Court File and Parties

COURT FILE NO.: 16-13237-00M0(Ottawa) DATE: 2016/07/ 15 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HER MAJESTY THE QUEEN, Respondent AND CORALIE PERKINS-ABOAGYE, Applicant

BEFORE: The Honourable Justice Robert Pelletier

COUNSEL: Moiz Karimjee for the Respondent Applicant is self-represented

HEARD: July 6, 2016

Endorsement

Introduction

[1] The Applicant brings the present Certiorari Application seeking an order quashing the stay of proceedings entered by the Attorney General in relation to charges proposed by the Applicant. She also seeks an order returning the matter before a justice of the peace for s.504 pre-enquete to determine whether process should issue compelling the proposed subjects to answer to the proposed charges. At the heart of the present application is the issue of whether the Attorney General can intervene pursuant to s. 504 of the Criminal Code and direct a stay of proceedings prior to a pre-enquete to being held.

[2] For the reasons that follow, the Application is dismissed. During the course of the present application, the Respondent Attorney General brought an application for a summary dismissal of the Certiorari Application, pursuant to s. 6.11(2) of the Criminal Proceedings Rules of the Superior Court of Justice (Ontario). For reasons of convenience, and as the issues are common to both the Certiorari Application and the Attorney General’s summary dismissal applications, both matters were heard together and submissions were heard in relation to both applications.

Background

[3] The Applicant’s proposed charges relate to a series of individuals associated with the Greenboro Community Centre Association with whom the Applicant found herself in conflict. This conflict resulted in a 2 applications brought before the Human Rights Tribunal of Ontario in which the Applicant alleged discrimination based on race, colour, ancestry and sexual orientation. Those applications were dismissed by the Human Rights Tribunal in comprehensive reasons released on July 14, 2014. The present Endorsement is to be read in conjunction with those reasons, set out at Tab 5 of the Respondent’s Application Record in connection with the Certiorari Application before this Court.

[4] The Applicant further brought a complaint against certain peace officers with the Ottawa Police Service, in relation to their involvement in the initial conflict. Those complaints were investigated and determined, by the Police Standards Section of the Ottawa Police, to reveal an absence of grounds to substantiate misconduct by the involved officers. The investigative report is also to be read in conjunction with the present Endorsement. That report is found at Tab 6 of the Respondent Attorney General’s materials in the present Application.

[5] The Applicant then chose to avail herself to her right to lay a private information and seek the issuance of process compelling the attendance of the persons charged. This hearing was conducted before Justice of the Peace B. Souliere of the Ontario Court of Justice, sitting in Ottawa, on December 7, 2015.

[6] At the hearing, the Attorney General, represented by assistant Crown Attorney R. Thomson, intervened and directed a stay of proceedings, citing that upon a review of “approximately 1000 pages or more, from Ms. Perkins-Aboagye, and after reviewing the materials, the Crown will stay all of the private prosecutions, pursuant to s.579 of the Criminal Code. The Crown does not believe that any of these allegations have a reasonable prospect of conviction.”

[7] The present Application for Certiorari seeks to set aside the stay of proceedings and have the matter returned for a hearing before a justice of the peace to determine whether process should issue compelling the attendance of those named in the charge document.

The Law

[8] It is well settled that the Attorney General has a supervisory role in the administration of criminal justice and is governed by a standard of assessing both the merits and the advisability of proceeding with criminal charges. The standard involves determining firstly whether a reasonable prospect of conviction exists in relation to a criminal charge, and secondly whether the prosecution is in the public interest. (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).

[9] The prosecution at the December 7, 2015 hearing was both entitled and expected to conduct such a review of the charges. Having done so, the Attorney General exercised its discretion in discontinuing the case, without the pre-enquete being conducted, but following a review of the comprehensive brief assembled by the Applicant.

[10] The prosecution is further entitled to intervene and direct a stay of proceedings at any time after an information has been laid. (McHale v. Ontario (Attorney General), [2010] O.J. No. 2030 (Ont.C.A.) at paragraphs 83-86, and 89-90. R. v. Olumide, [2014] O.J. No. 4891 (Ont.C.A.) at para.2).

