“informant”), including private citizens (“private informant”), peace and public officers, the Attorney General and the Attorney General’s agents (collectively “law enforcement informants”).

[6] A private informant who wants to lay an information before a justice of the peace must complete a standard form for submission to the justice. The private informant must provide sufficient details of the alleged offence to permit an information to be drafted, and list the names, addresses and telephone numbers of the witnesses whose evidence will be relied upon to establish the truth of the informant’s allegations. The private informant must also indicate whether the police have investigated the offence alleged and describe any prior attempts the informant has made to lay an information or have process issued as a result.

[7] The justice reviews the portion of the form that the private informant has completed to determine whether the allegations made satisfy the Criminal Code requirements and oblige the justice to receive the information. Where the justice is satisfied that the Criminal Code requirements have been met, she or he will direct the preparation of an information and have the private informant swear an oath or affirm the truth of its contents. Where the allegations of the private informant do not meet the demands of s. 504, the justice is not entitled to receive the information.

[8] A justice who receives an information laid by a private informant, and determines its compliance with s. 504, selects a date upon which a hearing will be conducted to determine whether the process of the court, either a summons or a warrant, will issue to compel the appearance of the persons named in the information to answer to the charge (“the pre-enquete”).

The Second Step: Notice

[9] In order for process to be issued, s. 507.1, which governs the pre-enquete (i.e. the procedure to decide that question), requires that the Attorney General receive a copy of the private information and reasonable notice of the hearing: see ss. 507.1(3)(b) and (c). Further, the Attorney General must have an opportunity to attend the hearing itself: see s. 507.1(3)(d). The Criminal Code does not provide a specific form of notice.

The Third Step: The Pre-enquete

[10] The function of the pre-enquete is to determine whether the process of the court, a summons or warrant, should issue to compel the persons named in the information to attend before a justice to answer to the offence charged in the private information. At the pre-enquete, the presiding justice or provincial court judge must hear and consider the allegations of the private informant, as well as the evidence of the informant’s witnesses: see s. 507.1(3)(a). The justice must give the Attorney General an opportunity to attend the hearing, to cross-examine the informant’s witnesses, to call witnesses her or himself and to present any relevant evidence at the hearing: see s. 507.1(3)(d). The Attorney General’s appearance at the hearing does not mean that the Attorney General has intervened in the proceeding: see s. 507.1(4).

[11] At the end of the hearing, the judicial officer must determine whether a case for issuing a summons or warrant to compel the appearance of the accused to answer to the charge has been made out.

[12] Section 507.1 does not contain or incorporate by reference any provision that authorizes the Attorney General, a term defined in s. 507.1(11), to terminate or truncate the pre-enquete prior to adjudication.

THE PROCEEDINGS IN THIS CASE

Laying the Information

[13] Gary McHale appeared before a justice of the peace on August 19, 2008. He alleged that three named individuals committed a common nuisance about one year earlier, on a specific date and at a particular place. The justice was satisfied of the facial sufficiency of the information and its compliance with the statutory requirements.

[14] Each information, in written form, was sworn before the justice.

The Pre-enquete

[15] Gary McHale appeared at the pre-enquete on October 7, 2008. Crown counsel also appeared as the lawful deputy of the Attorney General.

[16] After a brief skirmish, during which Mr. McHale asked that Crown counsel be removed because of his participation in earlier proceedings involving Mr. McHale, Crown counsel indicated his intention to intervene in several matters scheduled for a pre-enquete, including those matters that are the subject of this appeal.

[17] Crown counsel invoked s. 11 (d) of the Crown Attorneys Act, R.S.O. 1990, c. C.49, which requires the Crown Attorney to:

[W]atch over cases conducted by private prosecutors and, without unnecessarily interfering with private individuals who wish in such cases to prosecute, assume wholly the conduct of the case where justice towards the accused seems to demand his or her interposition;

Crown counsel withdrew the charges that are the subject of this appeal, on the basis that the prosecution was an abuse of process and not in the interests of justice.

[18] The justice did not hear, or consider, the allegations of the private informant, Gary McHale, or any evidence adduced by the informant or Crown counsel.

The Application for Mandamus

[19] Gary McHale sought mandamus from a judge of the Superior Court of Justice. His application was successful. The judge decided that the case should be returned to a justice of the peace, so that a pre-enquete could be conducted to determine whether process should issue to compel the appearance of the persons named in the informations withdrawn by Crown counsel.

The Reasons of the Application Judge

[20] The application judge held that s. 507.1 did not contemplate the authority of the Attorney General to withdraw an information prior to the pre-enquete. To countenance such an authority would render the procedure put in place by s. 507.1, for all intents and purposes, meaningless.

