COURT FILE NO.: 10-30345

DATE: 2012/08/21

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN,

THE ATTORNEY GENERAL OF CANADA, and the DEPUTY ATTORNEY GENERAL OF CANADA

Respondents

– and –

KHURRAM SYED SHER

Applicant

Croft Michaelson and Jason J. Wakely, for the Respondents

Michael D. Edelson and Giuseppe Cipriano, for the Applicant

HEARD: August 15, 2012

REASONS FOR JUDGMENT

Mr. Justice Rutherford

[1] The applicant, Khurram Syed Sher, seeks an order in the nature of certiorari, quashing a direct indictment preferred and filed against him in this Court. The indictment contains one count alleging he conspired with two others to facilitate a terrorist activity contrary to s. 83.19 of the Criminal Code, R.S.C. 1985, c. C-46, as amended. The indictment bears the written consent to its preferment of Brian Saunders, the Director of Public Prosecutions (“DPP”), pursuant to s. 577 of the Code. The Office of the Director of Public Prosecutions was established in the Director of Public Prosecutions Act, S.C. 2006, c. 9, enacted as Part 3 of the Federal Accountability Act. By virtue of s. 3(4) of the Director of Public Prosecutions Act, the DPP is the Deputy Attorney General of Canada for the purpose of initiating and conducting criminal prosecutions on behalf of the Attorney General of Canada.

[2] The applicant was originally arrested and charged with the offence by way of information on August 24, 2010. Two others, Misbahuddin Ahmed and Hiva Alizadeh, were jointly charged as co-conspirators with him. Additional terrorism charges against them, but not Mr. Sher, were contained in the same information. The offences charged are all indictable offences.

[3] Mr. Sher elected to be tried by the Ontario Court of Justice (hereafter referred to as the provincial court) while the co-accused, Mr. Alizadeh and Mr. Ahmed, elected to be tried in the Superior Court of Justice, with Ahmed electing to be tried by a court composed of a judge and jury. The latter two requested a preliminary hearing. The effect of these elections meant that, pursuant to s. 536(4.2), all three accused would have the right to request a preliminary inquiry and if committed for trial, would be tried in the Superior Court of Justice.

[4] In March 2012, with the proceedings still in the provincial court pending the preliminary hearing, Mr. Sher brought an application in this Court seeking an order severing him from his co-accused for the purpose of reverting to his preferred mode of trial in the provincial court. McKinnon J. issued an order with reasons on March 21, 2012, severing Mr. Sher from his co-accused in the proceedings in the provincial court. What jurisdiction this Court had to sever an accused at that stage of proceedings in the provincial court when there was no indictment or committal for trial in this Court is neither addressed in McKinnon J.’s reasons nor does it appear to have been questioned by the prosecutors.

[5] On May 11, 2012, the DPP consented to the preferring of two indictments in this Court, one against Mr. Sher and the other against Mr. Alizadeh and Mr. Amed, alleging the same offenses as were initially brought by information. This effectively maintained the severance of Mr. Sher from his co-accused. The proceedings on information against all three accused in the provincial court were then stayed, by direction of the prosecutors. Mr. Sher now seeks to quash his direct indictment contending that s. 577 of the Code is not applicable to an accused that has elected trial in the provincial court and further, that the effect of the indictment would violate his rights under s. 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter].

[6] Drawing on the applicant’s Factum, I would characterize the applicant’s two-pronged attack in the following manner:

1. The applicant submits that a direct indictment, pursuant to s. 577, can only be sought in circumstances where an accused is entitled to request a preliminary inquiry. Since the applicant was not entitled to request a preliminary inquiry, the Attorney General could not prefer a direct indictment against him. Moreover, given that the applicant had always wanted to proceed directly to trial, the very policy reasons for directing an indictment are absolutely nonexistent in this case.

2. The applicant further submits that the action of the Attorney General in preferring a direct indictment has contravened s. 7 of the Charter, as the power to prefer a direct indictment was never intended by Parliament to override the election of an accused person. The actions of the Attorney General are, absent an explanation to the contrary, a collateral attack on the severance order and an arbitrary override of the applicant’s election. Given the efforts of the applicant to preserve his election, there ought to be heavy onus on the Attorney General to explain why the prosecution should proceed in the superior court rather than in the provincial court.

