COURT FILE NO.: SC M48/11

DATE: 20120213

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MED AHMADOUN

Applicant

– and –

ATTORNEY GENERAL FOR ONTARIO

Respondent

Med Ahmadoun, the Applicant representing himself

Brad Demone, for the Respondent

HEARD: January 31, 2012

m.a. code j.

reasons for judgment

A. INTRODUCTION

[1] This is an originating Application, in the nature of certiorari, seeking to quash a decision made by Crown counsel in the course of criminal proceedings. The Applicant Med Ahmadoun (hereinafter, Ahmadoun) had been prosecuted for various offences, in particular, criminal harassment. At the end of his trial in the Ontario Court of Justice, on November 10, 2010, he was acquitted by Greene J. The main Crown witness in the proceedings, who alleged that Ahmadoun had harassed her, was one Laila Tibari (hereinafter, Tibari).

[2] Ahmadoun responded to his acquittal by swearing an Information alleging that Tibari had committed various criminal offences against him, in particular, perjury at the proceedings before Greene J. The Crown was given notice of the pre-enquête before Justice of the Peace McNish, pursuant to s. 507.1 of the Criminal Code, and a hearing was held on March 4, 2011 to determine whether process should issue. Ahmadoun was represented by counsel at the hearing and successfully persuaded the Justice of the Peace to issue process. The Crown had submitted, unsuccessfully, that there was insufficient evidence to justify issuing process.

[3] At this point, with process having issued, the Crown entered a stay of proceedings pursuant to s. 579 of the Criminal Code. The Crown stated, on the record, that there was “no reasonable prospect of conviction” and that “it would not be in the public interest to prosecute.”

[4] It can be seen that the Crown applied both aspects of the modern charge screening standard that emerged in this province from The Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure and Resolution Discussions, Queen’s Printer for Ontario 1993, at pp. 113-120 (hereinafter “The Martin Committee Report”). It is this decision by the Crown that the Applicant seeks to quash. He alleges that the Crown acted with a “flagrant impropriety” and committed an “abuse of process” when entering the stay.

[5] In Ahmadoun’s submission, this narrow “abuse of process” basis for attacking a “core” exercise of Crown discretion is what allows him to seek judicial review of the Crown’s decision. See: Krieger v. Law Society of Alberta (2002), 2002 SCC 65, 168 C.C.C. (3d) 97 (S.C.C.); R. v. Nixon (2011), 2011 SCC 34, 271 C.C.C. (3d) 36 (S.C.C.); Campbell v. Ontario (Attorney General) (1987), 1987 CanLII 4268 (ON SC), 31 C.C.C. (3d) 289 (Ont. H.C.J.), affirmed 1987 CanLII 4333 (ON CA), 35 C.C.C. (3d) 480 (Ont. C.A.).

[6] I have grave doubts whether Ahmadoun has standing to seek to quash the Crown’s decision entering a stay in criminal proceedings against Tibari. Once process issued and the Crown intervened in the private prosecution, pursuant to s. 11(d) of the Crown Attorneys Act, R.S.O. 1990 Ch. C-49, as amended, the only parties to the criminal proceedings were the Crown and Tibari. The Applicant Ahmadoun was no longer a “prosecutor” in the proceedings, as defined in s. 2 and s. 785 of the Criminal Code. He was now a “victim” or witness and was not a party to the proceedings. Tibari was a party and she has not been joined in these proceedings. A further difficulty is that the meaning of “abuse of process” in criminal law refers to an extraordinary judicial power to stay proceedings in order to protect the accused from serious misconduct by the executive branch of government. The root case in Canada remains R. v. Young (1984), 1984 CanLII 2145 (ON CA), 13 C.C.C. (3d) 1 at 31 (Ont. C.A.) where Dubin J. A., as he then was (Howland C. J. O. and Martin J. A. concurring) stated:

I am satisfied on the basis of the authorities that I have set forth above that there is a residual discretion in a trial court judge to stay proceedings 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 and to prevent the abuse of a court’s process through oppressive or vexatious proceedings. It is a power, however, of special application which can only be exercised in the clearest of cases. [Emphasis added].

