Court File and Parties

COURT FILE NO.: 20-G20032 DATE: 2022-03-23 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HER MAJESTY THE QUEEN AND CHRISTOPHER-MAIK BERNIER

BEFORE: The Honourable Mr. Justice Pierre E. Roger

COUNSEL: Jonathan Thompson, Counsel for the Crown Christopher-Maik Bernier, Self-Represented

HEARD: February 7, 8, 9, 10, 14, and 15, 2022, by video conferencing

Reasons for Decision

Roger J.

[1] The accused brought several applications in anticipation of his trial which is scheduled for November 2022. I will address his applications in the order that they were argued. Still pending are the accused’s application to quash the search warrant and production orders, and the Crown’s application dealing with post-offence records admissibility. A lost evidence application might be heard, but most likely at the end of trial.

[2] The accused is charged with forgery, contrary to ss. 367 and 368(1)(a) of the Criminal Code, R.S.C., 1985, c. C-46. Count one alleges that between March 22 and October 1, 2018, the accused did knowingly make a false document, to wit fabricated meeting minutes, used incorrect names in a corporate document, and made a fraudulent notice, with intent that it be acted upon as genuine. Count two alleges that during those same dates, the accused knowingly used such a forged document as if it were genuine. It is essentially alleged that the accused attempted to mislead Corporations Canada over the course of an investigation into his business practices.

[3] Briefly, the accused was investigated for tax fraud. During this investigation, his house was searched under a search warrant on March 21, 2018, with respect to a tax investigation into the activities of a company called Maple Names Inc (“Maple Names”). Mr. Barski was the Canada Revenue Agency (“CRA”) criminal investigator team leader for the search and the affiant for the warrant. Another CRA investigator, Mr. McCurry, was on site during the search. It was discovered on July 13, 2018, that within days of his house being searched, the name of these two investigating officers appeared in corporate documents of Maple Names. A form was filed with Corporations Canada on March 22, 2018, on behalf of Maple Names, indicating that Mr. Barski and Mr. McCurry were directors of the corporation since April 2015, along with a Mr. Harry Linn. Corporations Canada followed up by letter on August 1, 2018, requesting from Maple Names minutes of the relevant shareholders meeting and copies of relevant resolutions. By letter dated August 20, 2018, Corporations Canada received a letter apparently signed by Harry Linn, the purported chair of the board of directors of Maple Names. That letter enclosed a notarized copy of the minutes of a July 26, 2014 meeting of Maple Names that purported to elect Mr. Barski as chief financial officer and Mr. McCurry as chief operational officer. It also enclosed minutes of this meeting signed by Mr. Barski when both were apparently elected directors of Maple Names. As well, on November 5, 2018, an official from CRA notified the Royal Canadian Mounted Police (“RCMP”) that a fraudulent notice had been published on Maple Names’ website. On November 29, 2018, the CRA discovered a similar notice on the website of another company allegedly controlled by the accused, American Domain Names LLC. It is alleged that the above documents were prepared by the accused, and that they are forgeries. It is alleged that they were used by the accused submitting them to Corporations Canada and by publishing the notice on two websites.

Application to Quash the Indictment

[4] The federal Crown, through the Attorney General of Canada, was also separately pursuing tax and Canada Business Corporations Act, R.S.C., 1985, c. C-44, allegations against the accused, however it is now only separately pursuing the tax allegations.

[5] The alleged events apparently occurred between March 22 and October 1, 2018. The information relevant to these charges was sworn on September 28, 2020. By letter dated January 14, 2021, almost four months after the information was sworn, the Chief Federal Prosecutor with the Public Prosecution Service of Canada for the National Capital Region wrote to the Ottawa Crown Attorney asking for a letter authorizing the federal Crown to proceed with these Criminal Code charges against the accused as agent for the Attorney General of Ontario. The Ottawa Crown Attorney granted the authorization and signed the letter on January 28, 2021. On April 29, 2021, the accused elected a trial by judge and jury, and the accused was, by then, not eligible to elect a preliminary inquiry before trial. On May 5, 2021, the federal Crown filed an indictment as agent for the Attorney General of Ontario.