[7] In the ordinary course of criminal proceedings commenced by information in the provincial court, the prosecution is empowered by s. 574 of the Code to prefer an indictment on any charge on which an accused has been ordered to stand trial and on any additional charge founded on the facts disclosed by the evidence taken in the preliminary inquiry. The power to prefer a direct indictment exercised in this case is set out in s. 577 of the Code. I have italicized the words “even if” for emphasis and will specifically refer to them in due course. Section 577 provides as follows:

Direct indictments

577. Despite section 574, an indictment may be preferred even if the accused has not been given the opportunity to request a preliminary inquiry, a preliminary inquiry has been commenced but not concluded or a preliminary inquiry has been held and the accused has been discharged, if

(a) in the case of a prosecution conducted by the Attorney General or one in which the Attorney General intervenes, the personal consent in writing of the Attorney General or Deputy Attorney General is filed in court; ...

The Statutory Interpretation Issue

[8] The first prong of the applicant’s attack on the direct indictment is that an accused that elects trial of an indictable offence in the provincial court is not entitled to a preliminary inquiry. According to the applicant, “[t]he AG can exercise his discretion under section 577 only against those accused who are entitled to request a preliminary inquiry” (Applicant’s Factum, at para. 16 on p. 4).

[9] In support of this interpretation, the applicant asserts that the main purpose of the power to directly indict is to circumvent the need to hold or complete a preliminary hearing or to bring an accused to trial, notwithstanding that he has been discharged following a preliminary inquiry. He argues that the power in s. 577 simply does not apply to an accused that has elected to be tried in the provincial court.

[10] The respondent argues, citing R. v. Ertel (1987), 1987 CanLII 183 (ON CA), 35 C.C.C. (3d) 398 (Ont. C.A.), that the authority in s. 577 is part of the large arsenal of discretionary powers that the chief law enforcement officers must possess in order to effectively discharge their high duties. In the respondent’s Factum, it is asserted that s. 577 is cast in permissive language that does not exhaustively specify the circumstances in which the Attorney General may directly indict. At paras. 2-3 of the respondent’s Factum, the respondent suggests that:

The applicant urges a narrow interpretation of s. 577, arguing that because he elected trial in provincial court, the Attorney General is precluded from directly indicting him. This same argument has been considered, and rejected, in three previous superior court decisions. The applicant’s interpretation is contrary to the wording of s. 577, the purpose of the direct indictment power, its legislative history, and its practical application in the criminal justice system. His narrow interpretation should be rejected and his application should be dismissed.

[11] On this first prong of the applicant’s attack on the direct indictment, I agree with the position laid out by the respondent. The applicant’s statutory interpretation is erroneously narrow. To begin with, Mr. Sher was not given the opportunity to request a preliminary inquiry. Counsel for the applicant confirmed this fact in oral argument. The applicant’s Factum, at para. 16, outlines that Mr. Sher was “not given the opportunity to request a preliminary inquiry.” During oral argument, this statement was then converted by applicant’s counsel to, “an accused is entitled to request a preliminary inquiry.” In his oral reply argument, counsel for the applicant clarified the applicant’s position as being that it was only because of his election for trial in the provincial court that he was not entitled to request a preliminary inquiry. Moreover, counsel for the applicant argued that, but for his election for trial in provincial court, Mr. Sher would have been entitled to request a preliminary inquiry and, therefore, his is not a case in which s. 577 is applicable.

[12] In my view, it is not crucial whether Mr. Sher was or was not entitled to request a preliminary inquiry. Section 577 provides that an indictment may be preferred “even if the accused has not been given the opportunity to request a preliminary inquiry.” It is my view, as argued by the respondent, that s. 577 is a permissive casting rather than an exhaustive one. The section permits the preferring of a direct indictment even if those circumstances occur, not only if those circumstances occur. The three circumstances are illustrative of the Attorney General’s power, but not exhaustive of it. They set out, for greater certainty, some of the circumstances in which the Attorney General may directly indict, indicating the jurisdiction extends “even” to the extent where no opportunity to request a preliminary inquiry has been given to an accused person. Direct indictments have been preferred against persons before any other proceedings by way of prosecution have been initiated and at almost any stage through prosecution proceedings already underway before completion.