[21] The application judge also rejected Crown counsel’s reliance on s. 11 (d) of the Crown Attorneys Act to furnish authority for the right to withdraw a private information at the outset of the pre-enquete. Such a “broad and generous interpretation” of s. 11(d), the application judge noted, would engender a conflict between provincial and federal legislation, and improperly expand the provincial authority beyond the clear language in s. 507.1.

[22] Crown counsel contended that the discretionary nature of the extraordinary remedies, like mandamus, should result in refusal of the order sought. After all, if process were to be issued at the conclusion of the pre-enquete, the Attorney General would stay the proceedings under s. 579 of the Criminal Code. The application judge rejected the submission as “entirely contrary to the reasoning of the Supreme Court of Canada in Dowson.”

THE GROUNDS OF APPEAL

[23] The appellant advances two grounds of appeal. The first is that the application judge erred in holding that the Attorney General had no discretion to withdraw the privately laid information at the pre-enquete prior to the issuance of process. The second ground of appeal contests the correctness of the trial judge’s conclusion that the Attorney General had no discretion to stay the private information in the same circumstances.

ANALYSIS

Ground One: The Crown’s Authority to Withdraw a Private Information Prior to the Issuance of Process

[24] The first ground of appeal requires an examination of the scope of the Crown’s common law authority to withdraw an information. What is different here than in the great run of cases in which informations are withdrawn by the Crown is that the information in this case is that of a private informant, not a law enforcement informant and the timing of the withdrawal occurred at the outset of the pre-enquete.

The Position of the Parties

[25] For the appellant, Mr. Patton submits that the purpose of the pre-enquete is to determine whether process should issue to compel persons named in the private information to attend court to answer to the charge. To ensure that only bona fide criminal proceedings are undertaken at the instance of a private informant, Parliament enacted s. 507.1. The provision recognizes the long-standing supervisory authority of the Crown to guard against frivolous and vexatious prosecutions going forward.

[26] Mr. Patton invokes the well-established authority of the Attorney General, as the Chief Law Officer of the Crown, to supervise the initiation, management and determination of criminal proceedings, both indictable and summary, privately begun or publicly commenced. An essential feature of this authority, he submits, is the right and duty to withdraw charges where the circumstances warrant. This authority originates in the common law, is carried forward by s. 8(2) of the Criminal Code, and is not limited by failure of express reference to it in s. 507.1(3), a provision inserted to circumscribe the authority of a justice at the pre-enquete.

[27] Further, Mr. Patton continues, the Crown Attorneys Act, valid legislation in relation to the administration of justice in the province, provides agents of the Attorney General with the same authority as the common law, and imposes upon them the same duty to terminate prosecutions that have no reasonable prospect of success or are an abuse of process. Far from creating a constitutional conflict or expanding the scope of s. 507.1, the provincial legislation complements s. 507.1(3) and supports the authority advanced here.

[28] In the end, Mr. Patton submits that the application judge erred in cutting down the Crown’s plenary authority to withdraw charges at any time after an information has been laid. To require that a decision be made to issue process before the authority to withdraw becomes engaged is neither supported by authority nor in the best interests of the administration of justice.

[29] Mr. McHale disagrees. The authority of the Attorney General to participate in the pre-enquete comes exclusively from s. 507.1. The section makes no mention of the authority of the Attorney General to withdraw an information laid by a private informant. Not before the pre-enquete. Not during the pre-enquete. Not at the conclusion of the pre-enquete when the justice orders process to issue. Mr. McHale emphasizes that the pre-enquete is usually an ex parte and in camera proceeding, attended only by the informant, some witnesses and the justice. The intervention of the Attorney General is an exception, and so the need to constrain the Attorney General’s authority to what is expressly given.

[30] Mr. McHale denies that the Crown Attorneys Act has any influence in determining whether the authority asserted by the appellant exists. The language of that Act, in particular ss. 11(b) and 11(d), makes it clear that the authority conferred applies only to existing prosecutions, in other words, proceedings taken after process has issued. In the event of any conflict between s. 507.1 and provincial legislation, Mr. McHale says, the specific federal authority trumps that of the province and supports the conclusion of the application judge.

The Governing Principles

[31] The issue raised by this appeal is of importance to the relationship between private informants or, more expansively, private prosecutors, and the public prosecutor exercising the prerogatives of the Chief Law Officer of the Crown. In the absence of binding precedent, the issue must be decided in accordance with basic principle informed by policy considerations.

