R. v. Power, [1994] 1 S.C.R. 601

Her Majesty The Queen Appellant

v.

Eugene Paul Power Respondent

Indexed as: R. v. Power

File No.: 23566.

1993: December 3; 1994: April 14.

Present: La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin and Major JJ.

on appeal from the court of appeal for newfoundland

Courts ‑‑ Residual discretion of appellate court on appeal from acquittal where error at trial reasonably capable of affecting the verdict ‑‑ Criminal Code providing for upholding the acquittal or ordering new trial ‑‑ Charge of impaired driving causing death and injury ‑‑ Proof of impaired driving required to found charge ‑‑ Crown declining to call further evidence when breathalyzer evidence found inadmissible for alleged Charter violation ‑‑ Accused acquitted ‑‑ Evidence found to be wrongly excluded on appeal ‑‑ Court of Appeal upholding acquittal and refusing to order new trial ‑‑ Whether, on a trial by judge and jury, s. 686(4) of the Criminal Code (dealing with the power of courts of appeal on appeals from acquittals either to uphold the acquittal or to order a new trial) includes a residual discretion for a court of appeal to refuse to order a new trial where there was an error at trial which could reasonably have affected the verdict ‑‑ Criminal Code, R.S.C., 1985, c. C-46, s. 686(4).

Criminal law -- Appeal from acquittal -- Courts ‑‑ Residual discretion of appellate court on appeal from acquittal where error at trial reasonably capable of affecting the verdict ‑‑ Criminal Code providing for upholding the acquittal or ordering new trial ‑‑ Charge of impaired driving causing death and injury ‑‑ Proof of impaired driving required to found charge ‑‑ Crown declining to call further evidence when breathalyzer evidence found inadmissible for alleged Charter violation ‑‑ Accused acquitted ‑‑ Evidence found to be wrongly excluded on appeal ‑‑ Court of Appeal upholding acquittal and refusing to order new trial ‑‑ Whether, on a trial by judge and jury, s. 686(4) of the Criminal Code (dealing with the power of courts of appeal on appeals from acquittals either to uphold the acquittal or to order a new trial) includes a residual discretion for a court of appeal to refuse to order a new trial where there was an error at trial which could reasonably have affected the verdict.

Respondent was charged with impaired driving following a motor vehicle collision where one of his passengers was killed and another two injured. The constable attending at the accident advised respondent of his s. 10 Charter rights to be promptly informed of the reasons for his arrest and to retain and instruct counsel. He then formally demanded a breathalyzer sample from respondent who smelled of alcohol and was staggering. The constable in charge of respondent at the police station inquired as to whether he understood his right to contact counsel and helped him to do so. Both respondent and his lawyer knew that one of the passengers had died at the time of their first telephone consultation. After the consultation, respondent initially refused to provide a breath sample but relented when advised by the police that he would be charged with refusing to provide a sample. The lawyer and respondent consulted again before a second breath sample was taken.

At trial, respondent's lawyer objected to the admission of the results of the breath samples on the ground that the police had violated respondent's s. 10 Charter rights. The trial judge, on a voir dire, concluded respondent's Charter rights had been violated because he had not been made aware of the extent of the jeopardy which he faced before his consultation with his lawyer. He decided that the evidence should be excluded under s. 24(2) of the Charter for its admission would bring the administration of justice into disrepute. Crown counsel declined to call further evidence and the trial judge charged the jury to acquit. The Court of Appeal dismissed an appeal from the acquittal. At issue here was whether, with respect to a verdict on a trial by judge and jury, s. 686(4) of the Criminal Code (which deals with the power of courts of appeal on appeals from acquittals either to uphold the acquittal or to order a new trial) included a residual discretion for a court of appeal to refuse to order a new trial where there was an error at trial which could reasonably have affected the verdict.

Held (Sopinka, Cory and Major JJ. dissenting): The appeal should be allowed.

Per La Forest, L'Heureux‑Dubé, Gonthier and McLachlin JJ.: No abuse of process occurred here. Furthermore, s. 686(4) of the Criminal Code does not confer any discretion on a court of appeal other than the discretion to dismiss or allow an appeal. As a matter of law, principle and policy, the court of appeal is not empowered to inquire into prosecutorial discretion.

In criminal cases, courts have a residual discretion to remedy an abuse of the court's process but only in the "clearest of cases" ‑‑ i.e., conduct which shocks the conscience of the community and is so detrimental to the proper administration of justice that it warrants judicial intervention. The evidence must be overwhelming that the proceedings under scrutiny are unfair to the point that they are contrary to the interest of justice. Since the Attorney General through his or her prosecutorial function expresses the community's sense of justice, the courts should be careful before attempting 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.

Here, the conduct of the prosecution did not meet the high threshold required to constitute an abuse of process. There was no evidence that the Crown prosecutor's conduct was prompted by bad faith or an improper motive, nor did the prosecution intend to frustrate the administration of justice or even to circumvent the rules of criminal law regarding interlocutory appeals. Misconduct of such a nature as to shock the community's sense of fairness or to warrant the application of the doctrine of abuse of process was not established by the Crown's decision not to adduce further evidence.

Section 686(4) of the Criminal Code does not confer a court of appeal with any discretion, however limited, beyond the general power to control its process in case of abuse. The jurisprudence does not support such an extension of discretion and no policy consideration warrants such a broad interpretation of s. 686(4). Quite the contrary. It is contrary not only to the rule of law but also to the good and efficient administration of justice for the courts of appeal to invade the exclusive domain of the Crown and to interfere with prosecutorial discretion. The courts' reluctance to interfere with prosecutorial discretion stems from the doctrine of separation of powers where the criminal law is in the domain of the executive. Further, the judicial review of prosecutorial discretion could involve the Crown's disclosing the reasons underlying its conduct of a case. Such disclosure could generate masses of documents for review, adversely affect the flexibility that derives from prosecutorial confidentiality, and involve the courts in potentially extensive exercises in "second‑guessing" a prosecutor's judgment in order to determine if the reasons behind his or her judgment were merely a subterfuge. The Crown cannot function as a prosecutor before the court while also serving under its general supervision and the court, in turn, cannot both supervise the exercise of prosecutorial discretion and act as an impartial arbitrator of the case presented to it. Even if a discretion to review prosecutorial decisions did exist, the Court of Appeal should have ordered a new trial.

The only evidence which the Court of Appeal could and did assess was the evidence presented at the voir dire and at the preliminary inquiry. It is highly speculative to conjecture about the verdict based on this evidence. Evidence led at a voir dire to establish admissibility does not assist in the determination of the innocence or guilt. It does not touch upon the determination of guilt or innocence but rather deals with facts that have nothing to do with the commission of the offence, such as the means by which the relevant evidence was obtained. On a preliminary hearing, the Crown has the discretion to present only that evidence which makes out a prima facie case. Speculation about the verdict cannot serve as the basis for review of an exercise of prosecutorial discretion that falls short of an abuse of process.

The Court of Appeal should have ordered a new trial on the basis that the excluded evidence was crucial to the Crown's case. Once the breathalyzer evidence was ruled inadmissible, any further evidence that might have been led would not necessarily have assisted the Crown in proving that the respondent's ability to drive was in fact impaired. Without the breathalyzer evidence, the Crown in all probability would have been unable to prove beyond a reasonable doubt that respondent's ability to drive was impaired. This element is crucial in cases of impaired driving causing death or bodily harm. Furthermore, this evidence was of the utmost importance because it seemed that the respondent was raising alternative causes for the accident, such as road and weather conditions and the mechanical repair of the car.

Per Sopinka, Cory and Major JJ. (dissenting): Although s. 686(4) of the Criminal Code does not specify the grounds upon which a Crown appeal from acquittal may be taken, s. 676(1)(a) provides that an appeal lies from an acquittal on any ground that involves a question of law alone. Their combined effect is that the Court of Appeal "may" allow the appeal. This confers a discretion on the court which is not statutorily defined. The Crown, notwithstanding an error of law, has the obligation of satisfying the Court of Appeal that the verdict would not necessarily have been the same absent the error.

Cases where the Crown calls all of its evidence can arguably differ from those where the Crown deliberately chooses to bring about a directed verdict by not calling available evidence. The test in Vézeau v. The Queen for the exercise of the discretion conferred by s. 686(4) does not exhaust the definition of that discretion so as to preclude the Court, in appropriate circumstances, from adding to or qualifying the application of that test. Jurisprudence supports a limited discretion on the part of the Court of Appeal to decline to allow an appeal in some circumstances where the Crown unreasonably shuts down its case with the result that a verdict of acquittal is directed. Apart from the capacity to stay for abuse of process, an appellate court is entitled to consider whether the Crown has acted unreasonably in refusing to call further evidence at trial because of an adverse evidentiary ruling and can refuse to order a new trial in such circumstances. The threshold requirement is that, apart from the evidence excluded, the Crown's case was sufficient to be put to the jury. This threshold is met when the Crown's remaining evidence meets the essential elements of the offence, but the Crown chooses not to call that evidence. The final determination will depend upon a weighing of other factors, including the relative strength of the evidence not called, the relative importance of the evidence excluded by the impugned ruling, the degree of prejudice which further proceedings present to the accused and the reasons for the decision of the Crown not to call further evidence.

As a general rule a decision to shut down the Crown's case simply to appeal an adverse ruling will be held to be unreasonable. On the other hand, where the evidence which has been excluded is relatively important and the remaining evidence, although perhaps sufficient to make out a prima facie case, is so weak that the prosecutor concludes that continuing with the trial is a waste of time, a decision to terminate the proceedings may be reasonable. Any special prejudice over and above prejudice that can be inferred from any prolongation of criminal proceedings will be, if proved, an important factor to be weighed by the Court of Appeal. This discretion must be exercised sparingly.

In considering the other evidence which the appellant decided not to call, it is necessary to identify the elements of the offence in question and to consider whether the other evidence was sufficient to warrant putting the appellant's case to the jury. In reaching this determination, the test to be applied is whether the other evidence, "if believed by a properly charged jury acting reasonably, would justify a conviction". Here, to substantiate its case, the appellant would have to demonstrate that: (i) the respondent was operating the vehicle in question; (ii) the respondent's ability to drive was impaired by alcohol; and, (iii) the impaired driving ability of the respondent caused the deaths and bodily harm which occurred.

The eye witnesses provided ample evidence of respondent's driving and could testify to a number of factors sufficient to establish his impaired state without resort to breathalyzer evidence. The Crown, to prove causation, had to adduce sufficient evidence to demonstrate respondent's impairment was at least a contributing cause of death and injury, outside the de minimis range. The issue of causation requires consideration of competing theories as to the explanation for occurrence of the accident which resulted in injury and death. Impairment need not be shown to be the sole cause in order to convict, since it may well be that, even though a combination of factors was involved, impairment was still more than a de minimis cause of the death and injury which occurred. Here, the additional evidence of impairment lent to the case by the breathalyzer would not have had a significant effect on the role played by road conditions and mechanical disrepair, nor was it essential to establishing the respondent's impairment.

Cases Cited

By L'Heureux‑Dubé J.

