Court of Appeal for Ontario

Date: October 18, 2017 Docket: C62994

Judges: Doherty, LaForme and Paciocco JJ.A.

Between

Stuart Jackson Applicant (Appellant)

and

Her Majesty the Queen Respondent

Counsel

Sandra Barton, for the appellant

Milan Rupic, for the respondent

Heard and released orally: October 18, 2017

On appeal from the order of Justice Michael Brown of the Superior Court of Justice, dated October 28, 2016, dismissing the application for judicial review of a Crown decision to continue a stay of a private prosecution.

Reasons for Decision

[1] The appellant alleges that the Crown's decision to stay its private prosecution is an abuse of process. It alleges the decision was not evidence-based given that in the appellant's view, the perjury is indisputable and that it harms the integrity of the administration of justice not to prosecute obvious instances of perjury. In essence, the applicant is asking this court to use the abuse of process standard to assess the reasonableness of the Crown's decision, at least to the extent of determining whether there is evidence capable of supporting the Crown's position.

[2] This invitation is contrary to the authority. Abuse of process is not a tool for assessing the quality of prosecutorial decisions. It is a tool for addressing conduct of the Crown that is egregious and seriously undermines the fairness of the proceeding or the integrity of the administration of justice. Simply put, it is about misconduct, not poor performance. Even if we were to accept the appellant's characterization of the facts stated at its highest, there is no foundation for finding an abuse of process. Justice Brown understood this. He applied the correct test and did so impeccably.

[3] The appeal is dismissed.

"Doherty J.A."

"H.S. LaForme J.A."

"David M. Paciocco J.A."