[6] The accused argues that the delegation from the Attorney General of Ontario to the Attorney General of Canada was unlawful. He argues that the Ottawa Crown Attorney had no power to delegate any powers to another person. He also argues that the Ottawa Crown Attorney was not provided with any status reports on the prosecution and that any such appointment was not confirmed by an Order-in-Council. He argues that s. 2 of the Criminal Code requires that such a prosecution be by the Attorney General of Ontario, not the Attorney General of Canada. He also argues that an indictment cannot be preferred in any court without a written order by a judge of that court unless the prosecution is conducted by the Attorney General at the time of the indictment and the compelling of process. He argues that the letter was only endorsed on January 28, 2021, several months after the information was laid and this matter had proceeded, which he argues makes it a nullity, and he relies on s. 576 of the Criminal Code. He argues that the decision in R. v. Luz (1991), 5 O.R. (3d) 52 (Ont. H.C.), is not applicable to the facts of this case, that any such delegation is limited to summary conviction offenses, that the Attorney General was prohibited from re-delegating its authority, and that the letter is either a forgery or was obtained by misrepresentation that the proceeding was a summary conviction proceeding.

[7] The accused has not led any sufficient evidence to displace the presumption that the information was properly before the court. There is a delay between the time that the information was sworn on September 28, 2020, and the time that the matter was formally delegated on January 28, 2021, but the federal Crown proceeded with the prosecution throughout in anticipation of formal delegation and the Attorney General of Ontario clearly acquiesced to the federal Crown prosecuting the matter as its agent when the Ottawa Crown Attorney signed the authorization.

[8] The arguments of the accused on this point are otherwise all contradicted by the authorities.

[9] R. v. Luz involved an indictable offence. Luz, and cases that follow, clearly establish that the Attorney General of Ontario can delegate its authority to the federal Crown as its agent in the manner that was done in this case: see also R. v. DiGiuseppe, [2003] O.J. No. 5630 (Ont. C.A.), at para. 16; R. v. Root, 2010 ONSC 3872, 214 C.R.R. (2d) 276, at para. 30; R. v. Smith, 2018 ONSC 1614, 359 C.C.C. (3d) 550, at para. 19; R. v. Chen, 2006 MBCA 56, 209 C.C.C. (3d) 534, at paras. 11-12; and Gentles v. Ontario (Attorney General) (1996), 39 C.R.R. (2d) 319 (Ont. Gen. Div.), at para. 46.

[10] The accused’s application to quash the indictment on the above grounds is therefore dismissed.

Application to Change the Venue from Ottawa to Perth

[11] The accused argues that justice requires that he be tried in Perth rather than in Ottawa. He argues that there is no real and substantial connection to Ottawa because he resides in Lanark, such that the proceedings should have been commenced in Perth. He argues that he will suffer undue hardship if the trial is held in Ottawa and that the ends of justice require that the matter be transferred to Perth.

[12] In his affidavit and during his cross-examination, the accused points out that he, and the lawyer that he occasionally consults, live closer to Perth than to Ottawa. He argues that a trial in Ottawa will be more difficult for him. He states that the extra travel time will be particularly difficult for him because of a hip fracture that he sustained in a 2020 car accident. He argues that the additional travel time will occasion him to be more tired, which will reduce his focus and concentration thereby impacting his ability to defend himself and to have a fair trial. The accused provided no medical evidence in support of his contentions. The accused lives about 27 minutes from the Perth courthouse and about 75 minutes from the Ottawa courthouse. He has access to a car, and he is able to drive. Travelling to Perth would be easier for him but he provided no convincing evidence that he could not travel to Ottawa for the trial of this matter. He also provided no evidence as to whether he could reside with friends or family closer to the Ottawa courthouse during the trial or for portions of the trial of this matter.

[13] There is a presumption that a trial will take place in the venue where the alleged crime took place: see R. v. Suzack (2000), 141 C.C.C. (3d) 449 (Ont. C.A.), at para. 30; R. v. Davis, 2018 ONSC 4630, at para. 26. This originates from the long recognized common law principle that an accused should stand trial in the locality where the alleged offence occurred. However, this presumption is not a fixed rule because sometimes the location of the offence is not clear, for example offenses involving more than one location: see Davis, at paras. 27, 31. Nonetheless, there must be some connection or sufficient other reason supporting the Crown’s decision to commence a matter in a particular location. Otherwise, the accused can bring an application under s. 599 of the Criminal Code.

[14] Section 599(1)(a) of the Criminal Code provides that a court may order the trial to be held in a territorial division in the same province other than that in which the offence would otherwise be tried if it appears expedient to the ends of justice, including (i) to promote a fair and efficient trial, and (ii) to ensure the safety and security of the victim or witness, or to protect their interests and those of society.