[7] The Supreme Court of Canada unanimously adopted this narrow formulation of the “abuse of process” power in R. v. Jewitt (1985), 1985 CanLII 47 (SCC), 21 C.C.C. (3d) 7 at 13-14 (S.C.C.). Dickson J., as he then was, gave the judgement of the court and described the power as:

…a judicial discretion to enter a stay of proceedings to control prosecutorial behaviour prejudicial to accused persons… [Emphasis added].

[8] Not only is the Applicant Ahmadoun no longer a party to the proceedings between the Crown and Tibari but he seeks to turn the “abuse of process” doctrine on its head. Instead of using it to stay abusive proceedings against the accused, he is trying to revive proceedings that the Crown has already stayed. He seeks to do all this without joining the accused Tibari as a party. None of these issues, relating to the Applicant’s apparent lack of standing and the apparent inapplicability of “abuse of process” as a tool to revive proceedings, was raised before me. Instead, the Crown addressed the Applicant Ahmadoun’s submissions on their merits and simply argued that there was no evidence to support the claim of “flagrant misconduct”. Accordingly, I will proceed on the same basis. Indeed, this may well be the best course to take. Otherwise, the Applicant might simply re-frame his Application as a civil action or application seeking declaratory relief, in which case the same issues would be re-litigated but in a different form. See, for example: Campbell v. Ontario (Attorney General), supra; Bedford et al v. Canada (Attorney General) et al (2010), 2010 ONSC 4264, 262 C.C.C. (3d) 129 at 164-9 (Ont. S.C.J.).

B. The Crown stay power is a “core” exercise of discretion that is generally immune from judicial review.

[9] The parties agree that the Crown’s decision to enter a stay of proceedings in this case is one of those so-called “core” prosecutorial powers that are generally immune from judicial review. Iacobucci and Major J.J. gave the unanimous judgement of the full court in Krieger, supra at para. 32, and described the Attorney-General’s independence from the courts, when making prosecutorial decisions, as a constitutional principle:

The court’s acknowledgment of the Attorney General’s independence from judicial review in the sphere of prosecutorial discretion has its strongest source in the fundamental principle of the rule of law under our Constitution. Subject to the abuse of process doctrine, supervising one litigant’s decision-making process -rather than the conduct of litigants before the court - is beyond the legitimate reach of the court. In Re Hoem and Law Society of British Columbia (1985), 1985 CanLII 447 (BC CA), 20 C.C.C. (3d) 239 (B.C.C.A.), Esson J.A. for the court observed, at p. 254, that:

The independence of the Attorney-General, in deciding fairly who should be prosecuted, is also a hallmark of a free society. Just as the independence of the bar within its proper sphere must be respected, so must the independence of the Attorney-General.

We agree with these comments. The quasi-judicial function of the Attorney General cannot be subjected to interference from parties who are not as competent to consider the various factors involved in making a decision to prosecute. To subject such decisions to political interference, or to judicial supervision, could erode the integrity of our system of prosecution. Clearly drawn constitutional lines are necessary in areas subject to such grave potential conflict. [Emphasis added].

[10] However, the Court in Krieger went on to define the scope of this independence from judicial review fairly narrowly by placing two important limits on it. First, Iacobucci and Major J. J. held, supra at paras 42-3 and 46-7, that the independence principle applied only to a narrow “core” of decisions relating to “whether” to prosecute and “what” to prosecute:

In making independent decisions on prosecutions, the Attorney General and his agents exercise what is known as prosecutorial discretion. This discretion is generally exercised directly by agents, the Crown attorneys, as it is uncommon for a single prosecution to attract the Attorney General’s personal attention.

“Prosecutorial discretion” is a term of art. It does not simply refer to any discretionary decision made by a Crown prosecutor. Prosecutorial discretion refers to the use of those powers that constitute the core of the Attorney General’s office and which are protected from the influence of improper political and other vitiating factors by the principle of independence.

Without being exhaustive, we believe the core elements of prosecutorial discretion encompass the following: (a) the discretion whether to bring the prosecution of a charge laid by police; (b) the discretion to enter a stay of proceedings in either a private or public prosecution, as codified in the Criminal Code, R.S.C. 1985, c. C-46, ss. 579 and 579.1; (c) the discretion to accept a guilty plea to a lesser charge; (d) the discretion to withdraw from criminal proceedings altogether: R. v. Osborne (1975), 1975 CanLII 1357 (NB CA), 25 C.C.C. (2d) 405 (N.B.C.A.); and (e) the discretion to take control of a private prosecution: R. v. Osiowy (1989), 1989 CanLII 4780 (SK CA), 50 C.C.C. (3d) 189 (Sask. C.A.). While there are other discretionary decisions, these are the core of the delegated sovereign authority peculiar to the office of the Attorney General.