Considered: R. v. Jewitt, 1985 47 (SCC), [1985] 2 S.C.R. 128; referred to: R. v. Leroux (1928), 1928 455 (ON CA), 50 C.C.C. 52; R. v. Bell (1929), 1929 280 (BC CA), 51 C.C.C. 388; R. v. Leclair (1956), 1956 526 (ON CA), 115 C.C.C. 297; Connelly v. Director of Public Prosecutions, [1964] 2 All E.R. 401; R. v. Osborn, 1970 22 (SCC), [1971] S.C.R. 184, aff'g (1968), 4 C.C.C. 185; Rourke v. The Queen, 1977 191 (SCC), [1978] 1 S.C.R. 1021; Director of Public Prosecutions v. Humphrys, [1976] 2 All E.R. 497; Erven v. The Queen, 1978 19 (SCC), [1979] 1 S.C.R. 926; R. v. Krannenburg, 1980 179 (SCC), [1980] 1 S.C.R. 1053; Amato v. The Queen, 1982 31 (SCC), [1982] 2 S.C.R. 418; R. v. Lebrun (1978), 1978 2429 (BC CA), 7 C.R. (3d) 93; Re Ball and The Queen (1978), 1978 2268 (ON CA), 44 C.C.C. (2d) 532; Re Abarca and The Queen (1980), 1980 2958 (ON CA), 57 C.C.C. (2d) 410; R. v. Young (1984), 1984 2145 (ON CA), 40 C.R. (3d) 289; R. v. Keyowski, 1988 74 (SCC), [1988] 1 S.C.R. 657; R. v. Mack, 1988 24 (SCC), [1988] 2 S.C.R. 903; R. v. Conway, 1989 66 (SCC), [1989] 1 S.C.R. 1659; R. v. Scott, 1990 27 (SCC), [1990] 3 S.C.R. 979; R. v. Potvin, 1993 113 (SCC), [1993] 2 S.C.R. 880; Vézeau v. The Queen, 1976 7 (SCC), [1977] 2 S.C.R. 277; R. v. Banas and Haverkamp (1982), 1982 2107 (ON CA), 65 C.C.C. (2d) 224; R. v. Voykin (1986), 1986 ABCA 154, 29 C.C.C. (3d) 280; R. v. Bailey (1983), 1983 3569 (ON CA), 4 C.C.C. (3d) 21; R. v. Whittle (1992), 1992 12777 (ON CA), 78 C.C.C. (3d) 49; Fraser v. Public Service Staff Relations Board, 1985 14 (SCC), [1985] 2 S.C.R. 455; Sobeys Stores Ltd. v. Yeomans and Labour Standards Tribunal (N.S.), 1989 116 (SCC), [1989] 1 S.C.R. 238; Beauregard v. Canada, 1986 24 (SCC), [1986] 2 S.C.R. 56; Douglas/Kwantlen Faculty Assn. v. Douglas College, 1990 63 (SCC), [1990] 3 S.C.R. 570; Re Balderstone and The Queen (1983), 1983 2803 (MB CA), 8 C.C.C. (3d) 532, leave to appeal refused, [1983] 2 S.C.R. v; R. v. Beare, 1988 126 (SCC), [1988] 2 S.C.R. 387; United States of America v. Cotroni, 1989 106 (SCC), [1989] 1 S.C.R. 1469; R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309; R. v. Verrette, 1978 208 (SCC), [1978] 2 S.C.R. 838; Smythe v. The Queen, 1971 831 (SCC), [1971] S.C.R. 680; R. v. T. (V.), 1992 88 (SCC), [1992] 1 S.C.R. 749; United States v. Redondo‑Lemos, 955 F.2d 1296 (1992); United States v. Giannattasio, 979 F.2d 98 (1992); Welch v. The King, 1950 8 (SCC), [1950] S.C.R. 412; Caccamo v. The Queen, 1975 11 (SCC), [1976] 1 S.C.R. 786; Patterson v. The Queen, 1970 180 (SCC), [1970] S.C.R. 409.

By Sopinka J. (dissenting)

R. v. Smith, 1991 91 (SCC), [1991] 1 S.C.R. 714; R. v. Banas and Haverkamp (1982), 1982 2107 (ON CA), 65 C.C.C. (2d) 224; R. v. Voykin (1986), 1986 ABCA 154, 29 C.C.C. (3d) 280; R. v. Mack, 1988 24 (SCC), [1988] 2 S.C.R. 903; R. v. Jewitt, 1985 47 (SCC), [1985] 2 S.C.R. 128; R. v. Bailey (1983), 1983 3569 (ON CA), 4 C.C.C. (3d) 21; R. v. Keyowski, 1988 74 (SCC), [1988] 1 S.C.R. 657; Vézeau v. The Queen, 1976 7 (SCC), [1977] 2 S.C.R. 277; White v. The King, 1947 1 (SCC), [1947] S.C.R. 268; R. v. Paquette (1974), 1974 815 (ON CA), 19 C.C.C. (2d) 154; R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345; R. v. Potvin, 1993 113 (SCC), [1993] 2 S.C.R. 880; R. v. Collins (1993), 1993 8632 (ON CA), 79 C.C.C. 204; R. v. Whittle (1992), 1992 12777 (ON CA), 78 C.C.C. (3d) 49; R. v. Monteleone, 1987 16 (SCC), [1987] 2 S.C.R. 154; R. v. Smith (1992), 1992 ABCA 159, 73 C.C.C. (3d) 285; R. v. Andres, 1979 2238 (SK CA), [1982] 2 W.W.R. 249; Graat v. The Queen, 1982 33 (SCC), [1982] 2 S.C.R. 819; R. v. Dubois (1990), 1990 2776 (QC CA), 62 C.C.C. (3d) 90; R. v. Kucher (1979), 1979 ALTASCAD 174, 48 C.C.C. (2d) 115; R. v. Pinske (1988), 1988 3118 (BC CA), 30 B.C.L.R. (2d) 114, aff'd 1989 47 (SCC), [1989] 2 S.C.R. 979; R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 10(a), (b), 24(2).

Constitution Act, 1867.

Criminal Code, R.S.C., 1985, c. C‑46, ss. 255(2) [rep. & sub. R.S.C., 1985, c. 27 (1st Supp.), s. 36], (3) [rep. & sub. idem], 676(1)(a), 686(1)(b)(iii), (4)(a), (b)(i), (ii) [rep. & sub. ibid., s. 145(3)].

Authors Cited

Frase, Richard S. "The Decision to File Federal Criminal Charges: A Quantitative Study of Prosecutorial Discretion" (1979-1980), 47 U. Chi. L. Rev. 246.

Garant, Patrice. Droit administratif, 3^e éd., vol. 2. Cowansville, Qué.: Yvon Blais, 1991.

Hébert, Jean-Claude. "Le contrôle judiciaire de certains pouvoirs de la couronne", dans Droit pénal‑-Orientations nouvelles. Formation permanente, Barreau du Québec. Cowansville, Qué.: Yvon Blais, 1987, 129.

Hogg, Peter W. Constitutional Law of Canada, 3rd ed. Scarborough, Ont.: Carswell, 1992.

Lezak, Sidney I. and Maureen Leonard. "The Prosecutor's Discretion: Out of the Closet ‑‑ Not Out of Control" (1984), 63 Or. L. Rev. 247.

Morgan, Donna C. "Controlling Prosecutorial Powers ‑- Judicial Review, Abuse of Process and Section 7 of The Charter" (1986‑87), 29 Crim. L.Q. 15.

Pépin, Gilles. "La compétence des tribunaux administratifs de décider de la constitutionnalité d'une loi, notamment de sa compatibilité avec la Charte canadienne des droits et libertés", in Canadian Bar Association ‑ Continuing Legal Education Seminar on Administrative Law, Administrative Law: Past Present and Future Where We've Been. Ottawa: 1989.

Ramsay, J. A. "Prosecutorial Discretion: A Reply to David Vanek" (1987‑88), 30 Crim. L.Q. 378.

Reiss, Steven Alan. "Prosecutorial Intent in Constitutional Criminal Procedure" (1987), 135 U. Pa. L. Rev. 1365.

Temby, Ian. "Prosecution Discretions and the Director of Public Prosecutions Act 1983" (1985), 59 Austl. L.J. 197.

Vanek, David. "Prosecutorial Discretion" (1987‑88), 30 Crim. L.Q. 219.

APPEAL from a judgment of the Newfoundland Court of Appeal (1993), 1993 3372 (NL CA), 105 Nfld. & P.E.I.R. 271, 331 A.P.R. 271, 81 C.C.C. (3d) 1, 45 M.V.R. (2d) 214, dismissing an appeal from acquittal by Aylward J. sitting with jury. Appeal allowed, Sopinka, Cory and Major JJ. dissenting.

Wayne Gorman, for the appellant.

David Orr, for the respondent.

The judgment of La Forest, L'Heureux-Dubé, Gonthier and McLachlin JJ. was delivered by

L'HEUREUX-DUBÉ J. -- This appeal concerns the interpretation and application of s. 686(4) of the Criminal Code, R.S.C., 1985, c. C-46, to the facts of the case. The sole issue is whether the Court of Appeal erred in entering a verdict of acquittal instead of ordering a new trial for the respondent after it concluded that the trial judge had committed an error of law in excluding breathalyzer evidence which was admissible.

The majority of the Court of Appeal, Goodridge C.J. dissenting, dismissed the Crown's appeal of respondent's acquittal on the ground that there had been an abuse of process in that, instead of proceeding with the trial, the Crown, unreasonably in their view, declined to call further evidence which resulted in the acquittal of respondent on all counts. My colleague, Justice Sopinka, while declining to dismiss the appeal on that ground, would do so "on the ground that the court of appeal has a limited discretion to dismiss an appeal in such circumstances and that this was a proper case for its exercise" (p. 635). I respectfully disagree.

I share the view expressed by Goodridge C.J. in dissent that no abuse of process occurred in the present case. Furthermore, I cannot agree with my colleague that s. 686(4) of the Code confers any discretion on a court of appeal other than the discretion to dismiss or allow an appeal. In particular, I cannot agree, as a matter of law, principle and policy, that a court of appeal is empowered to inquire into prosecutorial discretion.

Section 686(4) of the Criminal Code reads as follows:

686. . . .

(4) Where an appeal is from an acquittal, the court of appeal

may

(a) dismiss the appeal; or

(b) allow the appeal, set aside the verdict and

(i) order a new trial, or

(ii) except where the verdict is that of a court composed of a judge and jury, enter a verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law, and pass a sentence that is warranted in law, or remit the matter to the trial court and direct the trial court to impose a sentence that is warranted in law.

My colleague has summarized the facts and the judgments which relieves me of the necessity of dealing with them at length. Suffice it to say that, on April 20, 1989, a car driven by the respondent was involved in an accident in which one of his passengers died and two others were injured. The respondent was charged with one count of impaired driving causing death and two counts of impaired driving causing bodily harm. At trial, the breathalyzer evidence, which was the most probative evidence tendered by the Crown, was found to have been obtained in breach of the respondent's right to counsel in s. 10(b) of the Canadian Charter of Rights and Freedoms. As such, the evidence was declared inadmissible and was excluded. The Crown elected to call no further evidence and the respondent was, consequently, acquitted. The Court of Appeal, having found no Charter breach, held that the evidence was admissible as a matter of law. While such an appeal would normally be allowed and a new trial ordered according to s. 686(4) of the Criminal Code, the Court entered a verdict of acquittal on the basis that there had been an abuse of process by the Crown.

At the outset, it is important to note that the Court of Appeal was unanimous in holding that the trial judge had erred in excluding the properly admissible breathalyzer evidence. This is no longer an issue before us. As to the discretion of a court of appeal in Crown's appeals under s. 686(4) of the Criminal Code, the Court of Appeal was also unanimous in holding that s. 686(4) does not oust courts' power to sanction an abuse of process. Beyond that, I share Goodridge C.J.'s affirmation for the reasons he exposes (1993), 1993 3372 (NL CA), 105 Nfld. & P.E.I.R. 271, at p. 305, that:

... the Court of Appeal must either dismiss the appeal or allow the appeal and set aside the verdict, and, if it allows the appeal and sets aside the verdict, it must either order a new trial or, unless the verdict appealed from is that of a jury, enter the verdict which should have been entered at trial. [Emphasis added.]