[15] In this case, the alleged crime took place either partially in Lanark where the accused resides and allegedly prepared the forged documents and in Ottawa where Corporations Canada received the forged documents, or, alternatively, the crime took place entirely in Ottawa where the forged documents were used when they were received by Corporations Canada. In either case, Ottawa has some connection. The accused’s refusal during his cross-examination to admit that he knows that Corporations Canada was headquartered in Ottawa was not credible, and I take judicial notice that Corporations Canada was located in Ottawa. Whether the crime occurred in part or entirely in Ottawa, Ottawa is part of the place where the alleged crime occurred. Consequently, the presumption outlined above is applicable and the onus is on the accused to show that the venue should be changed to Perth because it would be expedient to the ends of justice.

[16] I have verified with my Regional Senior Judge and with the Local Administrative Judge responsible for Perth that it will be possible to conduct this trial either in Ottawa or in Perth at its scheduled time; both venues should be able to accommodate the trial assuming measures related to Covid-19 do not prevent it.

[17] When I consider the evidence, I find that the accused has not shown that changing the venue from Ottawa to Perth would be expedient to the ends of justice, as his evidence and arguments only show that it would be more convenient or less difficult for him to have the trial in Perth, not that it would promote a more fair or efficient trial. The evidence of the accused does not establish undue hardship. It does not establish that he cannot travel to Ottawa. It does not establish that he cannot find lodging with friends or family nearer to or in Ottawa. It does not establish that he is unable to have a fair or efficient trial in Ottawa or that having the trial in Perth would promote a fair and efficient trial. While the evidence establishes that it would be more convenient for the accused to be tried in Perth, that is not sufficient to meet the applicable test. The difficulties raised by the accused, if they occur, can be accommodated by trial management measures. The accused has therefore not met his onus.

[18] The accused’s application to change the venue from Ottawa to Perth is therefore dismissed.

Application for Particulars

[19] Section 587(1) of the Criminal Code provides that a court may, where it is satisfied that it is necessary for a fair trial, order the prosecutor to furnish particulars. As indicated by the Court of Appeal in Regina v. Govedarov, Popovic and Askov (1974), 3 O.R. (2d) 23 (C.A.), at p. 55, the function of particulars is to give further information to the accused of that which it is intended to prove against him, so that he or she, may have a fair trial but, on the other hand, not to fetter the prosecution in the conduct of its case.

[20] In this case, there are two counts on the indictment before the court. Both relate to the period between March 22 and October 1, 2018. Count one alleges that during this period the accused, at the City of Ottawa and elsewhere in the province of Ontario, did knowingly make a false document to wit fabricated meeting minutes, used incorrect names in a corporate document and made a fraudulent notice, with intent that it be acted upon as genuine and did hereby commit forgery contrary to s. 367 of the Criminal Code. Count two alleges that during this period the accused did knowingly use a forged document to wit fabricated meeting minutes, used incorrect names in a corporate document and made a fraudulent notice, as if it were genuine, contrary to s. 368(1)(a) of the Criminal Code.

[21] The accused seeks detailed particulars, like what might occur during a civil examination for discovery, including the exact date and time that counts one and two occurred, whether they occurred continuously or repeatedly, exactly where they occurred, whether they occurred on unceded territory of the state of Algonquin people or other indigenous state, and whether the documents were original or electronic copies.

[22] The accused has been provided extensive and voluminous disclosure by the Crown. It was clear during the arguments of these applications that the accused has a good understanding of the allegations made against him.

[23] The accused is not entitled to the disclosure that he seeks because the level of specificity that he requires will not assist him in defending himself and will unduly fetter the Crown in its conduct of the case.

[24] Nonetheless, to further assist the accused to understand what is alleged against him and to ensure that he has a fair trial, I order that the following particulars be provided to the accused by the Crown pursuant to s. 587(1) of the Code by April 25, 2022, and that same be entered in the record as per s. 587(3):

• the alleged (a) fabricated meeting minutes, (b) incorrect names in a corporate document, and (c) fraudulent notice shall be disclosed to the accused each marked respectively as “Document A”, “Document B”, and “Document C”; and
• how the accused allegedly used each of Document A, B, and C and, to the extent that it is known by the Crown, when the accused allegedly used each of document A, B, and C shall be provided to the accused.

[25] Excepting what is ordered above, the accused’s application for particulars is otherwise dismissed.