Significantly, what is common to the various elements of prosecutorial discretion is that they involve the ultimate decisions as to whether a prosecution should be brought, continued or ceased, and what the prosecution ought to be for. Put differently, prosecutorial discretion refers to decisions regarding the nature and extent of the prosecution and the Attorney General’s participation in it. Decisions that do not go to the nature and extent of the prosecution, i.e., the decisions that govern a Crown prosecutor’s tactics or conduct before the court, do not fall within the scope of prosecutorial discretion. Rather, such decisions are governed by the inherent jurisdiction of the court to control its own processes once the Attorney General has elected to enter into that forum. [Emphasis added].

[11] The second limitation on the Attorney-General’s immunity, set out in Krieger, supra at paras. 49 and 51, is that even those “core” decisions that are protected by the independence principle can be reviewed on a highly deferential standard of “flagrant impropriety”, drawn from the abuse of process and malicious prosecution case law:

In Campbell v. Attorney-General of Ontario (1987), 1987 CanLII 4333 (ON CA), 35 C.C.C. (3d) 480 (Ont. C.A.), it was held that an Attorney General’s decision to stay proceedings would not be reviewed save in cases of “flagrant impropriety”. See also Power, supra; Chartrand v. Quebec (Minister of Justice) (1987), 1987 CanLII 751 (QC CA), 59 C.R. (3d) 388 (Que. C.A.). Within the core of prosecutorial discretion, the courts cannot interfere except in such circumstances of flagrant impropriety or in actions for “malicious prosecution”: Nelles, supra. In all such cases, the actions of the Attorney General will be beyond the scope of his office as protected by constitutional principle, and the justification for such deference will have evaporated.

Review by the Law Society for bad faith or improper purpose by a prosecutor does not constitute a review of the exercise of prosecutorial discretion per se, since an official action which is undertaken in bad faith or for improper motives is not within the scope of the powers of the Attorney General. As stated by McIntyre J. in his concurrence in Nelles, supra, at p. 211: “public officers are entitled to no special immunities or privileges when they act beyond the powers which are accorded to them by law in their official capacities”. We agree with the observation of MacKenzie J. that “conduct amounting to bad faith or dishonesty is beyond the pale of prosecutorial discretion” (para. 55).

[12] The approach to this issue set out in Krieger, ten years ago, was recently re-affirmed in R. v. Nixon, supra at paras. 52 and 64. Charron J. gave the unanimous judgement of the full court and stated:

The application judge’s assessment of a decision made in the exercise of prosecutorial discretion for “reasonableness” runs contrary to the principles set out in Krieger. Paperny J.A. reiterated these principles, and explained that it is not the role of the court to look behind a prosecutor’s discretionary decision to see if it is justified or reasonable in itself (paras. 46-49). By straying into the arena and second-guessing the decision, the reviewing court effectively becomes a supervising prosecutor and risks losing its independence and impartiality. Due regard to the constitutionally separate role of the Attorney General in the initiation and pursuit of criminal prosecutions puts such decisions “beyond the legitimate reach of the court” (Krieger, at para. 32). Thus, the court does not assess the reasonableness or correctness of the decision itself; it only looks behind the decision for “proof of the requisite prosecutorial misconduct, improper motive or bad faith in the approach, circumstances or ultimate decision to repudiate” (Court of Appeal decision, at para. 49).

This approach is consistent with the principles set out in Krieger. Acts of prosecutorial discretion are not immune from judicial review. Rather, they are subject to judicial review for abuse of process.