[13] While no Ontario example of a direct indictment against an accused that had elected trial in the provincial court was referred to, the respondent pointed to a number of such authorities in other provinces. He said of the decisions in R. v. Stanton, (unreported; New Westminster: May 5, 2006: docket X063590-2) (B.C.S.C.); R. v. Pal, 2007 BCSC 47 [Pal]; and R. v. Poloni, 2009 BCSC 629:

[They] all unequivocally state that the Attorney General has jurisdiction to directly indict an accused person who previously elected trial in provincial court. These cases are all precisely on point and squarely opposed to the applicant’s argument. Conversely, the applicant has not pointed to a single case that accepts his narrow interpretation of the Attorney General’s power. (Respondent’s Factum, at para. 19)

In R. v. Beaudry, 1966 CanLII 537 (BC CA), [1967] 1 C.C.C. 272 (BCCA), the accused was charged with an offence within the absolute jurisdiction of a magistrate. The Attorney General indicted him directly into the superior court and the Court of Appeal ruled that nothing precluded that. In R. v. Hallett, 1963 CanLII 746 (NS SC), [1964] 1 C.C.C. 201 (N.S.S.C.), the Attorney General preferred a direct indictment against the accused who had elected trial in magistrates court on Customs Act charges. On a challenge to the Attorney General’s action, MacDonald J. said at p. 203:

I remain unconvinced that it is rendered inapplicable simply because the accused has elected trial before a Magistrate or that a purported exercise of it in such a case is without efficacy except as a constructive invocation of s. 480…. So to hold would engraft a specific limitation upon s. 487 which would render the preferring of such a bill impossible in many situations where it may be very desirable to abandon previous proceedings and go directly to the Grand Jury stage.

[14] The respondent also referred to R. v. Charlie (1998), 1998 CanLII 4145 (BC CA), 126 C.C.C. (3d) 513, 109 B.C.A.C. 106 (B.C.C.A.) where Southin J.A., referring to s. 577, said at para. 31:

There are many reasons why an Attorney General or a Deputy Attorney General might consider a direct indictment in the interests of the proper administration of criminal justice. Witnesses may have been threatened or may be in precarious health; there may have been some delay in carrying a prosecution forward and, thus, a risk of running afoul of s. 11(b) of the Charter; a preliminary inquiry, in, for instance, cases essentially founded on wire-tap evidence, may be considered by the Attorney General to be expensive and time consuming for no purpose. These are simply illustrations. It is neither wise nor possible to circumscribe the power of the Attorney General under this section. [Underlining added]

[15] In R. v. Jones, 1996 CanLII 12421 (ON CA), [1997] 32 O.R. (3d) 365 (C.A.), at para. 14, Doherty J.A. described proceedings by way of direct indictment, preferred while a preliminary inquiry was underway, in the following manner:

In my opinion, proceedings by way of a direct indictment pursuant to s. 577 of the Criminal Code constitute new proceedings distinct from any which may have taken place previously in relation to the same charges. I reach that conclusion for three reasons. Firstly, proceedings taken pursuant to a s. 577 indictment have no procedural connection to any prior proceeding. Procedurally, anything that may have happened in proceedings commenced by information containing the same allegations as those found in the indictment have no significance to the proceedings taken on the direct indictment. For example, any election made by an accused as to his mode of trial becomes irrelevant the moment the Crown proceeds by way of direct indictment. Any right an accused has to re-elect based on his initial election also vanishes when the Attorney General proceeds by direct indictment.

[16] Both the Factums of the applicant and the respondent canvassed the history of the indictment power in Canadian criminal law. The Factums traced the indictment power’s history from its common law roots through the statutory evolution and development of the special power of the Attorney General to prefer direct indictments and the treatment and discussion of that power in the authorities. I will not recite it. Suffice it to say, while the Attorney General’s indictment power is a statutory one, I see nothing in that development and in Parliament’s treatment of it to support the proposition that, in the past 25 years, there has been any legislative intent to reduce or limit the circumstances in which the chief law enforcement officers can initiate criminal proceedings by way of prosecution. Nor do the authorities in the case law support a limitation of the circumstances in which a direct indictment may be preferred. See especially R. v. McKibbon, 1984 CanLII 67 (SCC), [1984] 1 S.C.R. 131; R. v. Tapaquon, 1993 CanLII 52 (SCC), [1993] 4 S.C.R. 535, per Sopinka J. at para. 20 et seq.; and R. v. Benji, 2002 SCC 5, [2002] 1 S.C.R. 142; all as reviewed by Joyce J. in Pal.