Application for Further Disclosure, Including a Laporte inventory

[26] The accused is highly suspicious of the Crown and suspects that the Crown has not met its disclosure obligations. He wishes that I review the Crown’s relevant materials to ensure that appropriate disclosure has been made.

[27] In his affidavit, the accused provides a narrative of events that does not support his arguments. He believes that the Crown is conspiring against him and that it has fabricated evidence, but he has no evidence to support these contentions. He voices his many concerns but has no evidence other than his subjective worries. He explains that a tape recording of a meeting between himself and the investigators is missing but he provides no particulars explaining how this is relevant or prejudicial. He claims that privilege has been waived by the Crown because of the involvement of the Crown’s paralegal; this is not legally tenable. He claims that the Crown and investigative officers working together is evidence of a conspiracy to prosecute a known innocent person when investigative officers and the Crown working together is a normal part of any criminal prosecution. That some derogatory statements about him were made during the investigation is unfortunate, but this is not evidence of a conspiracy nor is it evidence that the Crown is not respecting its ongoing disclosure obligations.

[28] One point is however surprising: the Crown has disclosed no investigative notes from January 1, 2019, or thereafter. One would expect some investigative efforts, notes and related materials to have been generated up to the information being sworn on September 28, 2020, and possibly since that date, and that some of them would potentially be relevant and producible. I will therefore order the following:

• Within the next 20 days, the Crown shall write to all investigative officers involved in this matter requesting that each review his or her notes from January 1, 2019, to date and produce to the Crown any notes and materials relating to this matter that they have not previously produced to the Crown. The Crown shall then, by no later than June 30, 2022, disclose to the accused any outstanding relevant notes and material required to be disclosed.

[29] In addition, in certain circumstances including a case where the accused is self-represented and questions the sufficiency of the disclosure made by the Crown, having a disclosure inventory seems to be an efficient management tool for all involved. Indeed, it is difficult for the parties to effectively discuss disclosure issues and to efficiently adjudicate any debate about disclosure without one. For example, the Crown complains that the accused is not specifying which unproduced relevant documents he requires, yet how could he effectively do this without a list of the Crown’s documents and materials. This is particularly true in a case such as this where it is apparent that the Crown and the accused are not communicating in an efficient and cooperative manner or trying to find practical solutions.

[30] A Laporte list is a tool designed to facilitate the assessment and review of the Crown's decisions regarding the disclosure of materials in its possession: see R. v. Latimer, 2020 BCSC 697, at para. 75; R. v. Anderson, 2013 SKCA 92, 300 C.C.C. (3d) 296, at para. 97.

[31] The following is also therefore ordered:

• By June 30, 2022, the Crown shall prepare and disclose to the accused a list or inventory of all documents and material in its possession relating to this matter. The list shall be arranged in chronological order and shall be separated in three parts. In part one, the Crown shall list all relevant documents and material disclosed to the accused. In part two, the Crown shall list all documents and material relating to this matter that have not been disclosed to the accused with a brief, but fulsome, explanation justifying why they have not been disclosed; this shall include any document or material relating to this matter that is known to have been lost. In part three, the Crown shall list all potential witnesses and shall provide for each a copy of their will-say statement(s) or provide the cross-reference beside the name of each where in part one of the list such statement(s) is contained. The nature of each item shall be described with sufficient detail such that that the accused will be able to make a reasoned decision as to whether to seek disclosure or not.

[32] The accused’s request for the Crown to deliver an affidavit of documents in the form prescribed by the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, is dismissed as such a request is not supported by any applicable law. Similarly, the accused’s request that the Crown disclose copies of all emails between any employees of the Public Prosecutions Service of Canada, including specific persons listed at paragraph 48 of his factum, is dismissed as there is no evidence that these emails are relevant or that those emails which are relevant and not privileged have not already been disclosed or that they will not be disclosed in the list outlined above yet to be prepared by the Crown. With the list in hand, the accused and the court will be better positioned to assess whether anything else should be disclosed.

[33] Other than what is ordered above, the accused’s application for further disclosure is dismissed.

Application for Examination for Discovery of RCMP officers

[34] The accused argues that he was unfairly deprived of a preliminary inquiry because of the prosecution’s delay in commencing the proceedings, and that an examination for discovery would remedy this allowing him the opportunity to understand the Crown’s case against him prior to going to trial.

[35] However, the accused has provided no law in support of this request, and I am not aware of any.

[36] The accused’s application for an examination for discovery is therefore dismissed.