The Authority of the Attorney General to Withdraw an Information

[32] Despite the absence of express or necessarily implied authority in the Criminal Code, it is well-established that the Attorney General has the authority to withdraw an information prior to plea: R. v. Dick, 1968 231 (ON SC), [1968] 2 O.R. 351 (H.C.J.), at p. 359; R. v. Osborne (1975), 1975 1357 (NB CA), 11 N.B.R. (2d) 48 (S.C.(A.D.)), at paras. 17 and 30; R. v. Blasko, 1975 1405 (ON SC), [1975] O.J. No. 1239 (H.C.J.), at paras. 5 and 6; Re Forrester and The Queen (1976), 1976 1433 (AB SCTD), 33 C.C.C. (2d) 221 (Alta. S.C.(T.D.)), at pp. 223-5. While leave of the presiding judge may be required to withdraw an information or charge after plea, the authority of the Attorney General to do so in advance of plea is unfettered.

[33] The overwhelming majority of criminal proceedings are commenced when a peace or public officer lays an information before a justice who conducts the pre-enquete required under s. 507, and issues process to compel the attendance of persons named in the information to answer to the charge. Since most prosecutions originate in this way, it is scarcely remarkable that most informations withdrawn by agents of the Attorney General were laid by agents of the state, not private informants. Yet no authority limits the right of an agent of the Attorney General to withdraw an information to only those informations laid by law enforcement officials.

[34] The simple fact that most withdrawals of informations by agents of the Attorney General occur after process has issued, and when the accused appears before a court, does not assist in determining the point at which the authority to withdraw may first be exercised. Frequency of occurrence does not equate with a condition precedent to exercise the right to withdraw.

[35] Pre-charge screening, or pre-charge approval, is the exception and not the rule in this province. An agent of the Attorney General is unlikely to have sufficient knowledge of the prosecution’s case to make an informed decision about the prosecution until she or he has received and reviewed disclosure from investigators. Knowledge of this kind is critical to informed decisions about withdrawal, yet unavailable earlier.

[36] The precise contours of the common law power of the Attorney General to withdraw an information are not expressly defined, or for that matter fully developed. This is scarcely novel. See, for example, R. v. Clement, 1981 212 (SCC), [1981] 2 S.C.R. 468, at p. 477; R. v. Salituro, 1991 17 (SCC), [1991] 3 S.C.R. 654, at p. 670. While the precise moment at which the authority to withdraw an information crystallizes is unclear from the existing authorities, it does seem clear that the business of withdrawals is strictly that of the Attorney General and his or her agents, and is subject to very limited review by the courts.

The Attorney General and the Private Prosecutor

[37] The Criminal Code makes room for both private and public prosecutors in indictable and summary conviction proceedings. Section 2 of the Criminal Code exhaustibly defines “prosecutor” as “the Attorney General” or, where the Attorney General has not intervened, as “the person who institutes proceedings to which this Act applies, and includes counsel acting on behalf of either of them”. For summary conviction proceedings, s. 785(1) defines “prosecutor” as “the Attorney General or, where the Attorney General does not intervene, the informant, and includes counsel or an agent acting on behalf of either of them”.

[38] A Crown Attorney is an agent of the Attorney General of Ontario. Section 11 of the Crown Attorneys Act requires a Crown Attorney to “to aid in the local administration of justice and perform the duties that are assigned to Crown Attorneys under the laws in force in Ontario”. Among the specific duties assigned to Crown Attorneys under s. 11(b) of the Act is the conduct, on the part of the Crown, of “prosecutions for indictable offences”. Under s. 11(d) of the Act, Crown Attorneys are assigned the duty to:

[W]atch over cases conducted by private prosecutors and, without unnecessarily interfering with private individuals who wish in such cases to prosecute, assume wholly the conduct of the case where justice towards the accused seems to demand his or her interposition;

[39] The interplay between a private prosecutor and a Crown Attorney who intervened in a private summary conviction prosecution was the focus of this Court’s decision in Re Bradley et al. and The Queen (1975), 1975 766 (ON CA), 9 O.R. (2d) 161.

[40] 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.

[41] 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.

[42] Although the circumstances in Bradley depict the obverse of the coin displayed here, this Court’s decision confirms the untrammeled 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.

The Commencement of Criminal Proceedings

[43] In the usual course, criminal proceedings are commenced or instituted by laying an information before a justice alleging the commission of an offence. Receipt of the information is a ministerial act. Provided the information alleges an offence known to law and is facially compliant with the requirements of the Criminal Code, the justice must receive the information. The justice takes the information under oath and affixes his or her signature to the jurat on the written Form 2.

[44] An information is a sworn allegation of crime. But it does not compel the person named as the accused to attend court to answer to the charge. Although the person named in the information is “charged with an offence” for the purposes of s. 11 of the Canadian Charter of Rights and Freedoms, we distinguish between the commencement of criminal proceedings and the commencement of a criminal prosecution. This distinction coincides with the dual functions of the justice. The ministerial act of receiving the information coincides with the institution of proceedings, and the judicial act of issuing process signals the commencement of the prosecution: R. v. Dowson, 1983 59 (SCC), [1983] 2 S.C.R. 144, at pp. 150, 155 and 157; Southam Inc. v. Coulter (1990), 1990 6963 (ON CA), 75 O.R. (2d) 1 (C.A.), at pp. 6-7.