I will discuss the following issues in turn:

1. The Abuse of Process;

2. The Discretion under s. 686(4) of the Criminal Code;

3. Prosecutorial Discretion.

1. Abuse of Process

Although it is today undisputed that courts have an inherent and residual discretion to prevent an abuse of the court's process, this was not always the case. For a long period of time, authority for such a proposition was sparse and was generally made in obiter dicta. (See R. v. Leroux (1928), 1928 455 (ON CA), 50 C.C.C. 52 (Ont. C.A.), at pp. 56-57, per Grant J.A. for the court, R. v. Bell (1929), 1929 280 (BC CA), 51 C.C.C. 388 (B.C.C.A.), at pp. 391-92, per Macdonald C.J.A., and R. v. Leclair (1956), 1956 526 (ON CA), 115 C.C.C. 297 (Ont. C.A.), at pp. 302-3, per Mackay J.A. for the court.)

In R. v. Osborn (1968), 4 C.C.C. 185, Jessup J.A., writing for the Ontario Court of Appeal, relied on the majority decision of the House of Lords in Connelly v. Director of Public Prosecutions, [1964] 2 All E.R. 401, to hold that every court, regardless of whether it exercises civil or criminal jurisdiction, has an inherent discretionary power to prevent an abuse of process through oppressive or vexatious proceedings. He cautioned, however, that such discretion should be exercised sparingly and only in exceptional circumstances (at pp. 189-91). On appeal before our Court (R. v. Osborn, 1970 22 (SCC), [1971] S.C.R. 184), three justices (Pigeon J., Martland and Judson JJ. concurring) held that no such discretion existed, three (Hall J., Ritchie and Spence JJ. concurring) held that it was not necessary to decide the question and the seventh, Fauteux J. (as he then was), simply concurred in the result, which left the state of the law in doubt.

The issue was again raised in Rourke v. The Queen, 1977 191 (SCC), [1978] 1 S.C.R. 1021, where the alleged abuse of process stems from a lengthy delay on the part of the police before arresting the accused. Pigeon J., writing for the majority, concluded at p. 1043:

For the reasons I gave in The Queen v. Osborn, 1970 22 (SCC), [1971] S.C.R. 184, I cannot admit of any general discretionary power in courts of criminal jurisdiction to stay proceedings regularly instituted because the prosecution is considered oppressive.

The minority, per Laskin C.J., concurring in the result, following Connelly v. Director of Public Prosecutions, supra, and Director of Public Prosecutions v. Humphrys, [1976] 2 All E.R. 497 (H.L.), would have recognized that criminal trial courts have an inherent jurisdiction to prevent abuse of their process, keyed to particular situations. Subsequent decisions of this Court have alluded in obiter dicta to the existence of a doctrine of abuse of process (Erven v. The Queen, 1978 19 (SCC), [1979] 1 S.C.R. 926, at p. 957 (per Pratte J.), R. v. Krannenburg, 1980 179 (SCC), [1980] 1 S.C.R. 1053, at p. 1061 (per Dickson J.), and Amato v. The Queen, 1982 31 (SCC), [1982] 2 S.C.R. 418, at pp. 454-55 (per Estey J.)). In the wake of Rourke, supra, provincial appellate courts divided on the issue. Some applied Rourke, supra, and held that the doctrine of abuse of process was not available in criminal proceedings (R. v. Lebrun (1978), 1978 2429 (BC CA), 7 C.R. (3d) 93 (B.C.C.A.)). Others applied the doctrine but restricted it to exceptional circumstances (Re Ball and The Queen (1978), 1978 2268 (ON CA), 44 C.C.C. (2d) 532 (Ont. C.A.), Re Abarca and The Queen (1980), 1980 2958 (ON CA), 57 C.C.C. (2d) 410 (Ont. C.A.), and R. v. Young (1984), 1984 2145 (ON CA), 40 C.R. (3d) 289 (Ont. C.A.)). R. v. Jewitt, 1985 47 (SCC), [1985] 2 S.C.R. 128, put an end to the controversy by unanimously affirming the availability of the doctrine of abuse of process in criminal proceedings. The Court, at pp. 136-37, borrowed the comments of Dubin J.A. in R. v. Young, supra, that a stay of proceedings should be granted where "compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency" or where the proceedings are "oppressive or vexatious". The Court also adopted, at p. 137, "the caveat added by the [Ontario] Court [of Appeal] in Young that this is a power which can be exercised only in the `clearest of cases'". Dickson C.J., at pp. 132-33, reproduced in part the following comments of Viscount Dilhorne of the House of Lords in Director of Public Prosecutions v. Humphrys, supra, at p. 509 and p. 511:

Where an indictment has been properly preferred . . . has a judge power to quash it and to decline to allow the trial to proceed merely because he thinks that a prosecution of the accused for that offence should not have been instituted? I think there is no such general power and that to recognise the existence of such a degree of omnipotence is, as my noble and learned friend, Lord Edmund‑Davies, has said, unacceptable in any country acknowledging the rule of law. But saying this does not mean that there is not a general power to control the procedure of a court so as to avoid unfairness. If at the time of Connelly it had been possible to try the murder and robbery charges together, then it might well have been held unfair, oppressive and an abuse of process for them to be tried separately, each charge being based on the same evidence. But that is very different from saying that a judge has power to stop a prosecution for perjury just because he thinks it should not have been brought and that it will show that the verdict at the trial at which it is alleged the perjury was committed should have been guilty.

If there is the power which my noble and learned friends think there is to stop a prosecution on indictment in limine, it is in my view a power that should only be exercised in the most exceptional circumstances. [Emphasis added.]

In R. v. Keyowski, 1988 74 (SCC), [1988] 1 S.C.R. 657, the Court unanimously reaffirmed the principle enunciated in R. v. Jewitt, supra. While she held that a stay of proceedings for abuse of process was not limited to cases where there is evidence of prosecutorial misconduct, Wilson J. for the Court, at p. 659, was careful to point out that the remedy will only be granted in the "clearest of cases". In R. v. Mack, 1988 24 (SCC), [1988] 2 S.C.R. 903, a stay of proceedings was entered on the basis that (per Lamer J., at p. 939) "in criminal law the doctrine of abuse of process draws on the notion that the state is limited in the way it may deal with its citizens". In R. v. Conway, 1989 66 (SCC), [1989] 1 S.C.R. 1659, writing for the majority, I expressed the following view, at p. 1667:

Under the doctrine of abuse of process, the unfair or oppressive treatment of an appellant disentitles the Crown to carry on with the prosecution of the charge. The prosecution is set aside, not on the merits (see Jewitt, supra, at p. 148), but because it is tainted to such a degree that to allow it to proceed would tarnish the integrity of the court. The doctrine is one of the safeguards designed to ensure "that the repression of crime through the conviction of the guilty is done in a way which reflects our fundamental values as a society" (Rothman v. The Queen, 1981 23 (SCC), [1981] 1 S.C.R. 640, at p. 689, per Lamer J.) It acknowledges that courts must have the respect and support of the community in order that the administration of criminal justice may properly fulfil its function. Consequently, where the affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases, then the administration of justice is best served by staying the proceedings. [Emphasis added.]

I added, however, on the same page, that a stay of proceedings for abuse of process will only be granted in the "clearest of cases". This was reiterated in R. v. Scott, 1990 27 (SCC), [1990] 3 S.C.R. 979, per Cory J. See also R. v. Potvin, 1993 113 (SCC), [1993] 2 S.C.R. 880.

I, therefore, conclude that, in criminal cases, courts have a residual discretion to remedy an abuse of the court's process but only in the "clearest of cases", which, in my view, amounts to conduct which shocks the conscience of the community and is so detrimental to the proper administration of justice that it warrants judicial intervention.

To conclude that the situation "is tainted to such a degree" and that it amounts to one of the "clearest of cases", as the abuse of process has been characterized by the jurisprudence, requires overwhelming evidence that the proceedings under scrutiny are unfair to the point that they are contrary to the interest of justice. As will be developed in more detail further in these reasons, the Attorney General is a member of the executive and as such reflects, through his or her prosecutorial function, the interest of the community to see that justice is properly done. The Attorney General's role in this regard is not only to protect the public, but also to honour and express 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.

Applying this test to the facts of this case, it is evident that in no way did the conduct of the prosecution meet the high threshold required to constitute an abuse of process. There is not one iota of evidence that the Crown prosecutor's conduct was prompted by bad faith or an improper motive, a fact recognized by Cameron J.A., nor did the prosecution intend to frustrate the administration of justice or even to circumvent the rules of criminal law regarding interlocutory appeals contrary to what Marshall J.A. suggests. I agree with Cameron J.A. when she writes at p. 290:

Counsel for the respondent, in oral submission, argued that this appeal is tantamount to an interlocutory appeal. I do not accept that submission. This is not a request, before verdict, for a determination of the correctness of a ruling so that a party may adjust the presentation of its case in light of the decision. Had the trial judge been upheld by this court, the Crown would not have been able to then proceed with the trial.

Goodridge C.J., for his part, wrote, at p. 306:

If the power to order a new trial is discretionary, upon what basis is a new trial to be denied the Crown in a successful appeal from acquittal. Logically the only basis upon which a new trial could be denied is if the ordering of a new trial would be an abuse of process.

After citing Wilson J. in R. v. Keyowski, supra, Goodridge C.J. continued:

The test for granting a stay is whether "compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency". If the court has power to deny a new trial in a case such as this, the test should be the same.

And further at p. 307:

The respondent should not be heard to complain unless the decision made by Crown counsel was so clearly wrong as to render what would amount to a delayed guilty verdict an abuse of process and, as earlier said, that position is one that should be taken at trial and not on appeal.

I agree with Goodridge C.J. that no abuse of process has been demonstrated here.

That the Crown prosecutor may have acted precipitously or may have exercised poor judgment in deciding not to adduce further evidence, even if true, fails to establish misconduct of such a nature as to shock the community's sense of fairness or to warrant the application of the doctrine of abuse of process.

Moreover, Sopinka J.'s assertion that this case is a borderline case, and the test of reasonableness which he applies, only confirm the unavailability of the doctrine of abuse of process. In applying that doctrine here, the majority of the Court of Appeal was, in my view, in error.

That being said, over and above the doctrine of abuse of process which permeates the whole of the criminal process, does s. 686(4) of the Criminal Code confer a discretion on an appellate court other than that to allow or dismiss a Crown's appeal when it concludes that there was a reversible error in the trial court? It is to this question that I now turn.

2. The Discretion under [s. 686(4)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)

Although my colleague agrees with the Crown that the test set out in Vézeau v. The Queen, 1976 7 (SCC), [1977] 2 S.C.R. 277, may not be appropriate in a Crown appeal from a directed verdict of acquittal by reason of no evidence, he goes on to say that Vézeau, supra, did not purport to exhaust the discretion conferred by s. 686(4). In his opinion, at p. 646, "there is support in our jurisprudence for a limited discretion on the part of the Court of Appeal to decline to allow an appeal in some circumstances in which the Crown unreasonably shuts down its case with the result that a verdict of acquittal is directed". I respectfully disagree.

My colleague relies on R. v. Banas and Haverkamp (1982), 1982 2107 (ON CA), 65 C.C.C. (2d) 224 (Ont. C.A.), R. v. Voykin (1986), 1986 ABCA 154, 29 C.C.C. (3d) 280 (Alta. C.A.), and R. v. Bailey (1983), 1983 3569 (ON CA), 4 C.C.C. (3d) 21 (Ont. C.A.). As Goodridge C.J. pointed out, at p. 304, all of those cases "seem to have involved a situation where new trials were ordered because the successful appeals from acquittal occurred in cases where critical evidence had been ruled inadmissible". In Bailey, supra, which purported to follow Banas, the circumstances were such that there did not seem to be anything in the record to indicate that the evidence ruled inadmissible was critical. My colleague Sopinka J. also relied on R. v. Whittle (1992), 1992 12777 (ON CA), 78 C.C.C. (3d) 49 (Ont. C.A.). As this case is on appeal before us, I prefer not to comment on it.