[13] Prior to Krieger and Nixon, a considerable body of case law had developed wherein private prosecutors challenged decisions by Crown counsel to intervene in a case and to either proceed with it or stay it. None of these challenges were successful. The Courts consistently upheld the power of the Crown to take over a private prosecution and generally held that the Crown’s decision to prosecute or stay the privately laid charges could only be reviewed on a standard of “flagrant impropriety” and not on a standard of “reasonableness”. Krieger and Nixon, of course, have now confirmed this approach to the issue. See: Re Bradley and the Queen (1975), 1975 CanLII 766 (ON CA), 24 C.C.C. (2d) 482 (Ont. C.A.); Campbell v. Ontario (Attorney General), supra; Re Osiowy and the Queen (1989), 1989 CanLII 4780 (SK CA), 50 C.C.C. (3d) 189 (Sask. C.A.); Re Chartrand and Quebec (Attorney General) (1987), 1987 CanLII 751 (QC CA), 40 C.C.C. (3d) 270 (Que. C.A.); Kostuch v. Alberta (Attorney General) (1995), 1995 CanLII 6244 (AB CA), 101 C.C.C. (3d) 321 (Alta. C.A.); Re Baker and The Queen (1986), 1986 CanLII 1151 (BC SC), 26 C.C.C. (3d) 123 (B.C.S.C.); Re Hamilton and The Queen (1986), 1986 CanLII 1181 (BC SC), 30 C.C.C. (3d) 65 (B.C.S.C.).

[14] It is clear from the above authorities that Crown counsel’s decisions in this case, to intervene and take control of a private prosecution and to enter a stay of proceedings, were both decisions within the “core” discretion that are generally immune from judicial review, subject only to the abuse of process doctrine. The Applicant Ahmadoun conceded this and seeks to take on the difficult burden of establishing “abuse of process”.

C. THE APPLICANT’S ATTEMPT TO PROVE “ABUSE OF PROCESS” ON THE FACTS OF THIS CASE.

[15] Ahmadoun’s theory of “abuse of process” on the facts of this particular case, is far-reaching. He did not confine his analysis to anything that happened at the pre-enquête on March 4, 2011. Rather, he reached back into the trial proceedings before Greene J. in 2010, culminating in his own acquittal on November 10, 2010, and submitted that it is the entire course of the Crown’s conduct throughout both of these proceedings that infers “flagrant misconduct” in the ultimate decision to enter a stay of the charges against Tibari. Each step that the Crown took over a year long period, from April 2010 to March 2011, is said to be related and cumulative. Ahmadoun asked the court to draw the inference of “flagrant misconduct” from a long series of allegedly inter-connected events and decisions.

[16] Unfortunately, the Applicant’s analysis of the facts and the law is misconceived at numerous steps in his lengthy chain of reasoning. I will set out a number of examples of the Applicant’s flawed process of analysis, without exhaustively reviewing the merits of his allegations against Tibari. As noted above, the scope of judicial review in this case does not include considerations such as the reasonableness or correctness of the Crown’s decision not to prosecute but focuses on whether the Applicant has proved “flagrant misconduct” and “abuse of process”.

[17] In very brief summary, the factual background leading to the initial charges against the Applicant Ahmadoun involved a relationship between him and Tibari that had ended in December, 2008. Towards the end of the relationship, Ahmadoun had received a speeding ticket. Tibari was not with him in the car at the time he received the speeding ticket but, nevertheless, Ahmadoun felt that she had relevant evidence to give about the alleged speeding infraction. He had been with her earlier in the evening and he believed that her evidence as to the timing of certain events earlier that evening would infer that the officer who issued the speeding ticket had made a mistake as to the correct time of the alleged infraction. Ahmadoun still wanted Tibari to testify at his speeding trial, even after their relationship had ended in December 2008. Disputes about whether Tibari had any relevant evidence to give, whether Ahmadoun was or was not asking her to lie in court, and whether he was simply using the speeding ticket as a device to justify ongoing unwanted contact with Tibari became the backdrop to communications between the parties in early 2009. Tibari twice called the police who twice told Ahmadoun not to contact Tibari. He continued to contact her and the police eventually laid three charges against Ahmadoun in April 2009: first, personating a peace officer, relating to Ahmadoun’s service of a summons to Tibari requiring that she attend and testify at the speeding trial; second, attempt to obstruct justice, relating to whether Ahmadoun was trying to get Tibari to lie at the speeding trial; and third, criminal harassment, relating to the ongoing unwanted contact with Tibari.