O’Connor Third-Party Records Application for the Financial, Medical, and Employment Records of Mr. Barski

[37] The accused seeks the records relating to the education, employment, finances, and medical history of Mr. Barski. More specifically, he seeks Mr. Barski’s educational records from age 18 to date, copies of his bank accounts and mortgage statements from 1990 to date, and his medical records, including those relating to any addiction issues. The accused argues that these documents are relevant to whether Mr. Barski forged or altered the documents seized at the residence of the accused.

[38] However, the accused provided no evidence in support of his stated fears and no evidence or particulars explaining how any of the documents sought might be relevant to his allegations. The accused does not name the source of his stated information and belief and makes unsupported allegations against Mr. Barski.

[39] The accused has therefore not established that the information sought is likely relevant to an issue at trial or to the competence of a witness to testify. Stage one of the required analysis on such an application has therefore not been made out: see R. v. O’Connor, [1995] 4 S.C.R. 411, at paras. 22, 24.

[40] Consequently, the accused’s third-party records application is dismissed.

Application for a Stay for Abuse of Process

[41] The accused argues that the charges against him should be stayed because of the conduct of the Crown and of the police.

[42] He contends that the Crown was not entitled to elect to proceed by indictment simply to avoid the limitation period otherwise applicable to summary conviction offences. In support of this argument, he relies on the federal Crown Deskbook. This provides that Crown counsel should generally not elect to proceed by indictment unless the particular circumstances of the offence did not come to light until shortly before or at some time after the limitation period expired, the accused contributed significantly to the delay, the investigative agency acted with due diligence but the investigation continued beyond the limitation period because of the complexity of the case, or because not proceeding would bring the administration of justice into disrepute. He argues that none of these are applicable to the circumstances of this case, and therefore, that proceeding by indictment only to avoid a limitation period constitutes an abuse of process.

[43] Furthermore, the accused is a permanent resident in Canada and alleges that he was about to apply for Canadian citizenship when he was charged. As a result of these charges, he cannot apply for citizenship until this proceeding has been disposed of because the applicable immigration legislation prohibits anyone charged with an indictable offence from applying. As well, if he is convicted, he may be deported because the maximum penalty of ten years creates an inadmissibility known as serious criminality under the Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 36(1).

[44] The accused also argues that the Crown acted unfairly when it provided an email containing settlement discussions to one of its investigative officers. In addition, he argues that he was arrested on July 24, 2018, when two officers entered his home and questioned him, and that this earlier date should start the Jordan clock under s. 11(b) of the Canadian Charter of Rights and Freedoms. He alleges that the officers recorded this meeting, and that this recording being lost prejudices his interests. He also alleges that the investigative officers made disparaging comments about him and his wife, showing their bias.

[45] He alleges as well that his wife was threatened by two RCMP officers on November 27, 2020, and that as a result, he sent a notice of trespass to the RCMP Ottawa office on November 29, 2020, forbidding them from attending on his property. He alleges that RCMP officers nonetheless repeatedly attended on his property, including on December 8, 2020, when officers rang the doorbell and walked around his property before leaving “a piece of paper purporting to be an arrest warrant”. The accused also alleges that on February 16 and 18, 2021, he was threatened by officers in his garage, and that officers attended on five other occasions in April and May 2021. He alleges that this was part of a harassment campaign designed to intimidate him and his family. However, during his cross-examination, the accused admitted that the officers were trying to deliver something, he said that he did not know what. He nonetheless admitted that some of these visits might have been to charge him with a breach of probation when he failed to attend for fingerprinting.

[46] The accused also argues, amongst his many other arguments, that an envelope containing solicitor-client privileged documents was seized when his house was searched, and that these have not yet been returned.

[47] Trial judges have a residual discretion to stay proceedings when compelling an accused to stand trial would violate fundamental principles of justice and the community’s sense of fair play and decency: see R. v. Jewitt, [1985] 2 S.C.R. 128, at p. 136-37. However, such a power should only be exercised in the clearest of cases. There must be no other apparent course of action available to cure the prejudice. The onus is on the accused to show that allowing the state to proceed would violate the community’s sense of fair play or decency, or that the trial would otherwise be an oppressive procedure: see R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at paras. 30-32.

[48] There are two recognized categories of abuse of process: (1) where state conduct compromises the fairness of an accused's trial (the "main" category); and (2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the "residual" category): see Babos, at para. 31, citing R. v. O'Connor, [1995] 4 S.C.R. 411, at para. 73.