[17] The effect of the 2002 amendments to the Code was considered in R. v. Ahmad, [2008] O.J. No. 4277 (S.C.J.), where Dawson J. concluded, at para. 36, that:

Nothing in these amendments to the Criminal Code purports to restrict the discretionary power to prefer a direct indictment pursuant to s. 577. The same amending legislation also amended s. 577 by adding to that section an express provision authorizing the preferral of a direct indictment during the course of a preliminary inquiry. This may have been a clarifying amendment to bring s. 577 into line with cases such as R. v. Charlie (1998), 1998 CanLII 4145 (BC CA), 126 C.C.C. (3d) 513 (B.C.C.A.) which already permitted that. However, it certainly does not demonstrate a Parliamentary intent to restrict the availability of a direct indictment; quite the contrary is true.

The same conclusion was reached in R. v. S.J.L., 2009 SCC 14, [2009] 1 S.C.R. 426 [S.J.L.], where Deschamps J. said, at para. 24:

The reforms effected by Parliament in 2002 -- which made the preliminary inquiry optional, authorized agreements to limit the scope of the preliminary inquiry and authorized the holding of a pre-hearing conference, inter alia to promote a fair and expeditious inquiry -- also tend to reduce the number of preliminary inquiries and their length (S.C. 2002, c. 13, particularly ss. 25 and 27, which came into force on June l, 2004). These amendments show clearly that the trend is toward the adoption of mechanisms that are better adapted to the needs of the parties, not the imposition of more inflexible procedures. Furthermore, they do not affect the direct indictment. Whether a direct indictment should be preferred is at the Attorney General's discretion, and the courts will intervene in such a case only if there is an abuse of process. In the case at bar, one of the adults implicated in the same events as the respondents attempted unsuccessfully to quash the direct indictment and no argument on that subject is raised in this Court.

[18] There is nothing in the long history of the legislation that suggests Parliament intended to preclude the Attorney General from directly indicting an accused that elected trial in provincial court. Indeed, the narrow interpretation urged by the applicant could, in certain circumstances, seriously impede the exercise of prosecutorial discretion of the Attorney General. It could prevent the Attorney General from bringing multiple co-accused who may have been arrested at different times, into one trial or, as was done with the approval of the Court of Appeal in British Columbia, prevent the Attorney General from seeking, albeit too late, to save a seriously delayed provincial court trial by bringing it into the superior court. See R. v. Horner, 2012 BCCA 7, para. 50.

The Charter Issue

[19] The applicant contends that if, as I have ruled, s. 577 properly interpreted provides for his prosecution on a direct indictment in the superior court, such action, in the face of his attempt to preserve his wish to be tried by a provincial court judge, amounts to a breach of his s. 7 rights under the Charter. This section guarantees everyone “the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

[20] It must be noted that, according to s. 565(2) of the Code, the subject of a direct indictment will be tried by a court composed of a judge and jury, but has the right to elect to be tried by a judge alone. Can it be said that by compelling a person who wants to be tried by a provincial court judge to be tried in a superior court by his choice of a judge and jury or a judge alone constitutes a breach of his Charter rights under s. 7? Such an assertion is untenable.

[21] Counsel for the applicant referred to the possibility that if Mr. Sher elects to be tried by a judge without a jury, the DPP might exercise the authority given to an Attorney General in s. 568 of the Code to require the trial to be by judge and jury. That, however, is not the present situation in this case, and not for the purposes of this application. When counsel for the applicant raised that possibility, I noted gratuitously that I would have thought that if the DPP had in mind that the public interest required Mr. Sher’s charge to be tried by a judge and jury, a Requirement to that effect would have been coupled with the DPP’s consent to the direct indictment. I digressed further noting that the only authority in Ontario that I was aware of dealing with the constitutionality of s. 568 was R. v. Hanneson, 1987 CanLII 6829 (ON SC), [1987] 31 C.C.C. (3d) 560 (Ont. H.C.), in which O’Driscoll J. ruled, at para. 3 under “Conclusion,” that:

[S]ince the only charter or constitutional right an accused has regarding mode of trial is the one set out in s. 11(f) of the Charter, there could not possibly be a charter infraction under s. 7 and/or s. 15 in this case because the Attorney General for Ontario, by utilizing s. 498 of the Code, has directed that the accused will proceed to “an impartial trial by jury - the very thing that the Constitution guarantees him”.