[18] The first step in Ahmadoun’s “abuse of process” analysis relates to events a year after the charges were laid, on April 12, 2010. The matter was set to proceed to trial and the Crown began by withdrawing the charge of personating a police officer. The Crown had obviously reviewed the brief and had concluded that there was no reasonable prospect of conviction on this one charge. The trial had to be adjourned, on the other two charges, due to the need to translate some e-mails between Ahmadoun and Tibari that were written in the French language and that were important evidence in the case. After the adjournment, Crown counsel entered into resolution discussions with defence counsel. I have real concerns about the Applicant’s disclosure of these resolution discussions as they are privileged. See: Sopinka et al, The Law of Evidence in Canada, 2nd Ed. 1999, Butterworths Canada Ltd., at 985-9; R. v. L. (N.) (1998), 1998 CanLII 14944 (ON SC), 124 C.C.C. (3d) 564 (Ont. S.C.J.); R. v. Pabani (1994), 1994 CanLII 8723 (ON CA), 89 C.C.C. (3d) 437 (Ont. C.A.); R. v. Legato (2002), 2002 CanLII 41296 (QC CA), 172 C.C.C. (3d) 415 (Que. C.A.). Nevertheless, the Crown has not raised this issue and has chosen to deal with the particular Crown misconduct alleged by Ahmadoun on its merits. Accordingly, I will take the same approach. The resolution offered by the Crown was withdrawal of the two remaining criminal charges if Ahmadoun would undertake not to summons Tibari to the speeding ticket trial, which had still not taken place. This proposed resolution was based on discussions between the Crown and Tibari in which she acknowledged that Ahmadoun had not contacted her in the year since charges were laid, while he was on bail, and that they had both “moved on”.

[19] Ahmadoun refused the offer of resolution, feeling that he would only be vindicated by an unconditional withdrawal of all charges. The trial of the two remaining charges was adjourned to August 2010. Ahmadoun now alleges that the resolution offered by the Crown in April 2010 was tantamount to obstructing justice. As he put it in his Factum:

The Crown attempted to prevent the Applicant from exercising his legal rights (i.e. summonsing a witness to court) and offered to withdraw the remaining two charges if the Applicant undertakes to forego his defence in the traffic matter by not summonsing the complainant to testify in court. The Crown was attempting to pressure the Applicant into dropping a summons…The Crown is saying that the Applicant will be prosecuted unless he drops the summons.

[20] The flaw in Ahmadoun’s argument on this point is that he had served Tibari with a summons in February 2009 and had then sent her an e-mail in April 2009 relieving her from the summons. This e-mail formed part of the Crown’s case on the criminal harassment charge and was alleged to be part of the ongoing unwanted contact with Tibari. The speeding ticket trial date in 2009, to which Tibari had originally been summonsed, was adjourned and Ahmadoun did not renew or continue the summons. He conceded that he had obtained disclosure of the police officer’s notes, relating to the timing of the speeding infraction, and that he no longer needed Tibari to testify in relation to the technical issue of the exact time of the speeding ticket. Defence counsel, who acted for Ahmadoun at the criminal trial, conceded that his client had already agreed not to summons Tibari to the new speeding ticket trial date that was now set in 2010. As a result, when Crown counsel made the resolution offer in April 2010, more than a year after the original speeding ticket summons had been served, the parties were agreed that Tibari was not needed as a witness at the speeding ticket trial and she was no longer subject to a summons.

[21] In these circumstances, these could be no possible impropriety in the Crown’s resolution offer. Ahmadoun’s experienced defence counsel never raised any suggestion of impropriety, let alone “abuse of process”, when the criminal trial resumed before Greene J. in August 2010. Tibari had always been a doubtful or peripheral witness, at best, in the speeding ticket proceedings. Ahmadoun had now conceded that he did not need her as a witness and had relieved her of the summons. There was no misconduct when Crown counsel asked for Ahmadoun’s undertaking not to renew the summons. It must be remembered that the Crown’s theory was that Ahmadoun had used the speeding ticket trial as a device to justify ongoing unwanted contact with Tibari and the Crown was simply trying to prevent any repetition of this conduct.

[22] The second step in Ahmadoun’s “abuse of process” analysis relates to the obstruct justice charge. By the end of the trial, on October 12, 2010, Crown counsel was satisfied that the count alleging obstruct justice should be dismissed. At the outset of closing submissions, the Crown invited the trial judge to dismiss this particular charge and Greene J. agreed. Crown counsel referred to having heard “evidence on the part of Mr. Ahmadoun” at trial as the basis for the Crown’s position that the obstruct charge should be dismissed.

