COURT FILE NO.: 78/18
DATE: 2018 06 20
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Respondent
– and –
Robert Glegg
Applicant
COUNSEL:
David D’lorio, for the Respondent
Leo Adler, for the Applicant
HEARD: June 18, 2018
REASONS FOR DECISION
Conlan J.
I. INTRODUCTION
[1] Should Robert Glegg’s Application for, among other things, an Order setting aside the stay of his private prosecution at the direction of the Crown be summarily dismissed under Rule 34.02 of the Criminal Proceedings Rules for the Superior Court of Justice?
[2] The Crown says yes. The Applicant says no; the matter ought to move forward to a hearing.
[3] With much respect for Mr. Adler, counsel for the Applicant, I agree with the Crown. For the following reasons, the Application is dismissed.
II. THE BACKGROUND
[4] On March 27, 2018, Robert Glegg (“Glegg”) swore an Information alleging three offences against his former spouse, Katalin Van Den Hurk (“Katalin”). Specifically, it was alleged that (i) between August 24, 2014 and October 2, 2014, at Oakville and at Fort Lauderdale, Florida, Katalin did abduct the parties’ child, Olivia, contrary to section 280 of the Criminal Code, and (ii) between October 10, 2015 and August 9, 2016, at the same places, Katalin did disobey Court Orders made in Ontario and in Florida, contrary to section 127 of the Criminal Code, and (iii) between April 18, 2016 and August 9, 2016, at Toronto and at Fort Lauderdale, Katalin did commit perjury by swearing false statements, contrary to section 131(1) of the Criminal Code.
[5] Glegg prepared a detailed “Memorandum” to support the Information. In that document, he set out the alleged facts relevant to the abduction offence, including that (i) he and Katalin were married in March 1998 and separated in 2001, (ii) they have one child, Olivia, born in July 1999, (iii) they signed a Separation Agreement which included a prohibition against moving the child’s residence outside a specified radius in Oakville, (iv) in 2013, Katalin and her new family moved to Fort Lauderdale, (v) from then on, Olivia lived primarily with Glegg, (vi) when Olivia went to visit Katalin in August 2014, Katalin kept the child in Fort Lauderdale and advised Glegg, through her lawyer, that Olivia would be staying there permanently, (vii) Glegg obtained an Order from the Superior Court of Justice in Ontario for temporary custody of the child, and then an Order in Florida for similar relief, and then another Order from the Superior Court of Justice in Ontario that Katalin return Olivia to Ontario immediately, and (viii) eventually, with police assistance in Florida, the child was returned to Ontario.
[6] In the Memorandum, Glegg set out that the basis for the section 127 count was that Katalin wilfully disobeyed the Ontario Superior Court of Justice Orders made after Olivia did not return to Ontario upon her visit to Florida.
[7] With regard to the perjury offence, as described in the Memorandum, it is alleged that Katalin, very shortly after the child arrived in Florida for the visit in August 2014, improperly took steps to register Olivia in school in Fort Lauderdale. Then, in her Affidavits filed in the family litigation, she allegedly made a series of false statements, for example, that she did not facilitate the child’s application to the University of Miami (when Glegg asserts that Katalin certainly did facilitate that, as proven by the school records themselves).
[8] The family litigation between the parties continued for years, after which Glegg swore the criminal Information.
[9] Glegg hired counsel, Mr. Adler, to assist him with the private prosecution. Mr. Adler had communications with Mr. Coppolino, for the Crown. A wealth of materials was provided by Glegg to the Crown for review. In addition, Mr. Adler, on behalf of Glegg, attempted to answer any questions or concerns that the Crown had about the prosecution, such as whether Olivia would be a required witness in the matter.
[10] The private Information was scheduled for a pre-enquete hearing (an “in camera” proceeding before a justice of the peace to determine if, on the private complaint of someone, process ought to issue against the accused person). On May 9, 2018, at that Court attendance in Milton before Justice of the Peace Dechert, Glegg, Mr. Adler and Mr. Coppolino were present. For reasons put on the record by the Crown (a transcript has been prepared), the Crown intervened in the private prosecution and directed the clerk to stay the proceeding. The stay was entered.