The Pre-enquete

[45] To determine whether process should issue to compel the attendance of the person named in the information to answer to the charge, thus to determine whether a criminal prosecution will be commenced, the justice conducts a pre-enquete. Section 507.1 governs the pre-enquete when the proceedings have been commenced by a private informant.

[46] Under s. 507.1, Parliament has enacted a variety of provisions that regulate the conduct of the pre-enquete and describe the consequences that follow when process is not issued. The provisions of influence here are subsections (3) and (4):

(3) The judge or designated justice may issue a summons or warrant only if he or she

(a) has heard and considered the allegations of the informant and the evidence of witnesses;

(b) is satisfied that the Attorney General has received a copy of the information;

(c) is satisfied that the Attorney General has received reasonable notice of the hearing under paragraph (a); and

(d) has given the Attorney General an opportunity to attend the hearing under paragraph (a) and to cross-examine and call witnesses and to present any relevant evidence at the hearing.

(4) The Attorney General may appear at the hearing held under paragraph (3)(a) without being deemed to intervene in the proceeding.

[47] The enactment of s. 507.1(3) maintains the vitality of private prosecutions but, at the same time, takes steps to ensure that only those with legitimacy continue. The pre-enquete must be conducted by a designated justice or provincial court judge. The presiding justice must hear and consider not only the allegations of the private informant, but also the evidence of witnesses. The obligation to hear witnesses under s. 507.1(3)(a) may be contrasted with the language in s. 507(1)(a)(ii), applicable when the informant is a law enforcement officer or official, where the evidence of witnesses is only taken where the justice “considers it desirable or necessary to do so”. Under s. 507.1(3) the Attorney General is entitled, without being deemed to intervene in the proceedings, to:

• a copy of the information
• reasonable notice of the pre-enquete hearing
• the opportunity to attend the pre-enquete
• the opportunity to cross-examine witnesses
• the opportunity to call witnesses and present evidence at the hearing

[48] A pre-enquete is usually an ex parte proceeding held in camera. It affords the informant the opportunity to persuade the justice that she or he should issue process to compel the persons named in the information to appear in court to respond to the allegations in the information. But unlike s. 507, the regime of s. 507.1 makes provision for the attendance and participation in the pre-enquete of the Attorney General, as defined in s. 507.1(11), otherwise a stranger to the process.

[49] Section 507.1 makes no reference to the withdrawal of an information at the per-enquete, at any stage after the private information has been laid. In its silence on this issue, s. 507.1 is in harmony with the balance of the Criminal Code that says nothing about the authority of the Attorney General to withdraw the charge, or when that authority may be exercised. That said, neither does s. 507.1 prohibit withdrawal of an information in accordance with any common law authority.

The Principles Applied

[50] The application judge concluded that the Crown Attorney’s withdrawal of the private information before the pre-enquete had begun amounted to jurisdictional error. His conclusion as to jurisdictional excess appears linked to a combination of factors:

i. that s. 507.1 makes no reference to the authority to withdraw an information prior to the issuance of process, thus the authority does not exist;

ii. that s. 11 (d) of the Crown Attorneys Act, on its face, confers no such authority and to combine it with s. 507.1 would expand from the latter beyond its clear and express terms in a constitutionally impermissible way;

iii. that to permit exercise of the Attorney General’s authority to withdraw an information prior to the pre-enquete would render the pre-enquete, thus private prosecutions, of little or no value; and

iv. that the authority of the Attorney General to withdraw an information is limited to informations laid by law enforcement officials and does not extend to private informations.

It is unclear whether the application judge would require the actual issuance of process, or simply the determination to do so as a condition precedent to the exercise by the Attorney General of the withdrawal authority.

[51] I agree with the application judge that the withdrawal of the information prior to the conclusion of the pre-enquete, indeed before it began, was premature. But I reach my conclusion for substantially different reasons than did the application judge. In my view, his reasons are at once unsupported by authority and inconsistent with governing principles.

[52] The application judge attached significance to the absence from s. 507.1 of any reference to the authority of the Attorney General to withdraw a private information before, during, or at the conclusion of the pre-enquete. I disagree with this assessment.

[53] The Criminal Code contains no reference to the authority of the Attorney General or his or her agents to withdraw an information, whether laid by a private informant or a member of law enforcement. The authority, which is beyond argument, originates in the common law and is preserved by s. 8(2) of the Criminal Code. No Criminal Code provision alters, varies, modifies or affects this prerogative of the Crown. In the absence of any general provision about withdrawals, it is difficult to attach any significance to the lack of specific reference to this authority in s. 507.1, let alone to conclude that silence about it negates its availability.