However, had the conduct of the Crown in those cases been such that a stay of proceedings would have been warranted, as Martin J.A. seems to infer in his obiter dicta in Banas, supra, it might very well be that the Court would have found an abuse of process. It may well be that a Court of Appeal might find an abuse of process in a case where the Crown refuses to continue a trial, despite sufficient evidence to found a verdict, for the sole purpose of obtaining an interlocutory appeal on an adverse ruling. Such an appeal would not be available to the accused in the parallel situation, and the accused would be forced to undergo an unnecessary second trial. As such, a case might be made that the Crown's conduct constitutes an unfair and abusive exercise of the prosecutorial discretion conferred upon it.

None of those cases relied on by my colleague Sopinka J., in my view, supports the proposition that s. 686(4) provides for a limited discretion in a court of appeal other than the general discretion of courts to control their process and prevent its abuse.

Furthermore, there is no policy consideration that warrants such a broad interpretation of s. 686(4) of the Criminal Code. My colleague does not mention any, nor do the parties. Quite the contrary, an efficient administration of justice warrants that courts not meddle in a trial within a trial, base their finding on pure speculation and second-guess the prosecution.

In holding that under s. 686(4) of the Code an appellate court is entitled to consider whether the Crown has acted unreasonably, my colleague invites the courts of appeal to invade the exclusive domain of the Crown and to interfere with prosecutorial discretion, as well as to foster rulings based on pure speculation as to what might have happened had the prosecution chosen a different path. This, in my view, is not only impermissible and contrary to the rule of law but also contrary to the interest in a good and efficient administration of justice.

For these reasons, I am of the view that s. 686(4) of the Criminal Code does not confer a court of appeal any discretion, however limited, beyond the general power to control its process in case of abuse. I now turn to the issue of prosecutorial discretion.

3. Prosecutorial Discretion

My colleague himself, at p. 649, alluding to the type of discretion he sees in s. 686(4) of the Criminal Code, warns that courts "should be mindful of the fact that exercising this power must be done sparingly in that it constitutes a review of prosecutorial discretion". This, at a minimum, indicates the danger with which such interference by courts is fraught. There are other dangers, not the least of which involves the possibility of interfering with the separation of powers under our constitution.

In contrast to the U.S. Constitution, no general "separation of powers" doctrine is spelled out in the Constitution Act, 1867. However, as Professor Peter W. Hogg notes in Constitutional Law of Canada (3rd ed. 1992), at pp. 184-85, such a separation of powers does in fact exist. As Dickson C.J. wrote, for the Court, in Fraser v. Public Service Staff Relations Board, 1985 14 (SCC), [1985] 2 S.C.R. 455, at pp. 469-70:

There is in Canada a separation of powers among the three branches of government -- the legislature, the executive and the judiciary. In broad terms, the role of the judiciary is, of course, to interpret and apply the law; the role of the legislature is to decide upon and enunciate policy; the role of the executive is to administer and implement that policy. [Emphasis added.]

(See also: Sobeys Stores Ltd. v. Yeomans and Labour Standards Tribunal (N.S.), 1989 116 (SCC), [1989] 1 S.C.R. 238, Beauregard v. Canada, 1986 24 (SCC), [1986] 2 S.C.R. 56, Douglas/Kwantlen Faculty Assn. v. Douglas College, 1990 63 (SCC), [1990] 3 S.C.R. 570, Patrice Garant, Droit administratif, vol. 2 (3rd ed. 1991), and Gilles Pépin, "La compétence des tribunaux administratifs de décider de la constitutionnalité d'une loi, notamment de sa compatibilité avec la Charte canadienne des droits et libertés", in Canadian Bar Association -- Continuing Legal Education Seminar on Administrative Law, Administrative Law: Past Present and Future Where We've Been (Ottawa 1989).) It is manifest that, as a matter of principle and policy, courts should not interfere with prosecutorial discretion. This appears clearly to stem from the respect of separation of powers and the rule of law. Under the doctrine of separation of powers, criminal law is in the domain of the executive, as Jean-Claude Hébert explains in "Le contrôle judiciaire de certains pouvoirs de la couronne", in Droit pénal - Orientations nouvelles (1987), 129, at pp. 136-37:

[translation] In Canada, it is the executive which assumes primary responsibility for administering the criminal law, as was held by a majority of the Supreme Court in Skogman v. The Queen. This stems from the fact that there must be an authority which decides whether the judicial process should be set in motion and what form the prosecution will take. Decisions concerning the operation of criminal justice involve important considerations relating to the public interest. From this perspective, the actions of the Attorney General are hybrid in that there is a perpetual moving to and fro between his legal and political functions. That is why the Attorney General must answer politically to Parliament for the manner in which the Crown exercises its powers. [Emphasis added.]

Donna C. Morgan in "Controlling Prosecutorial Powers -- Judicial Review, Abuse of Process and Section 7 of The Charter" (1986-87), 29 Crim. L.Q. 15, at pp. 20‑21, probes the origins of prosecutorial powers:

Most [prosecutorial powers] derive...from the royal prerogative, defined by Dicey as the residue of discretionary or arbitrary authority residing in the hands of the Crown at any given time. Prerogative powers are essentially those granted by the common law to the Crown that are not shared by the Crown's subjects. While executive action carried out under their aegis conforms with the rule of law, prerogative powers are subject to the supremacy of Parliament, since they may be curtailed or abolished by statute.

Still other powers that derive directly from the prerogative now reside in the Criminal Code.... Others ... have been limited or otherwise modified by Parliament. Finally, another group of prosecutorial powers ... are creatures of statute.

And at pp. 18-19, she expands on the independence of prosecutors:

Along with the exalted status of his office come high expectations as to the Attorney-General's performance of his functions. A large measure of constitutional trust is reposed within him, and he bears a heavy obligation to conduct himself with dignity and fairness. In many situations, he is described as acting either judicially or quasi‑judicially. When exercising his "grave" discretion in prosecutorial matters, he must take into account not only the position of the individual, but what the public interest demands. In doing so, he must stand alone, acting independently of political or other external influences. He is to be neither instructed or restrained, save by his final accountability to Parliament. [Emphasis added.]

In "Prosecutorial Discretion" (1987‑88), 30 Crim. L.Q. 219, at p. 219, David Vanek explains the meaning of prosecutorial discretion:

Prosecutorial discretion refers to the discretion exercised by the Attorney‑General in matters within his authority in relation to the prosecution of criminal offences. The Attorney‑General is the chief law officer of the Crown and a member of the Cabinet. He heads a ministry of the government that exercises the authority over the administration of justice and the constitution and the maintenance and organization of the courts that is conferred upon the provincial government by the constitution.... [T]he Attorney-General is the prosecutor and hence, in effect, a litigant in every criminal case except.... In practice, the Attorney‑General acts in individual cases through the numerous Crown Attorneys and Assistant Crown Attorneys who are appointed as his agents to prosecute for criminal offences on his behalf. [Emphasis added.]

In "Prosecutorial Discretion: A Reply to David Vanek" (1987‑88), 30 Crim. L.Q. 378, at pp. 378‑80, J. A. Ramsay expands on the rationale underlying judicial deference to prosecutorial discretion:

Crown counsel in Ontario are responsible ultimately to the Attorney‑General, who is responsible to the Legislature.... The Ministry of the Attorney‑General exercises careful supervision of prosecutions for which it is responsible. Proceedings are conducted in public and any member of the public is free to bring the conduct of Crown counsel to the attention of the Attorney‑General. In practice, Crown counsel must be prepared to account for their actions on every single case they prosecute.

It is fundamental to our system of justice that criminal proceedings be conducted in public before an independent and impartial tribunal. If the court is to review the prosecutor's exercise of his discretion the court becomes a supervising prosecutor. It ceases to be an independent tribunal. [Emphasis added.]

That courts have been extremely reluctant to interfere with prosecutorial discretion is clear from the case law. They have been so as a matter of principle based on the doctrine of separation of powers as well as a matter of policy founded on the efficiency of the system of criminal justice and the fact that prosecutorial discretion is especially ill-suited to judicial review.

In Re Balderstone and The Queen (1983), 1983 2803 (MB CA), 8 C.C.C. (3d) 532 (Man. C.A.), (leave to appeal refused by the Supreme Court of Canada on December 15, 1983, [1983] 2 S.C.R. v), Monnin C.J. wrote, at p. 539:

The judicial and the executive must not mix. These are two separate and distinct functions. The accusatorial officers lay informations or in some cases prefer indictments. Courts or the curia listen to cases brought to their attention and decide them on their merits or on meritorious preliminary matters. If a judge should attempt to review the actions or conduct of the Attorney‑General ‑‑ barring flagrant impropriety ‑‑ he could be falling into a field which is not his and interfering with the administrative and accusatorial function of the Attorney-General or his officers. That a judge must not do. [Emphasis added.]

La Forest J. stated in R. v. Beare, 1988 126 (SCC), [1988] 2 S.C.R. 387, at pp. 410-11:

Discretion is an essential feature of the criminal justice system. A system that attempted to eliminate discretion would be unworkably complex and rigid. Police necessarily exercise discretion in deciding when to lay charges, to arrest and to conduct incidental searches, as prosecutors do in deciding whether or not to withdraw a charge, enter a stay, consent to an adjournment, proceed by way of indictment or summary conviction, launch an appeal and so on.

The Criminal Code provides no guidelines for the exercise of discretion in any of these areas. The day to day operation of law enforcement and the criminal justice system nonetheless depends upon the exercise of that discretion.

This Court has already recognized that the existence of prosecutorial discretion does not offend the principles of fundamental justice; see R. v. Lyons, supra, at p. 348; see also R. v. Jones, 1986 32 (SCC), [1986] 2 S.C.R. 284, at pp. 303‑4. The Court did add that if, in a particular case, it was established that a discretion was exercised for improper or arbitrary motives, a remedy under s. 24 of the Charter would lie.... [Emphasis added.]

(See also: United States of America v. Cotroni, 1989 106 (SCC), [1989] 1 S.C.R. 1469, R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309, at p. 348, R. v. Verrette, 1978 208 (SCC), [1978] 2 S.C.R. 838, at p. 350, and Smythe v. The Queen, 1971 831 (SCC), [1971] S.C.R. 680, at p. 686.)

Our Court in R. v. T. (V.), 1992 88 (SCC), [1992] 1 S.C.R. 749, at p. 761, commented on the rationale for not interfering with prosecutorial discretion:

It is important to understand the rationale for this judicial deference to the prosecutor's discretion. In this regard, the reasons of Viscount Dilhorne in Director of Public Prosecutions v. Humphrys, [1976] 2 All E.R. 497 (H.L.), at p. 511, are instructive:

A judge must keep out of the arena. He should not have or appear to have any responsibility for the institution of a prosecution. The functions of prosecutors and of judges must not be blurred. If a judge has power to decline to hear a case because he does not think it should be brought, then it soon may be thought that the cases he allows to proceed are cases brought with his consent or approval. (Emphasis added.)

Consider also Powell J.'s comments in Wayte v. United States, 470 U.S. 598 (1985). Though the factual content of the case at bar is fundamentally different from that with which the U.S. Court was faced (selective prosecution of violators of a law requiring Selective Service registration), his caution respecting the institutional competence of the courts bears repeating. At pages 607‑8 Powell J. remarks:

This broad discretion rests largely on the recognition that the decision to prosecute is particularly ill‑suited to judicial review. Such factors as the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake. Judicial supervision in this area, moreover, entails systemic costs of particular concern. Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor's motives and decision-making to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government's enforcement policy. All these are substantial concerns that make the courts properly hesitant to examine the decision whether to prosecute. [Emphasis added, in addition to material emphasized in original, from "Such factors . . . to undertake."]