[49] The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements, as explained at para. 32 in Babos:

(1) There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that "will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome" (Regan, at para. 54); (2) There must be no alternative remedy capable of redressing the prejudice; and (3) Where there is still uncertainty over whether a stay is warranted after steps 1) and 2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interest that society has in having a final decision on the merits" (ibid., at para. 57).

[50] In Babos, the Supreme Court reversed the stay granted by the trial judge despite the trial judge finding that there was an illegal search, that police had colluded for the purpose of misleading the court, and that the Crown attorney had threatened the accused with more charges if he did not plead guilty: see Babos, at para. 13. The court found that the conduct did not amount to abuse of process warranting a stay. The evidence tainted by police collusion could be excluded to negate prejudice, and the Crown attorney’s conduct, while improper, was something that could legally have been done under the Criminal Code —additionally, that Crown was no longer on the case at trial: see Babos, at paras. 57, 71. This confirms the high bar required to successfully establish abuse of process.

[51] In this case, the undisputed evidence of the accused raises concerns, but these concerns do not rise to the requisite level; this is not “the clearest of cases”. Nonetheless, I am not dismissing the accused’s application for a stay for abuse of process, and this question may be revisited during trial when all the evidence and the extent of prejudice can better be determined: see R. v. Johnson, 2007 ONCA 419, 225 O.A.C. 13, at para. 12.

[52] The Supreme Court of Canada addressed the impact of summary limitation periods on hybrid charges in R. v. Dudley, 2009 SCC 58, [2009] 3 S.C.R. 570, explaining the possible options when the prosecution of a hybrid offence runs afoul of the limitation period in s. 786(2) of the Code. The Supreme Court indicated that the Crown may proceed afresh by indictment, except where the court is satisfied that this would amount to an abuse of process. It indicates further that an abuse of process will only be established where the evidence demonstrates (i) improper Crown motive, or (ii) prejudice to the accused sufficient to violate the community’s sense of fair play and decency: see Dudley, at paras. 5, 44. A hybrid offence that can no longer be prosecuted summarily without the defendant’s consent may, nonetheless, absent abuse of process, be prosecuted by indictment, whether or not the Crown initially elected to proceed summarily: see Dudley, at para. 31.

[53] In Dudley, the appellant was charged with one count of fraud under $5,000 pursuant to s. 380(1)(b) and one count of uttering a forged document under s. 368(1)(b), allegedly occurring on May 31, 2004, and November 12, 2002, respectively. The information was sworn January 30, 2006, and was therefore statute barred: see Dudley, at para. 10. The accused moved to dismiss the charges as a “nullity”, while the Crown sought leave to “re-elect”. The trial judge agreed with the accused and dismissed the charges as a nullity. The Alberta Court of Appeal allowed the Crown’s appeal and stated that the statute-barred election did not afford the accused a defence to the charges, and that the Crown had a right to re-elect and proceed by indictment.

[54] The Supreme Court dismissed the accused’s appeal and provided the above framework. It was left to the Crown to determine whether to proceed afresh by indictment: see Dudley, at para. 55.

[55] Following the decision in Dudley, an abuse of process will not be found simply because the Crown elects to proceed by indictment on a hybrid offence after the summary limitation period has expired. To demonstrate an abuse of process, the accused must show that either (i) the evidence discloses an abuse of process arising from improper Crown motive, or (ii) there is resulting prejudice to the accused sufficient to violate the community’s sense of fair play and decency: see Dudley, at para. 44; see also R. v. MacKay, 2021 NSSC 33, 482 C.R.R. (2d) 1 at paras. 32-34.

[56] While the Public Prosecution Service of Canada Deskbook (2020) states at s. 3.10, p. 5, [1] that “[i]n some circumstances, the Crown's election may be impugned as an abuse of process if it appears that it was made solely to circumvent a limitation period”, this statement directly contradicts the guidance of the court in Dudley.

[57] However, that Deskbook does provide policy guidance on this issue, and suggests the Crown not proceed by indictment on hybrid offences save for in the circumstances listed on p. 5. The proceeding in this case goes against the policy guidance provided by the Deskbook as the circumstances of the offence came to light early on, the accused did not contribute significantly to the delay, it is not established that the investigative agency acted with due diligence, the case is not complex, and it is not established that not proceeding would bring the administration of justice into disrepute. Indeed, despite the schedule ordered at a pre-trial conference, the Crown chose not to file an affidavit on these applications and therefore no evidence or written submissions of the Crown addresses these points. Nonetheless, this policy guidance does not have force of law and these facts do not override the guidance provided by the Supreme Court.