[23] Ahmadoun now alleges that the Crown’s earlier offer to withdraw all charges, in the resolution discussions prior to trial, combined with the Crown’s eventual realization after trial that the obstruct justice charge should be dismissed, infers that there was misconduct in the Crown’s decision to proceed to trial on this charge. Ahmadoun submits that the obstruct justice charge was patently without merit. It depended on the theory that he was asking Tibari to lie at the speeding ticket trial when his own e-mails to Tibari, on which the Crown was relying to prove the criminal harassment charge, made it clear that he was not asking Tibari to lie.

[24] The flaws in Ahmadoun’s argument on this point are two-fold. First, an offer to withdraw a charge as part of resolution discussions does not indicate that there is no proper case to prosecute. It usually means that withdrawal would be in the public interest in light of all the circumstances surrounding the proposed resolution. Second, the e-mails that Ahmadoun sent Tibari, insisting that he was not asking her to lie, were entirely self-serving. Tibari took a different view of the matter. The Crown was entitled to proceed to trial and wait until after Ahmadoun had given sworn evidence on this point, and had been cross-examined on it, before deciding that there was at least a reasonable doubt on the obstruct justice count. In short, there was no misconduct when Crown counsel proceeded to trial and then properly asked Greene J. to dismiss the obstruct charge at the end of the trial.

[25] The third step in Ahmadoun’s “abuse of process” analysis relates to the criminal harassment count on which the Crown did seek a conviction in closing submissions. The Crown conceded, at an early stage of its submissions, that the case was “not at the high end of a criminal harassment”. Furthermore, at the conclusion of these submissions Crown counsel sought a peace bond in the alternative, stating “If your honour is not satisfied beyond a reasonable doubt, I would respectfully request that you exercise your common law jurisdiction and ask that he enter into a …peace bond.” The Crown agreed to carve out an exception to the peace bond, should Ahmadoun subsequently decide that he needed to summons Tibari to the speeding ticket trial, allowing for service of a summons by the officer-in-charge.

[26] Ahmadoun submits that the above course of conduct at trial, combined with the Crown’s earlier offer to resolve the case prior to trial, all tends to indicate that the Crown knew they did not have a proper case of criminal harassment to prosecute. Again, the flaws in this analysis relate to Ahmadoun’s misconceptions about resolution discussions and about realistic submissions to the court by counsel to the effect that a given set of facts may not be the most serious example of a particular offence and that alternative lesser remedies may be available. Crown counsel have always been encouraged to take reasonable positions and to be flexible, both in resolution discussions and at trial. It is well established that the gravity of the particular case and the availability of alternative remedies are appropriate “public interest” considerations for the Crown to weigh, even though there is “a case” that could be made out. See: The Martin Committee Report, supra at 74-80 and 96-9. None of this reasonable flexibility has ever been taken to amount to an acknowledgement that the Crown has no case to prosecute.

[27] I have reviewed Crown counsel’s submissions on the criminal harassment count and she accurately set out the elements of the offence and explained how the evidence satisfied each element. In her Reasons for Judgement, Greene J. eventually acquitted Ahmadoun but never suggested that the Crown did not have a proper case to prosecute. Indeed, Greene J. found that the Crown had proved both elements of the actus reus of the offence, stating “I do accept [Tibari’s] evidence that she did feel harassed.” However, Greene J. had a reasonable doubt on the mens rea elements. It was a close case on this point as Greene J. flatly rejected some of Ahmadoun’s evidence, found that there was “some evidence that [Ahmadoun] should have known that [Tibari] was harassed”, and found that one of Ahmadoun’s e-mails to Tibari was particularly “troubling” on the critical issue of his alleged intention to harass. During submissions, Greene J. had agreed with Crown counsel that this one e-mail was “very bizarre” and agreed that Ahmadoun had likely misinterpreted one of the two phone calls from the police warning him against further contact with Tibari. As to the Crown’s proposed alternative of a peace bond, Greene J. made one relevant finding when she stated, “I do accept Ms. Tibari, that she in fact was fearful. I have no reason to reject her evidence on this point.” However, Greene J. went on to note “that Mr. Ahmadoun has had no contact with Ms. Tibari while he has been on bail for this matter” and there was considerable “evidence about his good conduct that was put forward before the Court.” In all these circumstances, Greene J. denied the request for a peace bond but concluded with this clear warning or injunction to Ahmadoun:

Having said that, Mr. Ahmadoun, she [Tibari] does not want contact. If you contact her again it will amount to criminal harassment most likely. All right, sir? Do not contact her. [Emphasis added].