Since a myriad of factors can affect a prosecutor's decision either to bring charges, to prosecute, to plea bargain, to appeal, etc., courts are ill-equipped to evaluate those decisions properly. (See: Steven Alan Reiss, "Prosecutorial Intent in Constitutional Criminal Procedure" (1987), 135 U. Pa. L. Rev. 1365, at p. 1373.)

The judicial review of prosecutorial discretion may also involve disclosure by the Crown of precise details about the process by which it decides to charge, to prosecute and to take other actions. Such a procedure could generate masses of documents to review and could eventually reveal the Crown's confidential strategies and preoccupations. For example, the confidential nature of the charging process serves important institutional functions, including rehabilitative goals and the goal of increasing general deterrence. The latter is met only by preventing the public from knowing which crimes will be given emphasis in enforcement. Professor Richard S. Frase ("The Decision to File Federal Criminal Charges: A Quantitative Study of Prosecutorial Discretion" (1979-1980), 47 U. Chi. L. Rev. 246) points to further elements which militate against the review of prosecutorial discretion, at p. 297:

... (3) publication [in a judicial review, of the Crown's guidelines or policies] inevitably would result in more frequent attempts to invoke judicial review of prosecution policy and decisions, and such review would further clog an already overburdened criminal court system; and (4) if prosecutors knew that their policy would be published, they would be reluctant to formulate it, or to change it once it was formulated.

Indeed, confidentiality permits prosecutors to employ flexible and multifaceted enforcement policies, while disclosure promotes inflexible and static policies which are not necessarily desirable.

Moreover, should judicial review of prosecutorial discretion be allowed, courts would also be asked to consider the validity of various rationales advanced for each and every decision, involving the analysis of policies, practices and procedure of the Attorney General. The court would then have to "second-guess" the prosecutor's judgment in a variety of cases to determine whether the reasons advanced for the exercise of his or her judgment are a subterfuge. This method of judicial review is not only improper and technically impracticable, but, as Kozinski J. observed in United States v. Redondo-Lemos, 955 F.2d 1296 (9th Cir. 1992), at p. 1299:

Such decisions [to charge, to prosecute and to plea-bargain] are normally made as a result of a careful professional judgment as to the strength of the evidence, the availability of resources, the visibility of the crime and the likely deterrent effect on the particular defendant and others similarly situated. Even were it able to collect, understand and balance all of these factors, a court would find it nearly impossible to lay down guidelines to be followed by prosecutors in future cases. We would be left with prosecutors not knowing when to prosecute and judges not having time to judge. [Emphasis added.]

Such a situation would be conducive to a very inefficient administration of justice. Furthermore, the Crown cannot function as a prosecutor before the court while also serving under its general supervision. The court, in turn, cannot both supervise the exercise of prosecutorial discretion and act as an impartial arbitrator of the case presented to it. Judicial review of prosecutorial discretion, which would enable courts to evaluate whether or not a prosecutor's discretion was correctly exercised, would destroy the very system of justice it was intended to protect (United States v. Redondo-Lemos, supra, at p. 1300).

In Director of Public Prosecutions v. Humphrys, supra, at p. 511, Viscount Dilhorne provides a further reason why judicial screening of prosecutorial discretion is not mandated:

A judge must keep out of the arena. He should not have or appear to have any responsibility for the institution of a prosecution. The functions of prosecutors and of judges must not be blurred. If a judge has power to decline to hear a case because he does not think it should be brought, then it soon may be thought that the cases he allows to proceed are cases brought with his consent or approval. [Emphasis added.]

In our system, a judge does not have the authority to tell prosecutors which crimes to prosecute or when to prosecute them. As well, in United States v. Giannattasio, 979 F.2d 98 (7th Cir. 1992), the trial judge had originally directed the prosecutor to select only five counts because the former had only a week in which he could hear the case. In the trial judge's view, the government would get the same benefit from five convictions as from fifteen. When the case was called for trial, the prosecutor refused to proceed on the basis of five counts and the trial judge dismissed the entire indictment. Writing for the Court of Appeals, Posner J. reversed the order of dismissal and said, at p. 100:

If Dr. Giannattasio committed fifteen Medicare frauds, a judge cannot tell the Justice Department to prosecute him for only five of the frauds, or to prosecute him for five now and the rest later, if necessary. Of course there are judicially enforceable checks on discretion to indict. But they are protections for defendants, not for judges. [Emphasis added.]

I agree with Sidney I. Lezak and Maureen Leonard ("The Prosecutor's Discretion: Out of the Closet -- Not Out of Control" (1984), 63 Or. L. Rev. 247, at p. 251) that:

Fifth, law enforcement considerations support continued prosecutorial discretion. The need to obtain information about other crimes or other criminals, and the difficulty of proving the crime at trial often play a part in decisions to grant immunity or reduce charges.

Sixth, although the pressure of public opinion is a "wild card" factor which is difficult to evaluate, aggressive news coverage or oversight of specific criminal proceedings by special interest groups affects the exercise of discretion. Hence, public opinion assumes an increasingly important position in the prosecutor's decisional matrix. An interesting example is the change in prosecution policies that appeared when it became increasingly unpopular to convict draft evaders and protesters of the Vietnam War. [Emphasis added.]

(See, also: Ian Temby, Q.C., "Prosecution Discretions and the Director of Public Prosecutions Act 1983" (1985), 59 Austl. L.J. 197, at pp. 197, 199-200 and 202.)

My colleague's invitation to the court of appeal to interfere with prosecutorial discretion, absent abuse of process, goes against the grain of doctrine and jurisprudence. It also carries with it the dangers that have been outlined above. In my view, there is neither a need nor a justification for an interpretation of s. 686(4) of the Criminal Code which extends the discretion of the courts in this manner. As Goodridge C.J. underlined, the wording of s. 686(4) of the Criminal Code does not warrant such an interpretation, particularly in view of our Court's decision in Welch v. The King, 1950 8 (SCC), [1950] S.C.R. 412. Principle and policy dictate against it, and the case law does not favour it.

For these reasons, I conclude that courts of appeal possess no residual discretion under s. 686(4).

Had I agreed with my colleague that such a discretion does exist, I still would have come to the conclusion that the Court of Appeal should have ordered a new trial instead of inscribing a verdict of acquittal for the following reasons.

The only evidence which the Court of Appeal could and did assess was the evidence presented at the voir dire and at the preliminary inquiry.

On the one hand, it is clear that the evidence led at a voir dire to establish the admissibility of evidence relevant to issues in the case, does not assist in the determination of the innocence or guilt of an accused. This evidence deals with facts that have nothing to do with the commission of the offence; e.g. the means by which the relevant evidence was obtained.

On the other hand, with respect to the preliminary inquiry, the observation of de Grandpré J. in Caccamo v. The Queen, 1975 11 (SCC), [1976] 1 S.C.R. 786, at pp. 809‑10, that "the sole purpose of the preliminary inquiry is to satisfy the magistrate that there is sufficient evidence to put the accused on trial and that, therefore, the Crown has the discretion to present only that evidence which makes out a prima facie case", is appropriate. Moreover, as Judson J. emphasized in Patterson v. The Queen, 1970 180 (SCC), [1970] S.C.R. 409, at p. 412:

The purpose of a preliminary inquiry is clearly defined by the Criminal Code -‑ to determine whether there is sufficient evidence to put the accused on trial. It is not a trial and should not be allowed to become a trial. We are not concerned here with the power of a trial judge to compel production during the trial nor with the extent to which the prosecution, in fairness to an accused person, ought to make production after the preliminary hearing and before trial.

It should also be underlined that evidence adduced at a preliminary inquiry is incomplete. Indeed, a number of witnesses, who will be called to testify at trial, are not called at the preliminary inquiry and vice versa. In my view, therefore, the evidence adduced at a preliminary inquiry does not properly reflect the whole of the evidence that will be presented at trial on the merits, nor does it give sufficient indication of the strength of the evidence that will be presented at trial.

As such, it is highly speculative to conjecture about the verdict that could result at trial based on the evidence presented at the preliminary inquiry and at the voir dire. To conclude otherwise would force the Crown to present the whole of its case at the preliminary inquiry so that, if at trial there is an adverse ruling excluding evidence following which the Crown decides to present no further evidence, it will not be penalized. The Court of Appeal would then have access to almost all of the evidence that would have been put to the jury at the trial and would, therefore, be able to assess the whole of the evidence. To enforce such a rule would lead to an unnecessary waste of resources and time, since cases where the Crown will decide not to adduce further evidence and to appeal, pursuant to the exclusion of evidence, are rare and always involve the risk that the appeal will be dismissed. Speculation about the verdict cannot serve as the basis for review of an exercise of prosecutorial discretion that falls short of an abuse of process.

Finally, I would also conclude that the Court of appeal should have ordered a new trial on the basis that the excluded evidence was crucial to the Crown's case. As Crown counsel has argued in his factum:

There was evidence of alcohol consumption other than the results of the analysis of the Respondent's breath. However, none of this evidence was as compelling, as incriminating or as important as the evidence that was improperly excluded. The remaining evidence may have been sufficient to raise a prima facie case but the Crown would not have been able to obtain a conviction on those charges on the basis of the remaining evidence.

And further:

The other evidence of impairment in this case consisted almost entirely of the observations of police officers. Their evidence in this case, while admissible, is of no more weight than [that of] other witnesses that testified that the Respondent's ability to drive was not impaired. Particularly significant is the evidence of Mr. Jeffrey Porter. Mr. Porter was in the vehicle at and before the accident and testified that the Respondent seemed okay to drive.... While the police officers could comment on the Respondent's degree of intoxication, they could not comment on whether the Respondent's ability to drive was impaired. This is the crucial point in the type of charges involved in this case and this illustrates why the evidence of Ms. Dittmar was so important for the Crown to be able to prove the charges contained in the Indictment. [Emphasis in the original.]

As my colleague Sopinka J. has stated, at p. 650, in cases of impaired driving causing death or bodily harm:

... the appellant would have to demonstrate that: (i) the respondent was operating the vehicle in question; (ii) the respondent's ability to drive was impaired by alcohol; and (iii) the impaired driving ability of the respondent caused the death and bodily harm which occurred. [Emphasis added.]

Clearly, the first condition would be met as there was ample evidence that the respondent had been driving the vehicle in question. However, to meet the next two conditions, the appellant would have had to prove that the respondent's ability to drive was impaired by alcohol. Thus, it was crucial for the Crown to be able to present its evidence on this issue, especially since it appeared that the evidence which would be adduced at trial on this issue was going to be contradictory.

Three friends of the respondent, Porter, Aylward and McGrath, testified at the preliminary hearing that the respondent had consumed between six and eight beers in a period of approximately three to four hours which ended approximately an hour and a half before his driving. Two police officers, Stanley and Tilley, both testified to the respondent's showing physical signs of impairment, including bloodshot and watery eyes, a strong smell of alcohol, slurred speech, and staggering. However, defence counsel suggested on the voir dire that the accident itself would have caused the respondent to be "pretty damn shaken up". From this, we can infer that the defence counsel was trying to suggest reasons for these physical characteristics described by the police officers other than consumption of alcohol. In other words, it could be argued that the shock of the accident and the knowledge of the death of a passenger, who was a friend, caused most of these symptoms.

Both of the police officers testified that they formed the opinion that the respondent was under the influence of alcohol. Constable Jackman believed that the respondent was impaired while Constable Tilley was not sure if the alcohol had affected the respondent's judgment. Contrasted with the defence's explanation of the respondent's conduct, the observations of the police officers demonstrate that there could be conflicting evidence led at trial on the issue of impairment. Therefore, it was necessary for the Crown to present the breathalyzer evidence combined with the expert evidence on its meaning in order to assess whether the respondent was impaired. This was clearly the best and most convincing evidence even without assuming that the other evidence would not have been contradicted. Of course it would have been challenged.