[54] The application judge also considered that any invocation of s. 11 (d) of the Crown Attorneys Act, to support the exercise of the authority to withdraw at the outset of the pre-enquete, would not only expand s. 507.1 beyond its plain wording, but also create a constitutional confrontation between provincial and federal legislation. Again, I disagree.

[55] In Bradley, this Court held that what is now s. 11 (d) of the Crown Attorneys Act is not legislation in relation to criminal procedure, which could only be enacted by Parliament, but rather is legislation in relation to the administration of justice in a province, which lies properly within the provincial head of constitutional authority: see Bradley at p. 168. The directive contained in s. 11(d) does not clash with the provisions of s. 507.1, nor otherwise alter its operation or effect.

[56] The application judge seems also to have been of the mind that the Attorney General’s authority to withdraw an information could only be exercised when the information had been laid by a public, that is to say, a law enforcement informant. Yet again, I disagree.

[57] The Attorney General, and his or her agent the Crown Attorney, represents the Sovereign in the prosecution of crimes. The Criminal Code makes provision for private prosecutors. The role of the private prosecutor is parallel to, but does not serve as a substitute for, the role of the Attorney General. And where the two roles conflict, the role of the Attorney General prevails. Where the Attorney General considers that the interest of justice require his or her intervention, the Attorney General is entitled to interfere, to take over the prosecution and to terminate or continue it as she or he considers appropriate: see Bradley, at p. 169.

[58] In express terms, s. 507.1 authorizes the participation of the Attorney General in what is usually an ex parte and in camera proceeding involving only the informant and his or her witnesses. Nothing in the section curtails the authority of the Attorney General once she or he decides to participate in the pre-enquete.

[59] When all the cards are counted, the issue to be resolved reduces to whether the Attorney General may intervene to withdraw a private information prior to the commencement of the pre-enquete or must await the conclusion of:

i. the allegations of the informant and any evidence adduced at the inquiry; or

ii. the submissions of the informant and Attorney General about the issuance of process; or

iii. the decision of the justice or judge about the issuance of process.

[60] The resolution of the issue involves the intersection of a common law authority, the power of the Attorney General to withdraw an information, and a statutory enactment that governs a hearing, the pre-enquete, that precedes but may result in the issuance of process.

[61] The time period under consideration is the time between the commencement of criminal proceedings (by laying of a private information) and the commencement of a criminal prosecution (by the issuance of process to compel the attendance of the accused to answer to the charge).

[62] What is not at issue is either the general authority of the Attorney General to intervene in a private prosecution, or the specific authority of the Attorney General to intervene and withdraw a private information after process has issued. Each of these principles is firmly rooted in our jurisprudence.

The Purpose of s. 507.1

[63] Critical to a decision on this issue is an understanding of the purpose underlying the enactment of s. 507.1 and its application.

[64] Section 507.1 preserves the right of a private informant to seek the issuance of process to compel the appearance of persons named as prospective accused in an information laid by a private informant under s. 504. The issuance of process on the basis of a private information signals the commencement of a private prosecution.

[65] Section 507.1 also puts in place several measures to assure scrutiny of prospective private prosecutions to stifle the procession of frivolous or vexatious prosecutions before the courts. The presiding judicial officer must be either a designated justice or a provincial court judge. The Attorney General, the Chief Law Officer of the Crown, is entitled to notice of the pre-enquete, a copy of the information and the right to participate in the evidentiary hearing.

[66] In Dowson, the Supreme Court of Canada agreed with the conclusion of this Court that, as Chief Law Officer of the Crown, the Attorney General had the power to prevent the use of the criminal process where the Attorney General considered the proceedings should be stayed: Dowson, at pp. 154-5. The Supreme Court differed with this Court regarding the time at which a stay of proceedings could be entered. The difference arose because the Supreme Court considered that the clause “at any time after an indictment has been found”, in the context of an information before a justice for a pre-enquete, required that process issue before a stay could be entered under former s. 508(1) of the Criminal Code.

[67] To reach its conclusion, the Dowson court relied on several factors:

i. the fundamental right of a private citizen to lay an information and to seek the issuance of process;

ii. the right and duty of the Attorney General to supervise the conduct of criminal prosecutions;

iii. the duty of the justice under then, s. 455.3(1)(a) to “hear and consider” the allegations of the informant and make a decision about the issuance of process;

iv. the absence from the Criminal Code of any clear and unambiguous text taking away the right of private information; and

v. policy considerations ensuring accountability for decisions made in connection with the termination of private prosecutions.

[68] The factors considered by the Supreme Court of Canada in Dowson inform the decision in this case despite the differences in the governing statute and in the method of termination used here (withdrawal of the information) and in Dowson (entry of a stay of proceedings).