[28] As I read the trial judge’s Reasons, the Crown succeeded in proving much of its case and almost obtained either a conviction or a peace bond. Indeed, the Crown arguably did obtain something close to a peace bond, given the trial judge’s concluding warning to the accused. In these circumstances, there was no possible misconduct in proceeding with the prosecution and seeking either a conviction or a peace bond on the one count of criminal harassment.

[29] The fourth step in Ahmadoun’s “abuse of process” analysis relates to the Crown’s conduct at the pre-enquête. After his acquittal, Ahmadoun swore an Information alleging three offences against Tibari: first, that she committed perjury when testifying at Ahmadoun’s criminal trial; second, that she committed public mischief in making allegedly false accusations to the police against Ahmadoun; and third, that she attempted to obstruct justice in allegedly lying to the police and then to the court. After a significant amount of evidence was tendered at the pre-enquête, Justice of the Peace McNish was satisfied that the Applicant had made out a prima facie case on all three counts and issued process. As already noted, the Crown then intervened in the prosecution and entered a stay, based on both of the charge screening standards found in the Crown Policy Manual.

[30] In summary, Ahmadoun alleges at least five distinct kinds of Crown misconduct at the pre-enquête: first, that the Crown’s charge screening standard in relation to Tibari was more rigorous than the standard applied in Ahmadoun’s own case; second, that the Crown departed from its proper role and advanced “defences” in favour of Tibari at the pre-enquête; third, that the Crown delayed entering a stay until after the Justice of the Peace had already ruled and issued process, indicating a lack of respect for the judicial process and an intent to circumvent the Court’s ruling; fourth, that the Crown applied the charge screening standard to the body of evidence called at the pre-enquête, without first investigating any further evidence that might have been available, which effectively elevated the prima facie case standard for issuing process to the higher charge screening standard; and fifth, that the Crown exhibited bias in protecting its own Crown witness from prosecution.

[31] None of these allegations of Crown misconduct at the pre-enquête has any merit. The first form of misconduct, alleging a double standard in charge screening, depends on the submission that the Crown’s earlier case against Ahmadoun was weak and should not have been prosecuted. I have already rejected this submission.

[32] The second submission is factually and legally incorrect. I have reviewed the Crown’s submissions at the pre-enquête. She was not advancing “defences” on behalf of Tibari. Instead her focus was on the essential elements or evidentiary requirements of the offences, in particular, whether there was an intent to mislead, whether there was corroboration on the perjury count, and whether Tibari knowingly made false accusations against Ahmadoun. Greene J. had already made findings at trial that Ahmadoun and Tibari had both misinterpreted what was happening at various points. She also rejected some parts of what each side testified to, because it was contradicted by the e-mails, and accepted other parts of what each side testified to. In short, the factual record in the case was one where the Crown could quite properly question whether there was sufficient evidence of certain essential elements. There was also room for reasonable legal debate as to whether Ahmadoun’s e-mails and telephone records amounted to “independent” corroboration in law, given that they depended on Ahmadoun’s testimony for much of their probative worth. See: Sopinka et al, The Law of Evidence in Canada, supra at 985-9. In short, I found nothing improper in the Crown’s submissions at the pre-enquête. I also wish to be clear that at the charge screening stage, when the Crown entered a stay, it is perfectly appropriate to take available “defences” into consideration. See: The Martin Committee Report, supra at 55-65 and 136-7.