Elizabeth Dittmar, the declared expert in absorption and elimination of alcohol from the blood, offered an opinion at the preliminary inquiry regarding the degree of impairment and the effect of such impairment which did not rely on the breathalyzer result. Her opinion was given in answer to a hypothetical question based on the quantity of alcohol consumed by the respondent, the time frame, the physical descriptions given by the police officers, and the respondent's size. However, it appears clearly that, without the breathalyzer, the evidence she was able to give was weak. For instance, Dittmar was only able to estimate that the respondent's blood alcohol level would have been between 35 and 120 mg/100 ml of blood at the time of the accident. However, she stated that, when the alcohol level reaches 100 mg/100 ml, she would conclude with certainty that the ability of a person is impaired. Consequently, because there was no way of knowing if the respondent's alcohol level was under or over 100 mg/100 ml, there could be no conclusive determination as to the respondent's ability to drive if the court only took into account evidence of alcohol consumption other than that produced by the breathalyzer.

Moreover, this evidence was far from compelling in this case because the blood alcohol level provided by the breathalyzer evidence read 170 mg/100 ml an hour and a half after the accident. This implied, according to the expert Dittmar, that, at the time of the accident, the respondent's alcohol level would have been between 185 and 210 mg/100 ml of blood. Thus, it appears that this evidence would have made possible a conclusive determination as to the impairment of the respondent and its influence on his driving ability since it showed clearly his blood alcohol level was over 100 mg/100 ml.

From this, one can conclude that had the Crown presented further evidence at trial, after the trial judge had ruled the breathalyzer evidence inadmissible, the value of the expert's evidence would have been significantly reduced and would not necessarily have assisted the Crown in proving that the respondent's ability to drive was in fact impaired. Most likely, the Crown would have been unable to prove its case beyond a reasonable doubt. The breathalyzer evidence was crucial to the Crown's case in that it would have allowed the Crown to present expert evidence that would have proved without a doubt that the respondent's ability to drive was impaired, an element which is crucial in cases of impaired driving causing death or bodily harm. In the present case, this evidence could not realistically be adduced in such a convincing way by any other means.

Furthermore, this evidence was of the outmost importance because it seemed that the respondent was raising alternative causes for the accident; i.e., the wet and slippery road conditions and the car's condition. Indeed, Constable Harnum testified that, at the time of the accident, "the road conditions were wet". Mr. Porter, a passenger, testified that the road was slippery and that, just prior to the accident, the rear of the vehicle began to slide. The eyewitness, William Keary, indicated that the vehicle slid around the corner before impact and that the road conditions were "damp". The mechanic who inspected the vehicle after the accident testified that one of the tires was bald and the left front brake was worn to the point that no lining remained. When the respondent's counsel suggested to the mechanic that the accident could have resulted from a blown tire, he answered that he did not check for that and could not say that it was not so. Therefore, it appears that without the breathalyzer evidence, the Crown may not have been in a position to prove that the respondent's ability to drive was impaired by alcohol and that the impaired driving ability of the respondent caused the death and bodily harm which occurred. Thus, I am of the view that this evidence was crucial to the Crown's case.

I conclude, therefore, that even had I shared my colleague's view that s. 686(4) of the Criminal Code confers a residual discretion to a court of appeal, which I do not, I would hold that the facts of this case do not point to an unreasonable decision on the part of the Crown such as to warrant the exercise of that discretion.

I base my reasons, however, on the fact that a court of appeal does not have the discretion, under s. 686(4) of the Criminal Code, absent abuse of process, to decline to allow an appeal when a reversible error of law is found in the trial judge's decision.

In the result, I would allow the appeal, reverse the judgment of the Court of Appeal and order a new trial.

The reasons of Sopinka, Cory and Major JJ. were delivered by

By Sopinka J. (dissenting)

SOPINKA J. (dissenting) -- The issue in this appeal concerns the power of a court of appeal under s. 686(4) of the Criminal Code, R.S.C., 1985, c. C-46, to dismiss an appeal, notwithstanding an error at trial, on the ground that the prosecutor in an unreasonable exercise of prosecutorial discretion deliberately refrained from calling available evidence resulting in a directed verdict of acquittal. I would dismiss the appeal on the ground that the court of appeal has a limited discretion to dismiss an appeal in such circumstances and that this was a proper case for its exercise.

Facts

On April 20, 1989, the respondent was involved in a motor vehicle accident. The car which the respondent was driving contained several passengers. One of the passengers died following the accident and another two were injured, one of them seriously. The respondent was charged with one count of impaired driving causing death and two counts of impaired driving causing bodily harm. The respondent's trial was held before Aylward J. of the Supreme Court of Newfoundland, Trial Division, and a jury.

The evidence revealed that Constable Stanley, who arrived first at the scene of the accident cautioned the respondent, advised him of his rights under s. 10 of the Canadian Charter of Rights and Freedoms and made a breathalyzer demand. Stanley had determined from other persons at the scene that the respondent was the person driving the vehicle and noted that he smelled of alcohol and was staggering. Stanley then took the respondent to the police station and delivered him into the control of Constable Tilley, who asked him if he understood his right to contact counsel and assisted the respondent in doing so. In fact, a telephone book was supplied and Tilley called several lawyers before finding one of them available. When the respondent's counsel was contacted, Tilley informed him that the officers had received word that one of the passengers had died. Tilley then turned the phone over to the respondent so that he could have a private discussion with his counsel. Prior to the respondent's conversation with his lawyer, he heard the officers say that one of the passengers had died and was told that two others were in serious condition.

After consulting with legal counsel, the respondent refused to provide the police with a sample of his breath. However, once informed that a charge for failing to comply with a demand for a breath sample would be laid if he refused, the respondent complied. His counsel telephoned the station after the first sample was given and spoke with the respondent again. After this, a second sample was taken. Both samples contained 170 mg of alcohol in 100 ml of blood.

The respondent indicated that he was aware that one friend had died and two others were seriously injured, that the demand for a breath sample indicated that if he failed he would be charged with impaired driving and that if he refused to provide the breath sample he could be charged with refusing to do so. At trial, the respondent's counsel objected to the admission of the breath samples results on the ground that the police had acted in violation of ss. 10(a) and (b) of the Charter.

A voir dire on the admissibility of the breath samples and statements made by the respondent at the police station was held and Aylward J. concluded that the evidence ought to be excluded under s. 24(2) of the Charter because the respondent had been denied his rights under s. 10 of the Charter. Crown counsel requested a recess and, after 30 minutes, returned to tell the court that it did not plan to call further evidence. Given that, prior to the voir dire, the Crown had called only one witness, a police officer who took photographs of the aftermath of the accident, the trial judge charged the jury to deliver a verdict of acquittal. On January 29, 1991, the respondent was acquitted.

The appellant appealed to the Court of Appeal of Newfoundland on the ground that the analysis of the breath samples should have been admitted into evidence. On April 6, 1993, the Court of Appeal dismissed the appeal from acquittal. The majority of the Court concluded that the trial judge had erred in excluding evidence which was unarguably important, but that the appeal should be dismissed on the basis that the appeal had been unnecessary given that the Crown could have called further substantial evidence at trial, but chose not to. Goodridge C.J., dissenting, held that the provisions of s. 686(4) of the Criminal Code were mandatory and that s. 686(4) required the court to order a new trial if it determined that the appeal should be allowed.

Judgments Below

Supreme Court of Newfoundland (Aylward J., ruling on voir dire)

Aylward J. determined that the s. 10 rights of the respondent had been violated because he had not been made aware of the extent of the jeopardy which he faced prior to his consultation with counsel. He then determined that, pursuant to s. 24(2) of the Charter, the breath sample results should be excluded since the Charter violation was serious and the admission of the evidence would bring the administration of justice into disrepute. Given that the Crown elected to call no further evidence, he directed the jury to deliver a verdict of acquittal, and the respondent was acquitted.

Court of Appeal (1993), 1993 3372 (NL CA), 105 Nfld. & P.E.I.R. 271

Marshall J.A.

Relying on this Court's decision in R. v. Smith, 1991 91 (SCC), [1991] 1 S.C.R. 714, Marshall J.A. concluded that the ss. 10(a) and (b) rights of the respondent had not been violated since, although he had not been told of the exact charges he faced, he was aware of the purpose of performing the breathalyzer and the circumstances in which it was performed. As such, he concluded that the breath sample evidence should not have been excluded.

In determining whether the appeal should be allowed, Marshall J.A. noted that the appellant elected not to call further evidence after the ruling on the voir dire, even though there was substantial other evidence relating to the impairment of the respondent, apart from the breath samples. In these circumstances, he concluded that the appellant had effectively launched an interlocutory appeal of the adverse evidentiary ruling. Given that such an appeal was not available to an accused in a criminal trial, he determined that it would unfairly prejudice the respondent to allow the appeal of the appellant and order a new trial.

Relying on the ability of an appellate court to stay proceedings as an abuse of process and the decisions in R. v. Banas and Haverkamp (1982), 1982 2107 (ON CA), 65 C.C.C. (2d) 224 (Ont. C.A.), and R. v. Voykin (1986), 1986 ABCA 154, 29 C.C.C. (3d) 280 (Alta. C.A.), Marshall J.A. concluded that the appeal should be dismissed. In so doing, he made the following findings at pp. 280-81:

... the additional evidence was ostensibly of sufficient weight and substance to have sustained a conviction, if accepted by the jury, without the breathalyzer testimony. Accordingly, it could not have been considered futile for the [appellant] to have continued with the trial after the breathalyzer results had been ruled inadmissible. In such circumstances it is not tenable to view this appeal in its essence and nature as other than an interlocutory motion by the [appellant] aimed at the admission of excluded evidence. While the breathalyzer was unarguably important evidence, it was not the only substantial evidence to which the [appellant] had recourse.

Cameron J.A. concurring

Cameron J.A. also concluded that there had been no s. 10 Charter violation and that the breath sample evidence should therefore not have been excluded. While she did not agree that the appeal was interlocutory in nature because it was (at p. 290) "not a request, before verdict, for a determination of the correctness of a ruling so that a party [could] adjust the presentation of its case in light of the decision", Cameron J.A. agreed that the appeal should be dismissed.

Cameron J.A. found that, since the appellant had met the burden of demonstrating the verdict would not necessarily have been the same had the error not been made by the trial judge, s. 686(4) required the Court of Appeal to order a new trial unless an abuse of process could be shown. Relying on the decisions of this Court in R. v. Mack, 1988 24 (SCC), [1988] 2 S.C.R. 903, and R. v. Jewitt, 1985 47 (SCC), [1985] 2 S.C.R. 128 and on Banas, supra, R. v. Bailey (1983), 1983 3569 (ON CA), 4 C.C.C. (3d) 21 (Ont. C.A.), and Voykin, supra, she found that, although no prejudice to the respondent had been demonstrated, it could be inferred from the length of the delay and that, given the substantial other evidence available to the appellant, the appeal had been unnecessary. As such, she determined that a new trial should not be ordered since the evidence which was excluded was not essential to the Crown's case, concluding as follows at p. 292:

... there was other evidence available respecting the quantity of alcohol consumed by the respondent on the day of the accident and the observations of police officers and others of his demeanour immediately after the accident. While I cannot say what verdict would have been reached had this evidence gone to the jury, I am satisfied there was sufficient evidence, other than that excluded by the trial judge's ruling, to put the matter to the jury. Certainly, the [appellant] could not maintain it was futile to continue. I conclude it would indeed be oppressive to proceed with what might have been an unnecessary appeal and this behaviour by the [appellant] is sufficient in itself to give rise to abuse of process. For that reason, though I agree the trial judge erred in excluding the breathalyzer evidence, I would deny the appeal.