III. THE APPLICATION
[11] Understandably upset about the stay of his private prosecution, Glegg applied to this Court for various relief, all set out below as taken from pages 1 and 2 of the Notice of Application:
a) A declaratory Order to set aside the Stay of the proceedings – which were initiated by an Information sworn by the Applicant on March 27, 2018, pursuant to s.504(b) of the Criminal Code of Canada (“Code”) – as was directed by the Attorney General’s counsel (“Crown”) to the Clerk of the Court on May 9, 2018, pursuant to s.579(1) of the Code;
b) A Ruling that the Crown’s direction to the Clerk of the Court to enter a Stay of proceedings, pursuant to s.579(1) of the Code, was a breach of the Applicant’s rights, contrary to s.7 of the Charter of Rights and Freedoms (“Charter”).
c) The seeking of an Order under s.24(1) of the Charter for such Stay to be vacated and for the hearing under s.507.1 of the Code to proceed – or for such any or other remedy deemed to be appropriate;
d) A finding by this Court, pursuant to s.52(1) of the Constitution Act, that the Crown’s directing of the Clerk of the Court to enter a Stay per: s.579(1) of the Code, at this stage of the proceedings and in these unique circumstances, are of no force or effect, and for the hearing under s.507.1 of the Code to thereby proceed.
e) An Order by way of writ of mandamus ordering the Justice to proceed with the hearing of the evidence in accordance with s.507.1 of the Code;
f) Such further and other Order and remedy that counsel may advise and this Honourable Court may permit.
[12] The Crown not only opposes the Application but has asked that this Court summarily dismiss it without conducting a full hearing. The authority for that is found in Rule 34.02 of this Court’s Criminal Proceedings Rules:
34.02 The presiding judge may conduct a preliminary assessment of the merits of any pre-trial or other application on the basis of the materials filed, and, if satisfied that there is no reasonable prospect that the application could succeed, may dismiss the application without further hearing or inquiry.
[13] In addition to the materials that had been filed on the Application itself, both sides made written filings on the Rule 34.02 request.
IV. THE COURT ATTENDANCE ON JUNE 18, 2018
[14] Upon reviewing the file, I was perplexed as to why the Rule 34.02 request by the Crown was returnable in Court in Milton on June 18th. In any event, as both counsel were in attendance, I heard submissions on the Rule 34.02 question and reserved my decision.
[15] I wish to point out that, with respect, what occurred on June 18th was not the proper procedure, in my opinion. On the face of Rule 34.02, and in keeping with its spirit and intention, no Court attendance and no oral submissions ought to generally be set/heard on such a request. Rather, it ought to be decided strictly on the basis of the materials filed.
V. ANALYSIS
The Test on a Rule 34.02 Request
[16] The Crown bears the burden of establishing, on balance, that Glegg’s Application has no reasonable prospect of success.
[17] I agree with Nordheimer J., as His Honour then was, that “the threshold for summarily dismissing an application is a high one”. R. v. Papasotiriou-Lanteigne, [2017] O.J. No. 4620, at paragraph 19.
[18] The Rule is not meant to deny a litigant her day in Court solely because the issue raised is a novel one. After all, the law is a living organism. To summarily dismiss this type of application is akin to striking out a pleading in the civil context, and for that reason, I agree that Rule 34.02 is a tool that ought to be used with care. R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at paragraph 21.
[19] Ultimately, an adjudicator in this Court’s shoes ought to ask itself the following question: on the basis of the filings, taking the applicant’s position at its highest, can it reasonably be said that the application could succeed?
The Test as Applied to our Facts
[20] At the heart of Glegg’s Application is his dissatisfaction with the exercise of the Crown’s discretion to intervene in his private prosecution against his former spouse and to stay the matter in the absence of a hearing to determine if process should issue against Katalin.
[21] In able submissions, Mr. Adler, on behalf of Glegg, makes three main points. First, absolute immunity from any degree of Court supervision does not exist for the Crown. I agree. That is why Mr. Coppolino, for the Crown, remarked, on May 9th when the stay was entered, “[i]f there’s an error that’s being made in the Crown’s decision to intervene in the stated matter, there’s a forum that that appeal can be made or application can be made” (page 13 of the transcript). That is also why, as Justice Code explained a few years ago, there exists a “considerable body of case law…wherein private prosecutors challenged decisions by Crown counsel to intervene in a case and to either proceed with it or stay it”. Ahmadoun v. Ontario (Attorney General), 2012 ONSC 955, [2012] O.J. No. 639 (S.C.J.), at paragraph 13. Finally, that is why even the Crown appearing on the Application, Mr. D’Iorio, concedes that there exists in law a basis for Glegg to challenge what happened at Court on May 9th.
[22] Second, it is argued by Mr. Adler that the decision of the Court of Appeal for Ontario in R. v. McHale, 2010 ONCA 361, relied upon by the Crown, is obiter. Whether it is or it is not, I agree with the Applicant that the Court of Appeal did not specifically deal with the limits on the Crown’s discretion to stay a private prosecution before the commencement of a formal inquiry into the issuance of process against the accused. Rather, the Court of Appeal dismissed the Crown’s appeal from the decision of Justice Marshall of the Superior Court of Justice to direct that a justice of the peace conduct a pre-enquete hearing because the Court of Appeal held that the timing of the withdrawal (not a stay) of the charges by the Crown was premature. Thus, I would not dismiss Glegg’s Application under Rule 34.02 solely on the authority of McHale, supra.