[69] The structure and language of s. 507.1(3)(a) differs from the former s. 455.3 applicable in Dowson. Under the former provision, the justice was required to hear and consider ex parte, the allegations of the informant. The justice was only required to hear and consider, ex parte, the evidence of witnesses, where the justice considered it desirable or necessary to do so. Section 507.1(3) is of a different construction. It eschews the direct statement of a duty in favour of a list of prerequisites that must be met before the justice may exercise his or her discretion to issue process. The prerequisites include the requirement that the justice hear and consider the allegations of the informant and the evidence of witnesses. The effect of s. 507.1(3)(a) is to impose a duty on the justice to hear and consider the allegations of the informant and the evidence of witnesses at the pre-enquete.

[70] It is well-settled that criminal proceedings are instituted or commenced by the laying or receipt of an information in writing and under oath. Anyone named as a person who committed the offence described in the information is a person “charged” with an offence for the purposes of s. 11(b) of the Charter: R. v. Kalanj, 1989 63 (SCC), [1989] 1 S.C.R. 1594, at p. 1607.

[71] A criminal prosecution only commences after a justice has made a decision to issue process: Dowson, at p. 150. As Chief Law Officer of the Crown, the Attorney General has supervisory control over criminal prosecutions. It seems reasonable to conclude that this supervisory authority begins contemporaneously with the commencement of a criminal prosecution. And that moment, at least in the absence of some statutory provision to the contrary, is after a justice has decided to issue process at the conclusion of a pre-enquete.

[72] Policy considerations also favour the conclusion that the withdrawal authority of the Attorney General crystallizes and may be exercised as of the moment the justice determines to issue process at the conclusion of the pre-enquete.

[73] The Criminal Code permits private prosecutions. A private informant may lay an information in conformity with s. 504. Receipt of the information commences criminal proceedings. Parliament enacted, more accurately continued, a procedure aimed at the determination by a judicial officer of whether the informant has made out a case for prosecution. This procedure is the pre-enquete, a hearing that provides the private informant the opportunity to present her or his case for prosecution.

[74] Conduct of the pre-enquete vindicates the interest of the private informant who seeks prosecution of another for an alleged crime. The pre-enquete assures the private informant that an independent judicial officer will hear the informant’s allegations, listen to the evidence of the informant’s witnesses, and decide whether there this is evidence of each essential element of the offence charged in the information. The pre-enquete also ensures that spurious allegations, vexatious claims, and frivolous complaints barren of evidentiary support or legal validity will not carry forward into a prosecution. To insist that the withdrawal power await the determination about issuance of process also reduces the risk that the Criminal Code’s provisions for private prosecution will to begin and end with the right to lay a private information.

[75] To hold that the authority to withdraw arises immediately upon the decision to issue process does not prejudice the interest of the persons named as responsible for the crimes alleged in the private information. The pre-enquete is conducted in camera. A decision by the Attorney General to withdraw the information once the decision to issue process has been made requires no public appearance, nor any response by those named in the information.

[76] The nexus between the decision to issue process and the withdrawal authority of the Attorney General also ensures that the decision to withdraw is informed by knowledge of the substance of the case the private prosecutor proposes to pursue. The fuller evidentiary record also establishes the basis upon which the withdrawal decision is grounded should accountability concerns later surface.

[77] It is for those reasons that I agree in the result with the application judge that the purported withdrawal of the informations here, before the pre-enquete had begun, was premature. The withdrawal authority requires the commencement of a prosecution, a point that coincides temporally with the determination by the justice that process shall issue. Withdrawal then is permissible while the in camera proceedings remain extant. Those named in the original information need not appear.

Ground Two: The Crown’s Authority to Stay Proceedings Prior to Pre-enquete

[78] At first sight, it seems unnecessary to determine whether an agent of the Attorney General is entitled to stay proceedings taken on a private information before the pre-enquete has begun under s. 507.1(3). After all, the Crown Attorney who appeared as the pre-enquete was about to begin in this case did not invoke s. 579(1) to enter a stay of proceedings. That said, it may well be that, as the pre-enquete is scheduled to begin, or at some time before the decision about the issuance of process is made, the Crown Attorney may invoke s. 579(1) to stay the proceedings. Thus the need to determine when this authority may be exercised.

The Position of the Parties

[79] For the appellant, Mr. Patton begins with the text of s. 579(1) of the Criminal Code, the enabling statutory authority. The subsection permits the Attorney General or an instructed agent to direct the clerk of the court to enter a stay of proceedings at any time after any proceedings in relation to an accused are commenced. Proceedings in relation to an accused are commenced by laying or receipt of an information. It is of no moment whether the informant is a private individual or a law enforcement official. It follows, Mr. Patton submits, that the Attorney General could direct entry of a stay at the time of the purported withdrawal here: at the outset of the pre-enquete and before the hearing under s. 507.1(3) begins.