Goodridge C.J. dissenting

Goodridge C.J. also concluded that the Charter rights of the respondent had not been violated, so that the trial judge erred in excluding the breathalyzer evidence. As such, he determined that the appeal should be allowed. Having reached this conclusion, Goodridge C.J. moved on to consider whether, pursuant to s. 686(4), a new trial should be ordered.

Goodridge C.J. stated that this was not an interlocutory appeal but an appeal from an acquittal. He emphasized at p. 305 that, under s. 686(4), on an appeal from an acquittal, "the Court of Appeal must either dismiss the appeal or allow the appeal and set aside the verdict, and, if it allows the appeal and sets aside the verdict, it must either order a new trial or, unless the verdict appealed from is that of a jury, enter the verdict which should have been entered at trial".

Goodridge C.J. added at p. 306 that the only basis on which a new trial could be denied was "if the ordering of a new trial would be an abuse of process". Referring to the decision of the Supreme Court of Canada in R. v. Keyowski, 1988 74 (SCC), [1988] 1 S.C.R. 657, and to Banas, supra, Goodridge C.J. concluded at pp. 306-7 that:

I doubt that it is proper for a court of appeal...to make a decision that a new trial would be an abuse of process. A court of appeal should order a new trial where the appeal from acquittal is successful.... It is at the trial level that the question of abuse of process should be first decided. A court of appeal should not pass judgment in the first instance on a legal question when there may be facts relating to that question that have not been determined....

The only prejudice to the respondent lies in the fact that if the first trial had proceeded and resulted in a guilty verdict, his fate would have been determined at that time. Such a verdict, if there is to be one, is now delayed. The delay arises from the fact that the respondent raised a point of law in respect of which he was ultimately unsuccessful.... The ruling of the trial judge required [appellant] counsel to make a discretionary decision as to whether he should proceed. The respondent should not be heard to complain unless the decision made by [appellant] counsel was so clearly wrong as to render what would amount to a delayed guilty verdict an abuse of process and...that position is one that should be taken at trial and not on appeal.

Issue

Does s. 686(4) of the Criminal Code include a residual discretion for a court of appeal to refuse to order a new trial in a case where there was an error at trial which could reasonably have affected the verdict?

Statutory Provision

Criminal Code, R.S.C., 1985, c. C-46, s. 686(4):

686. . . .

(4) Where an appeal is from an acquittal, the court of appeal may

(a) dismiss the appeal; or

(b) allow the appeal, set aside the verdict and

(i) order a new trial, or

(ii) except where the verdict is that of a court composed of a judge and jury, enter a verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law, and pass a sentence that is warranted in law, or remit the matter to the trial court and direct the trial court to impose a sentence that is warranted in law.

Powers of the Court of Appeal

The powers of the Court of Appeal in indictable offences are set out in s. 686 of the Criminal Code. In an appeal by the accused in respect of an error of law at trial, a court of appeal has a discretion to dismiss the appeal if the error did not occasion a substantial miscarriage of justice. This discretionary power is circumscribed by a specific definition in s. 686(1)(b)(iii) of the Code. Section 686(4) deals with appeals by the Crown from acquittal. Although this subsection does not specify the grounds upon which such an appeal may be taken, s. 676(1)(a) provides that an appeal lies from an acquittal on any ground that involves a question of law alone. The combined effect of these two provisions is that in an appeal by the Crown from an acquittal based on an error of law, the Court of Appeal "may" allow the appeal. This confers a discretion on the court but in this case the discretion is not statutorily defined.

In Vézeau v. The Queen, 1976 7 (SCC), [1977] 2 S.C.R. 277, at p. 291, Martland J. discussed the legislative history of these provisions and pointed out that an earlier version of these provisions provided that the powers of a Court of Appeal in an appeal by the Crown were to be applied mutatis mutandis with the powers in respect of an appeal by the accused. In the latter case a curative provision in the terms of the present s. 686(1)(b)(iii) applied. See White v. The King, 1947 1 (SCC), [1947] S.C.R. 268. The amendment (S.C. 1953-54, c. 51) did not remove the discretion but left it undefined. Apparently, Parliament was content to leave it to the courts to define the circumstances in which the discretion was to be exercised. An appeal by the Crown from an acquittal, in contrast with an appeal by the accused from conviction, is a relatively unusual provision not common to all jurisdictions with systems similar to ours. It would, therefore, be appropriate for Parliament to accord more discretion to the courts as to the circumstances in which an error at trial should result in a new trial or conviction in an appeal by the Crown.

In Vézeau this Court decided that the exercise of the discretion to allow an appeal by the Crown grounded on an error of law included the power, which existed before the amendment, to refuse to allow an appeal if the error did not occasion a substantial miscarriage of justice. At page 291, Martland J. adopted the approach of the Ontario Court of Appeal in R. v. Paquette (1974), 1974 815 (ON CA), 19 C.C.C. (2d) 154, in the following paragraph:

[Section 686(4)] does not contain any provision equivalent to s. 613(1)(b)(iii). The powers of the court under this subsection were considered by the Court of Appeal for Ontario in R. v. Paquette, at p. 162. After quoting subs. (4), the Court goes on to say:

It is to be observed that the term "no substantial wrong or miscarriage of justice" is not incorporated in this subsection as it is in the situation of an appeal by an accused. However, in this case we think it appropriate to analogize the test, and we would hold that the Crown has satisfied us that it cannot be said that but for the misdirection the verdict of the jury would necessarily have been the same. [Emphasis added.]

Consequently, notwithstanding an error of law, the Crown now has the obligation of satisfying the Court of Appeal that the verdict would not necessarily have been the same absent the error. See Vézeau, at p. 292, and R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345.

The Court of Appeal has, apart from the discretion defined in Vézeau, the power to correct an abuse of process. Indeed, that is the power which appears to have been the basis for the exercise of discretion by the majority of the Court of Appeal in this case. While the more usual exercise of this power occurs in review of the decision of the trial judge with respect to an abuse of process that occurred at trial, exceptionally it may be exercised by the Court of Appeal in first instance where the abuse occurs during the appeal proceedings. See R. v. Potvin, 1993 113 (SCC), [1993] 2 S.C.R. 880, at pp. 915-16. In view of the conclusion that I have reached it is unnecessary for me to consider whether the conduct of the Crown in this case amounted to an abuse of process.

In the argument before this Court a question was raised as to whether the Crown could satisfy the Vézeau test in the circumstances. If an acquittal would necessarily have resulted had the breathalyzer evidence been admitted, the Crown would fail to discharge its burden under that test. The conclusion in this regard would depend to a great extent on whether the Crown, in seeking to establish what would have occurred absent the error, could resort to the evidence it could but did not call. The argument against such use is that the Crown should not be allowed to rely on untested evidence, which it chose not to call, in order to secure a new trial. The response of the appellant Crown to this submission was that in a Crown appeal from a directed verdict of acquittal by reason of no evidence, the Vézeau test is not appropriate. Reference was made to R. v. Collins (1993), 1993 8632 (ON CA), 79 C.C.C. 204 (Ont. C.A.), wherein Arbour J.A. concluded that in a jury case an appeal from a directed verdict of acquittal should generally be allowed if the trial judge erred in withdrawing the case from the jury on the basis of no evidence. Her reasons illustrate the difficulty in applying the Vézeau test in these circumstances. Not only must the court speculate as to what would have occurred if the case had not been withdrawn from the jury, but the Crown is effectively deprived of a jury trial in the event that the Court of Appeal concludes that an acquittal was inevitable.

Without expressing an opinion on the correctness of the opinion, that in a Collins-type of situation, the Court of Appeal should focus on the error of the trial judge rather than its possible effect on the ultimate verdict, it seems that there is a distinction between a case in which the Crown calls all of its evidence, and a case such as this in which the Crown deliberately chooses to bring about a directed verdict by not calling available evidence. In the latter case it can be argued that it is wrong to focus on the error of the trial judge which triggered the decision of the Crown because the directed verdict was not the result of an error of the trial judge but of the decision to withhold evidence. While these are issues that will no doubt have to be resolved in a proper case, I do not propose to attempt to do so here. Not only is it unnecessary to do so in order to resolve this case, but the issue also was apparently not raised in the Court of Appeal and was not dealt with in the reasons of either the majority or minority.

The decision of this Court in Vézeau in providing a test for the exercise of the discretion conferred by s. 686(4) did not purport to exhaust the definition of that discretion so as to preclude the Court, in appropriate circumstances, from adding to or qualifying the application of that test. To conclude that new provisions limited the exercise of discretion to reinstatement of the test which obtained prior to the amendment would render the amendment meaningless. In my opinion, there is support in our jurisprudence for a limited discretion on the part of the Court of Appeal to decline to allow an appeal in some circumstances in which the Crown unreasonably shuts down its case with the result that a verdict of acquittal is directed. The justification for such a discretion is indicated in several appellate court decisions.

In Banas, supra, the Ontario Court of Appeal, per Martin J.A., concluded that tape recordings of private communications which had been excluded at trial ought to have been admitted and agreed that the recordings were at the heart of the Crown's case. In allowing the Crown appeal from the directed verdict of acquittal and ordering a new trial, Martin J.A. concluded as follows, at p. 230:

We do not think that the Crown, in the circumstances, is precluded from appealing the directed verdict because Crown counsel decided not to continue with the trial which he considered would be fruitless and which would not result in a conviction due to the erroneous exclusion of vital evidence. We are satisfied that if the trial Judge had not excluded the evidence of the intercepted private communications the verdict of the jury would not necessarily have been the same. However we wish to point out that if in a particular case we considered that Crown counsel had unreasonably declined to present substantial evidence in his possession which would support a conviction merely in order to appeal an adverse ruling on the admissibility of evidence, we would not hesitate to hold that the Crown in those circumstances was precluded from appealing an acquittal. We are, however, satisfied that this it not what occurred here. [Emphasis added.]

Similarly, in Voykin, supra, in determining that business records had been wrongfully excluded by the trial judge, resulting in the acquittal of the accused, Hetherington J.A. for the Alberta Court of Appeal stated, at p. 281:

We agree with the statements of Mr. Justice Martin in [Banas, supra] ... to the effect that a Court of Appeal should not countenance an appeal by the Crown of an adverse ruling as to the admissibility of evidence if a conviction could have been obtained without the evidence which was excluded. We do not accept the contention of counsel for [the accused] ... that this issue is one for the trial judge. It is for a Court of Appeal to decide whether the Crown has launched an unnecessary appeal. [Emphasis added.]

Furthermore, in Bailey, supra, the Ontario Court of Appeal determined that a trial judge had wrongfully refused to allow a Crown witness to testify on the basis of spousal incompetence, which resulted in the Crown's decision not to call further evidence and ultimately led to an acquittal. The court, however, per Morden J.A., relying on the words of Martin J.A. in Banas, supra, concluded that the excluded evidence was not essential to the Crown's case and dismissed the appeal stating the following, at p. 25:

In these circumstances it cannot be said that it was the trial judge's error, alone, that might have affected the result. The result may also have been affected by Crown counsel's decision not to call any evidence. While I am prepared to assume that [the Crown witness'] evidence was important, to use a general term, there is no indication of what part it would have played in the Crown's case and no basis for concluding that it would have been fruitless for the Crown to have continued without it.

Finally, in R. v. Whittle (1992), 1992 12777 (ON CA), 78 C.C.C. (3d) 49, after the trial judge had excluded certain inculpatory statements made by the accused, the Crown offered no evidence and the trial judge directed a verdict of acquittal. On appeal, the exclusion of the evidence was held to be in error. Although there was some evidence which could have been led by the Crown and which might have been sufficient for a prima facie case, the court was satisfied that the test in Vézeau had been satisfied. Notwithstanding this conclusion, the court went on to consider the legal consequence of the failure of the Crown to adduce available evidence. Goodman J.A. for the court reasoned that the principle stated by Martin J.A. in Banas, supra, was a qualification of Vézeau. At pages 69-70, he states:

To that principle has been added the qualification that if the appellate court were of the opinion that Crown counsel had unreasonably declined to present substantial evidence in his possession which would support a conviction merely in order to appeal an adverse ruling on the admissibility of evidence, it would be precluded from appealing an acquittal. [Emphasis in original.]

