Court File and Parties

Citation: R. v. Maieron, 2011 ONCA 78 Date: 2011-01-27 Docket: C52419

Court of Appeal for Ontario Before: Doherty, Laskin and Gillese JJ.A.

Between: Her Majesty the Queen (Appellant) and Louigino Maieron (Respondent)

Counsel: Lisa Csele, for appellant Louigino Maieron, appearing in person

Heard: January 26, 2011

On appeal from the order made by Justice Norman Douglas of the Ontario Court of Justice dated May 20, 2010.

Appeal Book Endorsement

[1] We agree with the Crown’s submission that the appeal judge wrongly refused to order a new trial and stayed the proceedings on the basis that the appeal judge believed the allegations to be trivial and not worthy of prosecution. It is not for judges to second guess the decision to prosecute a particular allegation.

[2] An appellate court may, in exceptional cases, having determined that the order made at trial should be set aside, decline to order a new trial and direct a stay. The appellate court can do so where, in the circumstances, a new trial would not serve the interests of justice. In the circumstances of this case, the focus of that inquiry should be on the impact of a new trial on the respondent at this point in the proceedings.

[3] The respondent has been before the court on four occasions at personal expense and inconvenience. The allegation against him is minor both in its nature and in respect of the particulars of this allegation. The Crown has made its legal point through this endorsement which makes it clear that judges cannot interfere with the Crown’s exercise of its discretion to initiate prosecutions, except in those few cases that come within the abuse of process doctrine. A new trial at this stage would not serve any useful purpose and would cause further inconvenience and expense to the respondent. He has done nothing to contribute to the prolonged litigation of this minor allegation, but is in a sense a victim of self-initiated judicial errors.

[4] In oral argument, there was some suggestion that the respondent continues the conduct that gave rise to the charge. If that is so, the prosecutorial authorities can lay a new charge and proceed. Nothing in these reasons should be read as interfering with that discretion. If the Crown chooses to do so, hopefully the merits of the allegation can be addressed without subjecting the respondent to appearances at three different court levels.

[5] Nothing in this endorsement should be construed as any criticism of the Crown’s conduct. The problem is the product of judicial error.

[6] The appeal is dismissed.