[80] The appellant advances an alternative argument. A pre-enquete is a “proceeding in relation to an accused.” As soon as the pre-enquete formerly commences with the allegations of the informant, the Crown Attorney is entitled to direct entry of a stay.

[81] Mr. McHale is of a different mind. He submits that the Attorney General or instructed agent cannot direct entry of a stay until there is an “accused”, and that there is no “accused” until the designated justice or provincial court judge determines that process shall issue. Only then does the prosecution commence and can the person named in the information be properly described as an “accused”. And only then, when process has issued to compel attendance, can the Attorney General or instructed agent direct entry of a stay. For Mr. McHale, the right of the private citizen to pursue the issuance of process prevails over the authority of the Attorney General to supervise prosecutions and enter stays.

The Governing Principles

[82] The matter in which the authority to stay proceedings makes its way into this case renders an expansive discussion of the subject neither essential nor advisable. That said, brief reference to the authority to direct entry of a stay, the time at which a stay may be directed, and the availability of a stay as a basis upon which to refuse to issue mandamus may be of some assistance at the pre-enquete.

The Authority to Direct Entry of a Stay

[83] Unlike the authority to withdraw charges, the authority of the Attorney General or an instructed agent to direct entry of a stay of proceedings is statutory. Section 579 of the Criminal Code defines who may direct entry of a stay of proceedings, when and how the direction may be given, and what effect entry of a stay has on future proceedings.

[84] The only persons entitled to invoke the authority to direct entry of a stay are the Attorney General and counsel instructed by the Attorney General for the purpose of directing entry of the stay. Under the definition of “Attorney General” in s. 2 of the Criminal Code, the term includes the “lawful deputy” of the Attorney General. To implement the stay authority, the Attorney General or instructed agent must direct the clerk or other proper officer of the court to make an entry on the court record, for example, the information or indictment, that proceedings are stayed by the direction of the Attorney General or instructed agent. The entry is to be made on the record forthwith. The entry has the effect of staying proceedings and vacating any recognizances.

The Issue of Timing

[85] Section 579(1) permits the direction to enter a stay to be given “at any time after any proceedings in relation to an accused…are commenced”. The predecessor of s. 579(1) was s. 508(1) in the 1970 statutory revision. The comparable wording in former s. 508(1) was “at any time after an indictment has been found”, which the Dowson court interpreted to mean “as of the moment a summons or warrant is issued” or “once a determination to issue a process is made”: see Dowson, at p. 157.

[86] The Criminal Code provides no definition of the term “proceedings” as it is used in s. 579(1) or elsewhere in the Criminal Code. Courts have interpreted “at any time after any proceedings in relation to an accused…are commenced” in present s. 579(1) as “any time after an information is laid”: see Campbell v. Attorney-General of Ontario (1987), 1987 4268 (ON SC), 58 O.R. (2d) 209 (H.C.J.), at p. 220, aff’d (1987), 1987 4333 (ON CA), 60 O.R. (2d) 617 (C.A.); R. v. Wren, [1987] B.C.J. No. 1336 (C.A.), at p. 2; R. v. Pardo (1990), 1990 10957 (QC CA), 62 C.C.C. (3d) 371 (Que. C.A.), at pp. 373-4. Laying or receipt of an information commences criminal proceedings. It seems to logically follow from the decisions mentioned that laying an information falls within “proceedings in relation to an accused”. The same could be said of a pre-enquete, a proceeding to determine whether process should issue.

Extraordinary and Other Remedies

[87] As respondent before the application judge, the appellant urged the judge to refuse to issue mandamus because the prosecutor could simply direct entry of a stay in advance of the conduct of the pre-enquete. In doing so, the Attorney General summoned the well-known principle that the extraordinary remedies, like mandamus, do not issue as of right, rather are discretionary in their grant and may be refused where another adequate remedy exists: see Cheyenne Realty v. Thompson, 1974 4 (SCC), [1975] 1 S.C.R. 87, at p. 90.

[88] The appellant’s reliance on this principle seems misplaced. The availability of an alternative remedy to an applicant for mandamus, for example a right of appeal from the decision that is the subject of the application for mandamus, may result in refusal of the extraordinary remedy. But that is not this case. The alternative remedy here, entry of a stay rather than withdrawal of the information, was available not to the applicant but rather to the respondent on the application. The Attorney General or an instructed agent chose to withdraw the information rather than to stay it. The withdrawal was premature, made before the authority to do so existed. That the Attorney General or instructed agent could have directed entry of a stay did not disentitle the respondent here to an order of mandamus setting aside the purported withdrawal and directing conduct of the pre-enquete.