[23] I would dismiss it because I am in complete agreement with the thoughts of Justice Code in Ahmadoun, supra, whose (i) correct observation of how fundamental to core prosecutorial powers that a Crown’s decision to direct a stay of proceedings is, and (ii) whose careful analysis of the jurisprudence to date, and (iii) whose clear statement of the test for this Court to interfere with the Crown’s exercise of discretion, are all beyond reproach.
[24] What is that test? It is not on a standard of reasonableness but rather on a standard of flagrant impropriety. Ahmadoun, supra, at paragraph 13.
[25] Here, there was nothing grossly improper about the Crown intervening in and staying the private prosecution initiated by Glegg. The Crown took the time to review the materials supplied by the Applicant. The Crown took the time to meet with and communicate with Mr. Adler. The Crown put extensive reasons on the record at Court on May 9th as to why it was directing a stay: notwithstanding the Applicant’s genuine hope otherwise, it was likely that the child (just 18 years old) would have had to provide evidence, which could have caused trauma to her; and the Court of Appeal for Ontario had already held in the family litigation that Glegg, not the child’s mother, was the reason why Olivia decided on her own to leave Ontario; and a great deal of time had passed since the alleged offence dates; and there had already been an unsuccessful attempt by Glegg to have his former spouse found in contempt of Court. In short, there was no reasonable prospect of conviction on any of the three counts, and further, it was not in the public interest to pursue the prosecution. In the words of the Crown, at page 9 of the transcript from May 9th, “[h]aving exhausted the civil process to now involve the criminal process cannot be permitted to re-litigate many of these issues…”
[26] On the record before me, there is no reasonable prospect that a judge could find that the Crown’s decision to intervene in this private prosecution and to direct a stay of it amounts to anything approaching flagrant impropriety. Thus, a full hearing is unnecessary. Nothing would be gained by that use of resources.
[27] Third and finally, Mr. Adler submits that a hearing of Glegg’s Application is required to fully explore section 11(d) of the Crown Attorneys Act, R.S.O. 1990, c. C.49, as amended:
- The Crown Attorney shall aid in the local administration of justice and perform the duties that are assigned to Crown Attorneys under the laws in force in Ontario, and, without restricting the generality of the foregoing, every Crown Attorney shall,
(d) watch over cases conducted by private prosecutors and, without unnecessarily interfering with private individuals who wish in such cases to prosecute, assume wholly the conduct of the case where justice towards the accused seems to demand his or her interposition;
[28] In my view, there is no reasonable prospect that a judge could find that the Crown unnecessarily interfered with Glegg’s private prosecution. In fact, once the Crown determined that it was neither in the public interest to pursue the prosecution nor was there a reasonable prospect of conviction on any of the three counts, which determination could not possibly be said to have been made arbitrarily, unfairly or without foundation, the Crown had a duty to intervene.
[29] Further, in my opinion, there is no reasonable prospect that a judge could find that the Crown’s decision to intervene and to direct a stay was not the result of the Crown’s concern for justice towards the accused, Katalin. Mr. Adler argues that the transcript shows too much attention paid by the Crown to the interests of Olivia, rather than those of Glegg and Katalin. I disagree. The Crown expressly acknowledged on the record Glegg’s genuine belief that he was acting in the best interests of his daughter and his “understandable” subjectively-held views (page 8 of the transcript), but the Crown also determined that this was an obvious attempt by Glegg to unreasonably protract the litigation even further, though with a change of venue from the family court to the criminal one. That determination was not clouded by anything close to flagrant impropriety.
[30] I do not share the belief of the Applicant that this Court should embark upon a full hearing of the Application in order to delve into the meaning and parameters of section 11(d). That section must be read in conjunction with the case law, including Ahmadoun, supra. In short, an unnecessary interference with a private prosecution must be taken as one where the Crown’s assumption of the case can be characterized as having been grossly or flagrantly improper. That finding could be found where the interference was done without even reviewing the materials supplied by the private prosecutor, or where the interference was made without any consultation with the informant or his legal representative, or where the interference was done for an ulterior purpose unconnected to the interests of justice, and so on. These are just examples, and there is no attempt here to be exhaustive. None of these examples applies here.
[31] The point is that the Crown’s decision is not immune from judicial review. There is, however, a limit to that review. There is a well-settled test to be applied. On the record before me, taking Glegg’s case at its highest, and being careful to use some restraint in disposing of something without a full hearing, I am satisfied on balance that there is no reasonable prospect of success in Glegg’s Application meeting that test.
VI. CONCLUSION
[32] For all of the foregoing reasons, there being no reasonable prospect that Glegg’s Application could succeed, it is dismissed at this stage under Rule 34.02.
Conlan J.
Released: June 20, 2018
COURT FILE NO.: 78/18
DATE: 2018 06 20
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Respondent
– and –
Robert Glegg
Applicant
REASONS FOR Decision
Conlan J.
Released: June 20, 2018