That ruling was cited with apparent approval in R. v. Ng, 2003 ABCA 1, at para 115, where Wittmann J.A. wrote:

Historically, there has been another limitation on an accused's election rights which remains in effect to this day. Under s. 568 of the Code, the Attorney General retains the overriding right to compel a trial by judge and jury when the Attorney General sees fit, despite an accused's election to the contrary, unless the offence is one that is punishable by imprisonment for five years or less: R. v. Hanneson (1987) 1987 CanLII 6829 (ON SC), 31 C.C.C. (3d) 560 (Ont. H.C.J.); Re M and the Queen (1982) 1982 CanLII 3190 (ON SC), 1 C.C.C. (3d) 465 (Ont. H.C.), affirmed 143 D.L.R. (3d) 487, 39 O.R. (2d) 732 at 733 (C.A.). This right on the part of the Attorney General has been part of the Code since 1909...

[22] In regards to a positive constitutional right to a particular mode of trial, s. 11(f) of the Charter guarantees, “...the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment.” That provision was the focus of R. v. Turpin, 1989 CanLII 98 (SCC), [1989] 1 S.C.R. 1296. The Court held that such benefit of trial by jury should also have to be something an accused could waive, where it was not thought to be beneficial to his particular interests. Wilson J. wrote at para. 32:

Professor Peter Hogg also construes the word “benefit” in this way and concludes that the s. 11(f) right to the benefit of a jury trial encompasses the right to elect trial by a judge alone. He writes in Constitutional Law of Canada (2nd ed. 1985), at pp. 773-74:

Section 11(f) confers the right to "the benefit" of trial by jury. This is to make clear that an accused may elect against trial by jury. So long as any other mode of trial depends upon the choice of the accused (and not the Crown or the court), the accused may be said to have the benefit of trial by jury. Indeed, it may safely be assumed that any of the Charter rights which exist solely for the benefit of a person may be waived by that person.

I agree with the Alberta Court of Appeal that s. 11(f) does not make trial by jury obligatory. It merely confers a right to a jury trial on the accused. The accused may repudiate that right. He may say that he does not wish to exercise his constitutional right to a jury trial. However, s. 429 of the Criminal Code does make trial by jury mandatory for those offences listed in s. 427. Section 429 then can only be overridden if there is a constitutional right to have a trial by judge alone. With all due respect I cannot agree with the Alberta Court of Appeal and Professor Hogg that s. 11(f) can be read as conferring on the accused a choice or an election between trial by judge and jury and trial by judge alone. The purpose of s. 11(f) is to give an accused the right to a jury trial and to ensure that, if a jury trial is not a benefit to the accused, the accused may waive the right to a jury trial. Once the right is waived, however, reliance on the Constitution ceases and the provisions of the Criminal Code govern. There is, in my view, nothing in s. 11(f) to give the appellants a constitutional right to elect their mode of trial or a constitutional right to be tried by judge alone so as to make s. 11(f) inconsistent with the mandatory jury trial provisions of the Criminal Code.

As noted earlier, s. 565(2) of the Code now permits the subject of a direct indictment the option of a trial with or without a jury.

[23] Endeavoring to breathe s. 7 life into an accused’s mode of trial, counsel for the applicant referred to R. v Babcock, [1989] O.J. No. 13 (C.A.), where a provincial court trial had gone intermittently over a period of approximately two years. The judge decided the trial could be completed more expeditiously if it was turned into a preliminary hearing and sent the case for trial in the District Court. In a brief judgment, without reference to other authorities, Finlayson J.A. wrote:

I see nothing in the record which would justify the decision of the provincial court judge to treat this as a preliminary hearing. There was no evidence of an extraordinary nature which would have made him feel that more serious charges should be considered by the Crown. There was no request by either the Crown or the defence that it be converted. It would appear that the sole purpose of converting the trial to a preliminary inquiry was to transfer the case to District Court and thereby assist the provincial court judge in clearing his docket. I do not think this is a valid consideration.

In my opinion, under the provisions of the Code, the accused was entitled to elect to be tried by a provincial court judge and, unless there was a judicial reason for overruling this election under s. 485(1), he should have been entitled to proceed in that way. I can find no justification in this record for the learned trial judge to decide on his own motion to convert what was a trial before him into a preliminary hearing.