[58] Indeed, the Deskbook and the accused rely on the decision in R. v. Boutilier (1995), 104 C.C.C. (3d) 327 (N.S. C.A.), in which the court found that the Crown re-election to avoid the summary limitation period was an abuse of process in and of itself. However, the court in Dudley, at para. 40-41, acknowledged the Boutilier decision but suggested that it “d[id] not ask the right question”. Similarly, the court in MacKay, at para. 28, footnotes 11 and 12, distinguishes the decision in Boutilier on both fact and law, as the wording in s. 786 had since changed and because the Crown in Boutilier sought to re-elect “on the eve of trial.”: see MacKay, at para 28, footnote 12. As such, Boutilier has limited precedential value.

[59] The decision in MacKay conducts a thorough review of caselaw regarding abuse of process in the context of Crown re-election. In MacKay, the accused was charged with failing to have care and control of their motor vehicle by reason of intoxication. The incident occurred on November 22, 2018, and the information was sworn on February 19, 2020, a 15-month delay: see MacKay, at para. 6. The accused asked for the charges to be stayed for abuse of process when the Crown proceeded by indictment, despite an earlier indication from the Crown it would be willing to proceed summarily.

[60] The court in MacKay found that the accused was essentially arguing that courts must adopt the approach of, “once a summary conviction offence - always a summary conviction offence” and rejected that argument: see para. 66. The court explained that such a position would allow defendants charged with hybrid offences to “demand that [the Crown] reveal and explain the ‘public interest’ factors that support its decision to proceed on indictable process and why it is not an abuse of prosecutorial discretion.”: at para. 67. The court also found this position would negate the express Parliamentary intent to allow an accused to “consent” to proceed by summary conviction as contemplated in s. 786(2)(c): at para. 68. In this case, I understand that this was offered to the accused, but that he refused to consent.

[61] In reaching this conclusion, Rosinski J. conducted a thorough review of abuse of process caselaw, identifying the following points:

• Dudley recognized two categories of abuse of process relating to Crown election of hybrid offences: (i) the “main category”, where the evidence discloses an abuse of process arising from improper Crown motive, or (ii) the “residual category”, where that resulting prejudice to the accused sufficient to violate the community’s sense of fair play and decency: see Dudley, at para. 44; MacKay, at para. 33.
• A permanent judicial stay of proceedings is the remedy for a finding of abuse of process and is a serious remedy that should only be considered in the "clearest of cases": see MacKay, at para. 34.
• In the first, “main” category, the following have been noted as establishing improper Crown motive: (i) Where the criminal justice process is being used to enforce a civil claim; (ii) Where the Crown acts with deliberate intention of prejudicing the accused's ability to make full answer and defence; (iii) Where the Crown has acted to circumvent an adverse ruling, otherwise improve on an unfavourable result or cure some procedural defect; (iv) Where the Crown has breached an undertaking to the accused who has acted in reliance upon it; and (v) In situations of entrapment: see R. v. Cole, 2000 NSCA 42, 143 C.C.C. (3d) 417, at para. 48, citing Donna C. Morgan, Controlling Prosecutorial Powers — Judicial Review, Abuse of Process and Section 7 of The Charter (1986-87), 29 Crim. L.Q. 15, at pp. 39-43; MacKay, at para 35.
• The second, or “residual” category was described by L'Heureux-Dubé J. in O’Connor, at para. 43, as not relating to conduct affecting the fairness of the trial, but rather it “addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process.” Courts have noted that this will be a rare finding: see Canada (Minister of Citizenship & Immigration) v. Tobiass (1997), 118 C.C.C. (3d) 443 (S.C.C.), at para. 89; R. v. Regan (1999), 137 C.C.C. (3d) 449 (N.S. C.A.), at paras. 108-10.
• In the context of hybrid election, abuse of process is inextricably intertwined with prosecutorial discretion: see MacKay, at para. 44; R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566, at para. 30.
• Courts must be cautious with the review of prosecutorial discretion. As explained by L'Heureux-Dubé J. in R. v. Power, [1994] 1 S.C.R. 601, at pp. 615-16, the remedy of a stay of proceedings is warranted only in the “clearest of cases”, meaning “conduct which shocks the conscience of the community and is so detrimental to the proper administration of justice that it warrants judicial intervention,” and “courts should be careful before they attempt to ‘second-guess’ the prosecutor's motives when he or she makes a decision.” It will only be where “there is conspicuous evidence of improper motives or of bad faith or of an act so wrong that it violates the conscience of the community” that courts may intervene to prevent an abuse of process, and this will be “extremely rare”.
• The decision to continue a prosecution after the summary limitation has passed is nuanced, and the ultimate question the Attorney General must ask is whether the public interest is served by the prosecution of the case: see MacKay, at para. 48.
• The burden lies with the accused to establish the alleged abuse of process: see MacKay, at para. 67.