He went on to conclude, at p. 70, that counsel had not acted unreasonably:

I have, however, no reason to doubt that Crown counsel sincerely believed that the evidence available to the prosecution, absent the statements ruled to be inadmissible, did not have sufficient probative force to constitute a prima facie case. I am of the further opinion, based on the submissions made to the court and the facts available on the record, that he did not decline to adduce further evidence merely in order to appeal the adverse ruling. [Emphasis added.]

These cases indicate that, apart from the capacity to stay for abuse of process, an appellate court is entitled to consider whether the Crown has acted unreasonably in refusing to call further evidence at trial because of an adverse evidentiary ruling and to refuse to order a new trial in such circumstances. As with abuse of process, this discretion must be exercised sparingly, taking into account a number of factors. The threshold requirement for invocation of this discretion is that, apart from the evidence excluded, the case of the Crown was sufficient to be put to the jury. As such, where the remaining evidence of the Crown meets the essential elements of the offence, but the Crown chooses not to call that evidence, then the threshold requirement for exercising appellate discretion to refuse to order a new trial is met. However, the final determination will depend upon a weighing of other factors, including, the relative strength of the evidence not called, the relative importance of the evidence excluded by the impugned ruling, the degree of prejudice which further proceedings present to the accused and the reasons for the decision of the Crown not to call further evidence.

As a general rule a decision to shut down the Crown's case simply to appeal an adverse ruling will be held to be unreasonable. On the other hand, where the evidence which has been excluded is relatively important and the remaining evidence, although perhaps sufficient to make out a prima facie case, is so weak that the prosecutor concludes that continuing with the trial is a waste of time, a decision to terminate the proceedings may be reasonable. If any special prejudice over and above prejudice that can be inferred from any prolongation of criminal proceedings is proved, it will be an important factor to be weighed by the Court of Appeal. The court should be mindful of the fact that exercising this power must be done sparingly in that it constitutes a review of prosecutorial discretion. The exercise of prosecutorial discretion in the bona fide interests of efficient justice and not merely for tactical advantage must be respected. It follows from the above that the explanation submitted by the Crown for its decision, particularly at trial, will play an important part in the review of that decision by the Court of Appeal.

Application to the Case at Bar

While close to the line, I would uphold the exercise of the discretion by the Newfoundland Court of Appeal to refuse to order a new trial in the present case. I would not, however, do so on the ground relied on by both Marshall and Cameron JJ.A. who concluded that the appeal should be dismissed because the appeal was unnecessary and thereby constituted an abuse of process. Rather, I have concluded that an appellate court also has a discretion, albeit a limited one, to refuse to allow an appeal from an acquittal in circumstances where the Crown, in an unreasonable exercise of prosecutorial discretion, decided not to call further evidence following an evidentiary ruling adverse to its position. I would apply that appellate court discretion to the facts of this case, according to the factors which were set out above.

The Other Evidence

In considering the other evidence which the appellant decided not to call, it is necessary to identify the elements of the offence in question and to consider whether the other evidence was sufficient to warrant putting the appellant's case to the jury. In reaching this determination, the test to be applied is whether the other evidence, "if believed by a properly charged jury acting reasonably, would justify a conviction": R. v. Monteleone, 1987 16 (SCC), [1987] 2 S.C.R. 154, at p. 161. In this case, three charges were laid against the respondent: two counts of impaired driving causing bodily harm contrary to s. 255(2) of the Criminal Code and one count of impaired driving causing death contrary to s. 255(3). In order to substantiate its case, the appellant would have to demonstrate that: (i) the respondent was operating the vehicle in question; (ii) the respondent's ability to drive was impaired by alcohol; and (iii) the impaired driving ability of the respondent caused the death and bodily harm which occurred.

With respect to the first element of the offences, the evidence from the preliminary hearing indicated that four individual witnesses could have identified the respondent as the person driving the vehicle in question. Jeffrey Porter, Gordon Aylward and Glen McGrath were all passengers in the vehicle and testified at the preliminary hearing that the respondent had been the person driving the vehicle at the time of the accident. Additionally, an eyewitness to the accident, William Keary, also identified the respondent as the driver of the vehicle. As such, there would appear to have been ample other evidence with respect to this element of the appellant's case.

With respect to the second aspect, it was not necessary to have breathalyzer evidence to prove that the respondent's ability to operate a motor vehicle was impaired by alcohol, nor to show that sobriety tests had been performed so long as observations of the respondent indicated that his behaviour represented a "marked departure from the norm": R. v. Smith (1992), 1992 ABCA 159, 73 C.C.C. (3d) 285 (Alta. C.A.), and R. v. Andres, 1979 2238 (SK CA), [1982] 2 W.W.R. 249 (Sask. C.A.). Even without the breathalyzer evidence, the Crown could have relied on the testimony of three witnesses who had been drinking with the respondent all afternoon and could identify the quantity of beer he had consumed and on the observations and opinions of two police officers as to the degree of intoxication of the respondent: Graat v. The Queen, 1982 33 (SCC), [1982] 2 S.C.R. 819. Jeffrey Porter, Gordon Aylward and Glen McGrath all testified at the preliminary hearing that the respondent had consumed approximately six or seven bottles of beer in the three or four hour period before the accident occurred. Although both Porter and Aylward, who testified that they had consumed a similar amount of alcohol during the same time period, stated their opinion that the respondent was "okay" to drive, both Constables Stanley and Tilley testified at the preliminary hearing that, in their opinion, the bloodshot eyes, strong odour of alcohol and slurred speech of the respondent indicated that he was intoxicated. In fact, Constable Tilley, who performed the breathalyzer stated that it was his opinion, based on his observations of the respondent, that the respondent was well over the legal blood-alcohol limit for driving a motor vehicle. Moreover, the Crown could have introduced the evidence of its expert, Elizabeth Dittmar, with respect to the effects on driving ability of the quantity of alcohol consumed by a person the size of the respondent since she was a qualified expert in the field: R. v. Dubois (1990), 1990 2776 (QC CA), 62 C.C.C. (3d) 90, and R. v. Kucher (1979), 1979 ALTASCAD 174, 48 C.C.C. (2d) 115. In my opinion, the body of other evidence with respect to this aspect of the offences was certainly not so deficient that withdrawal of the case from the jury would have been justified.

As to the third element of the offence, causation, it was incumbent upon the Crown to adduce sufficient evidence to demonstrate that the impairment of the respondent was "at least a contributing cause of death [and injury], outside the de minimis range": R. v. Pinske (1988), 1988 3118 (BC CA), 30 B.C.L.R. (2d) 114 (C.A.) at p. 123, aff'd, 1989 47 (SCC), [1989] 2 S.C.R. 979. Of necessity, the issue of causation requires consideration of competing theories as to the explanation for occurrence of the accident which resulted in injury and death. The case at bar is no exception, since the evidence tendered at the preliminary inquiry disclosed alternative possibilities with respect to causation: impaired driving capacity, poor road conditions and mechanical disrepair. However, I would reiterate that, in order to found the basis for a conviction, it need not be demonstrated that impairment was the sole cause, since it may well be that, even though a combination of factors were involved, impairment was still more than a de minimis cause of the death and injury which occurred: Pinske, supra. The evidence pertaining to the quantity of alcohol consumed by the respondent, as well as the observations and opinions of the police officers involved in the investigation, present a substantial body of evidence relating to impairment, which might have been augmented by the expert witness. The other evidence relating to the impact of poor road conditions must also be factored into the causation equation. Jeffrey Porter, one of the passengers in the vehicle allegedly driven by the respondent, testified at the preliminary hearing that, prior to impact, the rear of the vehicle began to slide and the eyewitness, William Keary, indicated that the vehicle slid around the corner before impact and that the road conditions were "damp". Moreover, Randolph Chafe, the mechanic who inspected the vehicle allegedly driven by the respondent after the accident gave evidence at the preliminary inquiry that the left rear tire of the vehicle was bald and the left brake lining worn off completely. While these circumstances tend to weaken the Crown's case, their weight was for the jury to assess. There was ample evidence to go to the jury.

Relative Importance of the Excluded Evidence

The breathalyzer evidence which was excluded by the impugned ruling would, if accepted, have tended to show that the respondent had consumed more alcohol than the other evidence relating to consumption might have indicated. At the preliminary inquiry, the expert was able to state conclusively, on the basis of the breathalyzer readings of 170 mg of alcohol in 100 ml of blood, that the blood alcohol level of the respondent at the time of the accident would have been 180 to 210 mg of alcohol per 100 ml of blood. Further, she indicated that an individual's ability to safely operate a motor vehicle is definitely impaired when the blood alcohol concentration reaches or exceeds 100 mg of alcohol in 100 ml of blood. When cross-examined at the preliminary hearing and asked to assess the blood alcohol level of the respondent based upon his weight, the amount consumed and the period over which it was consumed, according to the version of the evidence most favourable to the respondent, the expert could offer only a range of concentrations between 35 and 120 mg of alcohol per 100 ml of blood. Nevertheless, the fact that the breathalyzer could have provided stronger evidence of impairment did not render it crucial to the appellant's case, in wake of substantial other evidence of alcohol consumption and observations and opinions of impairment.

It was argued by the appellant that the evidence of causative factors other than impairment rendered the breathalyzer evidence even more essential to its case. I am unable to accept that submission on the basis that it does not necessarily follow that technical evidence of a higher blood alcohol level would undercut the significance of other factors relating to causation in this case. Moreover, impairment need not be the only cause of death and injury, but a contributing factor, beyond the de minimis level: Pinske, supra. Substantial other evidence of impairment was available to the appellant in this case, evidence similar in nature to that which would have been used to support such a case prior to development of the breathalyzer test. In my view, the additional evidence of impairment lent to the case by the breathalyzer would not have had a significant effect on the role played by road conditions and mechanical disrepair, nor was it essential to establishing the impairment of the respondent.

Degree of Prejudice

As Marshall J.A. noted, no specific evidence of prejudice to the respondent was tendered. It is possible, however, to infer from the two-year period in which the appeal of the original verdict of acquittal has been in the legal system that the respondent has probably suffered a certain degree of prejudice: R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771. In the circumstances, having regard to the strength of the other factors, prejudice is not an important factor in this case.

Explanation by the Crown

No explanation was offered by the Crown at trial. Immediately following the ruling, counsel for the Crown asked and was granted a brief adjournment. When he returned, the following occurred:

By the Court: Proceed.

JURY POLLED - ALL PRESENT

By the Court: Mr. Steeves.

Mr. Steeves: My Lord, the crown will elect not to call any further evidence based on some of your earlier remarks.

The appellant's factum does not purport to address the reason why the decision was made although the evidence which I have reviewed is put forward, ex post facto, as justifying the decision.

Conclusion

Assessing all of the factors, I have concluded that the available evidence which the appellant chose not to call was more than sufficient to meet the threshold test. The relative importance of the excluded evidence was not such that to proceed with the trial would have been a lengthy and futile exercise and a waste of resources. Indeed, taking into account the absence of an explanation by the Crown, I am convinced that the decision was largely a tactical one to reverse the trial judge's ruling so as to enable the Crown to proceed with its best case.

I would dismiss the appeal.

Appeal allowed, Sopinka, Cory and Major JJ. dissenting.

Solicitor for the appellant: The Department of Justice, St. John's.

Solicitors for the respondent: Noonan, Oakley, Orr, St. John's.