[11] At the December 7, 2015 hearing, the informations had been laid, that is the charges themselves existed. The December 7, 2015 hearing had as its purpose the determination of whether the persons charged would be compelled to answer to the charges.

[12] I would conclude therefore that the Attorney General was authorized to intervene as it did which would compel a dismissal of the present Application, absent abuse of process in the exercise of its prosecutorial discretion. The prosecution is presumed to exercise its functions properly. The exercise of its discretion can only be scrutinized by the Court if it can be reasonably argued that in discharging its duties as public prosecutors it has demonstrated bad faith or improper purpose, defined as flagrant impropriety.

[13] The independence of the Attorney General and the deference due to the exercise of its discretion has been recognized and reaffirmed repeatedly.

See Krieger v. Law Society of Alberta, 2002 SCC 65, [2000] 168 C.C.C. (3rd) 97 (S.C.C.) at para.32, 42-43, 46-47, 49, 51.

“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 Hoeme and Law Society of British Columbia (1985), 20 C.C.C. (3rd) 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 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.

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, s. 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), 25 C.C.C. (2nd) 405 (N.B.C.A.); and the discretion to take control of a private prosecution: R. v. Osiowy (1989), 50 C.C.C. (3rd) 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.

In Campbell v. Attorney-General of Ontario (1987), 35 C.C.C. (3rd) 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, [1994] 1 S.C.R. 601, supra; Chartrand v. Quebec (Minister of Justice) (1987), 59 C.R. (3rd) 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, [1989] 2 S.C.R. 170, 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 McKenzie J. that “conduct amounting to bad faith or dishonesty is beyond the pale of prosecutorial discretion”. (para.55)

See also R. v. Nixon, 2011 SCC 34, [2011] 271 C.C.C. (3rd) 36 (S.C.C.) at para. 52 and 64.

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.”

[14] It remains therefore to be determined whether, in the context of the present case, it can be said that the agent for the Attorney General demonstrated or was governed by bad faith or otherwise exercised his functions with flagrant impropriety in directing a stay of proceedings. There is no direct evidence on this issue.

[15] In her submissions, the Applicant, self-represented yet quite capable of conveying her perspective, invited the Court do draw adverse inferences against the prosecutor for three specific reasons: firstly, she questions whether the prosecutor conducted a fulsome review of her 1000 page brief as she states that the materials amply revealed the substance of the charges, secondly, she asserts that in not having consulted her prior to and after his decision to direct a stay of proceedings, the prosecutor was remiss in his duties towards the public and thirdly she questions the prosecutor’s competence based on separate proceedings, not involving the Applicant, during which, she states, the prosecutor did not appear qualified to execute the duties conferred upon prosecutors.

[16] On the first contention, it is not the function of the Court as stated in the jurisprudence cited, to inquire into the correctness of the Attorney General’s decision to pursue or abandon any given prosecution. Absent compelling evidence of “flagrant impropriety”, the exercise of directing prosecutions is, and must remain, within the Attorney General complete discretion.

[17] On the Applicant’s second contention; there is no duty upon the Attorney General to consult with persons involved in the laying of criminal charges. The failure to do so, while seemingly an affront to the Applicant’s sense of decency, is not tantamount to bad faith or abuse of process.

[18] Finally, as regards to the third contention, the Court’s function in matters such as these does not extend to an assessment of the competence of the Attorney General’s agents. In any event, the basis upon which the Applicant suggests that the prosecutor is under qualified is too vague, subjective and speculative to be of any moment.

[19] I would accordingly dismiss the Application on its merits. The Attorney General’s parallel application for a summary dismissal is necessarily subsumed in the dismissal of the Application itself.

The Honourable Justice Robert Pelletier Date: July 15, 2016

COURT FILE NO.: 16-13237-00M0(Ottawa) ONTARIO SUPERIOR COURT OF JUSTICE RE: HER MAJESTY THE QUEEN, Respondent AND CORALIE PERKINS-ABOAGYE, Applicant BEFORE: The Honourable Justice Robert Pelletier COUNSEL: Moiz Karimjee for the Respondent Applicant is self-represented ENDORSEMENT Pelletier, J. Released: July 8, 2016