The problem that now arises is fashioning an appropriate remedy. Clearly, the decision by the provincial court judge is wrong and must be quashed. However, that disposition would have the effect of sending the matter back for a new trial and the complaint of the accused as to the timeliness of his trial would remain unresolved. In my view, having regard to the nature of the charge and the history of delay, this is a matter that contravenes s. 7 of the Canadian Charter of Rights and Freedoms. Section 7 certainly contemplates procedural irregularities and, in my view, the accused in this instance has been denied the right to a timely trial at his election under the Code. I think this matter has gone on too long and should come to an end. The appropriate remedy is a stay under s. 24(1) of the Charter.

I am unable to regard this practical disposition of a case gone well off the rails as authority for there being a constitutional right to a trial by a judge alone, let alone for a judge alone in the court of one’s choice.

[24] Counsel for the applicant also referred me to R. v. De Zen, 2010 ONSC 974, [2010] O.J. No. 601 (S.C.J.), in which the applicants and others jointly charged in a large and complex fraud prosecution elected trial in provincial court. Extensive pre-trial management proceedings, involving counsel on both sides, ensued and a trial date was set. The DPP then issued a Requirement under s. 568 for a jury trial. The applicants moved to quash the Requirement. At paras. 18-21, Brown J. described the situation as follows:

On August 24, 2009, defence counsel received correspondence from the Crown enclosing a copy of an Indictment endorsed August 17, 2009 by Brian Saunders, the Director of Public Prosecutions for Canada ("D.P.P."), acting in his capacity as the Deputy Attorney General for Canada. The Indictment charged the same two counts of fraud as had been contained in the Information dated June 10, 2008 and was endorsed as follows:

I hereby require the above-named accused to be tried by a court composed of a judge and jury pursuant to Section 568 of the Criminal Code.

Dated at Ottawa, Ontario the 17th day of August, 2009.

No prior notice was given by the Crown to Justice Kenkel or to the defence that such a Requirement was being contemplated. There is no indication in the correspondence of August 24, 2009 as to why s. 568 was being invoked.

Indeed, throughout all of the pre-trial correspondence and pre-trial discussions, and up to and including the time at which Justice Bourque was assigned as the trial judge, there was never any suggestion whatsoever from the Crown that the D.P.P. was considering a Requirement that the accused be tried by a court composed of a judge and jury pursuant to s. 568 of the Criminal Code. Nor was there any such suggestion from the Crown prior to the date that the correspondence from the Crown dated August 24, 2009, was received by the defence. On prior attendances in court, the Crown noted, inter alia, the progress that had been made.

On September 8, 2009 a further judicial pre-trial, and court appearance, occurred. At that time, defence counsel asked the Crown for an explanation as to why s. 568 had been invoked in this case to require a trial by a judge and jury. Crown counsel declined to provide any explanation for this action indicating that he had no instructions to do so and that traditionally an explanation is not given.

Brown J. canvassed the role of the courts in reviewing decisions of the Attorney General and the distinction between those falling within core elements of prosecutorial discretion and those more properly characterized as tactical prosecutorial decisions. Whereas the former are reviewable by a court, at best, upon a showing of some flagrant impropriety, the latter may draw corrective action from a court where a lack of fairness and objectivity require correction to protect the integrity of the criminal justice system. Brown J. characterized the issuance of the Requirement under s. 568 in the circumstances before him as relating to the prosecution tactics or conduct before the court and falling outside the definition of core prosecutorial discretion set out in Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372. Brown J. wrote, at para. 26:

The distinction drawn by the Supreme Court in Krieger between core prosecutorial discretion, on the one hand, and tactical Crown decisions, on the other, is of direct relevance to this case. The Crown's decision to require a jury trial does not, in my view, fall within the core elements of prosecutorial discretion. It is not, to use the Supreme Court's words and emphasis, in Krieger an "ultimate decision" about "whether a prosecution should be brought, continued or ceased, and what the prosecution ought to be for". In this sense, the decision to invoke s. 568 of the Criminal Code is completely distinguishable from a decision to prefer a direct indictment. The latter is manifestly a decision to lay a charge, and therefore has been accorded significant deference: R. v. Stucky, [2005] O.J. No. 5120 (S.C.J.), at paras. 44-45. [Emphasis in original.]

Brown J. found that the applicants had established on a balance of probabilities that the prosecution had violated the s. 7 rights of the applicants and the Requirement was an “abuse of process.” At paras. 40-41, Brown J. explained his conclusion stating:

In my view, the discretionary decision by the D.P.P. to compel the applicants, in the particular circumstances of this case, to be tried by a judge and jury in a fraud trial which will take several months, only after being advised that the trial judge has been selected, leads to an inference, particularly in the absence of explanation or notice, that the decision was based on partisan considerations.