[62] On my view, considering the evidence, the decision to re-elect in this case, although contrary to the policy guidance provided by the Crown’s Deskbook, does not trigger the high threshold necessary to show abuse of process as indicated in the above cases.

[63] In addition, from the affidavit of the accused and from his cross-examination, it appears more probable that the RCMP officers who attended at his home did so to serve him. The police have an “implied license” to knock on front door of an accused’s residence when attempting to serve a summons, as provided by s. 509(2) of the Criminal Code.

[64] The “implied licence” principle was discussed in R. v. Mulligan (2000), 142 C.C.C. (3d) 14 (Ont. C.A.), citing R. v. Tricker (1995), 96 C.C.C. (3d) 198 (Ont. C.A.), leave to appeal refused (1996), [1995] S.C.C.A. No. 87. This principle provides that the occupier of a dwelling gives implied licence to any member of the public, including a police officer, on legitimate business to come on to the property, but the implied licence ends at the door of the dwelling: see Mulligan, at para. 23. The implied licence to knock extends only to activities for the purpose of facilitating communication with the occupant: see R. v. Evans, [1996] 1 S.C.R. 8, at pp. 15-16. The implied licence can also be “rebutted by a clear expression of intent”: Mulligan, at para. 23, citing Evans, at para. 30. Here, on November 29, 2020, the accused sent a notice of trespass to the RCMP prohibiting them from attending on his property.

[65] I was not provided with cases on this topic and could not find any that addressed this situation. However, it seems logical that an implied licence would be rebutted by a notice of trespass. The Crown provided no evidence about the notice of trespass. Consequently, I assume that it was received by the RCMP in early December 2020.

[66] Considering that the accused sent to the RCMP a notice of trespass thereby rebutting the implied licence outlined above, some of the visits at the accused’s home by the RCMP probably constituted non-urgent police trespass. Furthermore, as I was provided no authority to justify this and as I could find no such authority, on none of those visits were the RCMP authorized to walk around the accused’s property or to look in any of the windows.

[67] Although not condoning such conduct by the police, I note that no evidence was obtained during any of these many visits at the accused’s property by the RCMP, and that none of these will impact trial fairness. Despite that it was probably improper and likely intimidating, these many attendances by the RCMP at the accused’s residence, either considered together or cumulatively with the rest of the evidence, are not sufficient to establish an abuse of process. Indeed, this is not the clearest of cases where proceeding to trial would violate fundamental principles of justice that underlie the community’s sense of fair play, as the RCMP nonetheless had a legitimate purpose in attending at the accused’s property and no evidence was obtained or compromised by these visits. There was no “subsidiary purpose” to the officers’ attendance at the accused’s home: see R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 127, citing Evans.

[68] The delay in charging the accused is also not sufficient to warrant a stay of proceedings. By comparison, it is not out of line with the cases outlined above. Contrary to what is alleged by the accused, the right to be tried within a reasonable time starts upon being charged with an offence: see R. v. MacIsaac, 2018 ONCA 650, 141 O.R. (3d) 721, at para. 31. The laying of an information starts the clock: see R. v. Kalanj, [1989] 1 S.C.R. 1594, at p. 1607. Moreover, the evidence of the accused relating to pre-charge delay is not sufficient to establish prejudice that could warrant a stay of proceedings. His evidence in this regard is too vague, with no sufficient particulars.

[69] The same is applicable to the many other arguments raised by the accused. They are not individually or cumulatively sufficient to reach the high threshold required to establish a stay of proceedings for abuse of process. As an example, for the alleged breach of solicitor-client privilege, I have no evidence by which I can assess the prejudice. Similarly, potential immigration consequences can be addressed at the time of sentencing, if we proceed to sentencing. A stay for abuse of process is a remedy of last resort reserved for the clearest of cases.

[70] The accused’s application for a stay of proceedings for abuse of process is therefore not granted. It may be revisited later depending on the evidence given at trial.

Released: March 23, 2022 Justice Pierre E. Roger