[33] The third form of misconduct alleged at the pre-enquête is complicated and hard to understand. It is submitted that the evidence never changed, before or after the pre-enquête, and that the Crown should have entered a stay prior to the pre-enquête if the Crown’s genuine view was that the case was not a proper one to prosecute. By waiting until after process issued, the Crown is said to have showed disrespect for the judicial process and to have used the stay as a tool to circumvent a judicial ruling. Ahmadoun relies, in this regard, on the Scott line of authority concerning improper use of the stay power in order to circumvent an unfavourable judicial ruling. See: R. v. Scott (1990), 1990 CanLII 27 (SCC), 61 C.C.C. (3d) 300 (S.C.C.). The law used to be that the Crown could only enter a stay after process had issued. See: R. v. Dowson (1983), 1983 CanLII 59 (SCC), 7 C.C.C. (3d) 527 (S.C.C.). The law has changed and there is now authority to the effect that the Crown can enter a stay as soon as an Information is sworn. See: McHale v. Ontario (Attorney General) (2010), 2010 ONCA 361, 256 C.C.C. (3d) 26 (Ont. C.A.); R. v. Pardo (1990), 1990 CanLII 10957 (QC CA), 62 C.C.C. (3d) 371 (Que. C.A.). As I read the record, Crown counsel was aware of Dowson, supra and was following the procedure set out in that case. She did not seem to be aware of McHale, supra, which had only been decided about eight months before the pre-enquête commenced. In any event, the procedure in Dowson is far more generous and fair to a private informant, allowing Ahmadoun to call his evidence and make out a case before the Justice of the Peace for issuing process. In this way, Crown counsel could take the evidence called at the pre-enquête into account, as well as the Justice of the Peace’s decision, before deciding whether to proceed or whether to stay the prosecution. There was nothing unfair about proceeding in this way. Furthermore, the Crown did not use the stay in order to circumvent an unfavourable ruling, for example, after the denial of an adjournment or after an adverse evidentiary ruling at trial, as in the Scott line of cases. The Justice of the Peace found that a prima facie case existed. The Crown then decided that there was no “reasonable prospect of conviction” and that a prosecution was “not in the public interest”. The Justice of the Peace never decided the matters that the Crown decided. They were both exercising completely distinct and separate powers of decision in which neither could encroach. Accordingly, there is no merit to Ahmadoun’s third submission.

[34] The fourth submission, concerning failure to investigate any further evidence that might have been available was not raised at the pre-enquête. No mention was made of the list of potential additional evidence that the Applicant Ahmadoun has now set out at the end of his Reply Factum, filed with the Court on January 30, 2012, the day before the hearing of this Application. The Crown is not obliged to ask the police to carry out further factual investigations in every case where a charge is laid and where process issues. The very late mention of this list of potential further evidence tends to indicate its peripheral significance. The Applicant does not dispute that the Crown already had a very full file in relation to this case as it had proceeded through one trial and counsel for Ahmadoun had then called a substantial body of evidence at the pre-enquête, with the Crown present throughout. In these circumstances, it was entirely proper to make a charge screening decision on the record that was already in the Crown’s hands. See: The Martin Committee Report, supra at 130-5. This did not somehow change or elevate the standard for issuing process. As already noted, the Crown’s charge screening decision was separate and different from the Justice of the Peace’s decision concerning process. There is no merit to Ahmadoun’s fourth submission.

[35] The fifth and last form of misconduct alleged is that the Crown’s motive, in entering a stay, was to protect its former witness Tibari. There is no direct evidence of this biased motive. It depends on circumstantial inferences drawn from the entire course of alleged misconduct that had preceded the stay. In particular, it depends on the first submission to the effect that the Crown utilized a double standard in its charge screening decision in order to protect its own witness Tibari. As I have rejected that first submission and have also rejected the entire alleged course of misconduct, there is simply no factual basis from which to infer bias. I note that new Crown counsel was assigned to the pre-enquête. There is no evidence that she had any connection to, or any communication with, Crown counsel who conducted the prior prosecution of Ahmadoun. I have carefully reviewed her submissions at the pre-enquête and there is no hint of a biased motive. Her submissions were consistently principled and were tenable, on the facts and law applicable to this case. There is no merit to Ahmadoun’s fifth submission concerning an allegedly biased motive.

[36] I should note that Ahmadoun attempted to frame this bias argument as a s.15 Charter of Rights issue, for the first time, in his Reply Factum. Leaving aside the late notice of this Charter issue, Ahmadoun concedes that it depends on the same factual basis as his rejected common law bias argument. The s. 15 Charter argument lacks any factual foundation, in the same manner as the bias argument.

D. CONCLUSION:

[37] None of the Crown misconduct alleged by Ahmadoun has been made out. Whether the various steps in his chain of reasoning are viewed individually, or cumulatively, there is nothing in this case that even approaches the standard of “flagrant misconduct” and “abuse of process” that the Applicant must meet in order to succeed in his Application.

[38] For all these reasons, the Application is dismissed.

M.A. CODE J.

Released: February 13, 2012