The Principles Applied

[89] The application of the principles governing the entry of stays of proceedings under s. 579(1) permit the Attorney General or an instructed agent to direct entry of a stay at any time after an information has been laid. Laying an information commences criminal proceedings and is itself a “proceeding in relation to an accused” within the meaning of those terms in s. 579(1) of the Criminal Code. What occurred here, attendance before a justice to conduct a pre-enquete also amounts to “proceedings in relation to an accused” under s. 579(1).

[90] It may seem anomalous to some that of two available steps to terminate proceedings initiated by a private information one is available at any time after the information is laid, but the other not until a determination has been made that process shall issue. The difference resides in the source of the authority. The common law, infused by policy considerations, compels one conclusion, the plain language of the statute, another.

CONCLUSION

[91] For these reasons I would dismiss the appeal, and confirm the order of the application judge directing that the matter return to the justice of the peace to conduct the pre-enquete.

RELEASED: May 17, 2010 “STG”

“David Watt J.A.”

“I agree Winkler C.J.O.”

“I agree S.T. Goudge J.A.”

APPENDIX “A”

Sections 504 and 507.1 of the Criminal Code, R.S.C. 1985, c. C-46.

In what cases justice may receive information

504. Any one who, on reasonable grounds, believes that a person has committed an indictable offence may lay an information in writing and under oath before a justice, and the justice shall receive the information, where it is alleged

(a) that the person has committed, anywhere, an indictable offence that may be tried in the province in which the justice resides, and that the person

(i) is or is believed to be, or

(ii) resides or is believed to reside,

within the territorial jurisdiction of the justice;

(b) that the person, wherever he may be, has committed an indictable offence within the territorial jurisdiction of the justice;

(c) that the person has, anywhere, unlawfully received property that was unlawfully obtained within the territorial jurisdiction of the justice; or

(d) that the person has in his possession stolen property within the territorial jurisdiction of the justice.

Referral when private prosecution

507.1 (1) A justice who receives an information laid under section 504, other than an information referred to in subsection 507(1), shall refer it to a provincial court judge or, in Quebec, a judge of the Court of Quebec, or to a designated justice, to consider whether to compel the appearance of the accused on the information.

Summons or warrant

(2) A judge or designated justice to whom an information is referred under subsection (1) and who considers that a case for doing so is made out shall issue either a summons or warrant for the arrest of the accused to compel him or her to attend before a justice to answer to a charge of the offence charged in the information.

Conditions for issuance

(3) The judge or designated justice may issue a summons or warrant only if he or she

(a) has heard and considered the allegations of the informant and the evidence of witnesses;

(b) is satisfied that the Attorney General has received a copy of the information;

(c) is satisfied that the Attorney General has received reasonable notice of the hearing under paragraph (a); and

(d) has given the Attorney General an opportunity to attend the hearing under paragraph (a) and to cross-examine and call witnesses and to present any relevant evidence at the hearing.

Appearance of Attorney General

(4) The Attorney General may appear at the hearing held under paragraph (3)(a) without being deemed to intervene in the proceeding.

Information deemed not to have been laid

(5) If the judge or designated justice does not issue a summons or warrant under subsection (2), he or she shall endorse the information with a statement to that effect. Unless the informant, not later than six months after the endorsement, commences proceedings to compel the judge or designated justice to issue a summons or warrant, the information is deemed never to have been laid.

Information deemed not to have been laid — proceedings commenced

(6) If proceedings are commenced under subsection (5) and a summons or warrant is not issued as a result of those proceedings, the information is deemed never to have been laid.

New evidence required for new hearing

(7) If a hearing in respect of an offence has been held under paragraph (3)(a) and the judge or designated justice has not issued a summons or a warrant, no other hearings may be held under that paragraph with respect to the offence or an included offence unless there is new evidence in support of the allegation in respect of which the hearing is sought to be held.

Subsections 507(2) to (8) to apply

(8) Subsections 507(2) to (8) apply to proceedings under this section.

Non-application — informations laid under sections 810 and 810.1

(9) Subsections (1) to (8) do not apply in respect of an information laid under section 810 or 810.1.

Definition of “designated justice”

(10) In this section, “designated justice” means a justice designated for the purpose by the chief judge of the provincial court having jurisdiction in the matter or, in Quebec, a justice designated by the chief judge of the Court of Quebec.

Meaning of “Attorney General”

(11) In this section, “Attorney General” includes the Attorney General of Canada and his or her lawful deputy in respect of proceedings that could have been commenced at the instance of the Government of Canada and conducted by or on behalf of that Government.

[^1]: The style of cause duplicates the style of cause in the Superior Court of Justice, but leaves the impression that Mr. McHale is the accused. He is not. A more appropriate style of cause would be Re Ontario (Attorney General) v. Gary William McHale.