I accept as a matter of law that as a general rule the Crown has no obligation to explain its discretionary decision in criminal cases. However, the failure of the Crown to explain its decision in this case, given the history of case management and the position of the parties when taken with all the other facts in this case, seriously undermines the perception of impartiality and fairness and tarnishes the reputation of the justice system.

[25] While I would not necessarily agree that an Attorney General’s Requirement that an accused be tried by a court composed of a judge and jury should be characterized as falling outside of the core components of prosecutorial discretion, in the circumstances of the case he had before him, it is not difficult to understand why Brown J. felt that the s. 7 rights of the applicants were engaged and that the Court should review the Requirement on the more relaxed grounds of fairness and objectivity; applicable outside the core areas of prosecutorial discretion. None of that, however, advances the applicant’s attack on the direct indictment in this case. As Brown J. said at para. 26, set out above,

...the decision to invoke s. 568 of the Criminal Code is completely distinguishable from a decision to prefer a direct indictment. The latter is manifestly a decision to lay a charge, and therefore has been accorded significant deference: R. v. Stucky, [2005] O.J. No. 5120 (S.C.J.), at paras. 44-45.

[26] Counsel for the applicant went on to argue that it was incumbent on the DPP to give reasons for his decision to elevate the trial to the superior court by direct indictment. He noted that, from time to time, prosecutors do make public statements in court explaining why, for instance, a prosecution is to be stayed. I do not disagree with the desirability of openness and transparency in matters involving the decisions of law officers of the Crown, to the extent that such is practicable. There may be different interests at play, however, between a public explanation of why a case is not to be prosecuted and why a case is to go forward and in any particular mode. In the latter, what motivates the prosecution may well tend to incriminate or at least aggravate the position of the accused before trial and the facts will normally become public in the course of the trial. In the case of the termination of a prosecution, the factors involved may never otherwise come to the wondering public mind.

[27] In any event, the authorities seem clear: when it comes to decisions within the bounds of prosecutorial discretion, including preferring a direct indictment, there is no obligation on the prosecution to give reasons. Moreover, the courts should defer to the discretion of the Attorney General, absent a showing of abuse of process or other flagrant impropriety (S.J.L., at para. 24).

[28] As L’Heureaux-Dubé J. explained in R. v. Power, 1994 CanLII 126 (SCC), [1994] 1 S.C.R. 601, at paras. 38-40:

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).

[29] In this application, there has neither been an allegation of abuse of process nor of improper conduct on the part of the prosecution. There is no basis upon which the Court should consider inquiring into the preferring of the direct indictment. Nor is the absence of or even refusal to give reasons for the direct indictment give any basis on which to draw any adverse inference. See R. v. Ng, at para 68; and R. v. D.N. (2004), 2004 NLCA 44, 188 C.C.C. (3d) 89 (Nfld. C.A.) at para. 33.

[30] Counsel for the applicant suggested that it was difficult to understand what possible reason there might be for moving the trial from the provincial court to the superior court, particularly in Ottawa where there are sound judicial resources at both levels of court. Be that as it may, there are a host of considerations that could come into play in a decision by an Attorney General or Deputy Attorney General to initiate proceedings or new proceedings by way of direct indictment. The respondent’s Factum canvasses a number of them in Part 6, beginning at page 25. In a terrorism prosecution where the alleged co-participants are heading for trial in the superior court in any event, there may well be other valid considerations.

Conclusion and Disposition

[31] For the reasons set out above, it is my conclusion that the authority in s. 577 of the Code is applicable to an accused that has been charged by way of information and has indicated his wish to elect to be tried in the provincial court. Such person may properly be indicted directly to stand trial in the superior court for the same offence and the proceedings in the provincial court stayed prior or subsequent to the preferring of the direct indictment.

[32] There is no self-standing right under the Charter guaranteeing a criminal trial by a court composed of a judge alone, let alone such right to a choice between a trial in the provincial or superior courts. The options and choices in that regard are a matter of criminal procedure, pursuant to the provisions of the Code.

[33] This application on certiorari to quash the decision of the DPP is dismissed. The applicant’s case has already been adjourned to Friday, September 7, 2012, before Ratushny J. as case management judge.

Order Accordingly.

Rutherford J.

Released: August 21, 2012