COURT FILE NO.: CR-21-70000303-0000

DATE: 20220517

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JAMES NOSEWORTHY

N. Bailey, for the Crown

C. Hicks, for Mr. Noseworthy

HEARD: 2 May 2022

S.A.Q. AKHTAR J.

FACTUAL BACKGROUND AND OVERVIEW

Background Facts

[1] The applicant, James Noseworthy stands charged with second degree murder of Dalibor Dolic who was found deceased at his home on 22 December 2019.

[2] Mr. Dolic had not been seen for a period of approximately one week. His absence prompted a friend to contact police who entered the deceased’s apartment and found him laying dead in his bathroom. Police located a mobile phone in the toilet bowl and a bottle of peroxide on the ledge of the bathtub. When the Forensic Investigation Service examined the scene, they found blood in the area of the bathroom sink and on a sponge inside the sink.

[3] The deceased was a known drug dealer who conducted transactions from the apartment. A post-mortem examination revealed six stab wounds to his chest and abdomen as well additional injuries to his left forearm and right hand.

[4] The applicant was identified as a suspect through video surveillance, mobile phone records, and a DNA profile found on the bloody sponge in the deceased’s bathroom. He was arrested on 14 July 2020 and charged with the deceased’s murder.

[5] On 8 April 2021, the Crown preferred a direct indictment in the Superior Court of Justice.

[6] A three day discovery of three civilian witnesses was scheduled for 13-15 December 2021. The parties disagree on what happened at this hearing. Mr. Hicks, on behalf of the applicant, submits that he requested discovery of the officer involved in the search of the deceased’s apartment and other witnesses but the Crown declined to make them available. The result was that only one witness was examined at the hearing.

[7] Ms. Bailey, Crown counsel on this motion, disagrees: there was no refusal regarding witnesses requested by the defence. She states that at a judicial pre-trial conducted with Forestell J. the Crown offered to make three civilian witnesses available for discovery. Defence counsel requested more and notified the Crown and Forestell J. of the possibility of bringing an application to compel their discovery.

[8] Ms. Bailey says that no such application was brought and the defence never produced a list of additional witnesses that they wished to examine.

[9] Ms. Bailey also disagrees with the defence contention that just one discovery witness was made available for cross-examination. She says that three witnesses were made available and only two were examined. The remaining witness, however, recognised the applicant’s counsel as he had acted for him on a prior occasion. Ms. Bailey says that the defence made no arrangements to have alternative counsel conduct the cross-examination.

Positions of the Parties

[10] Mr. Hicks submits that s. 577(a) of the Criminal Code violates s. 7 of the Canadian Charter of Rights and Freedoms and cannot be saved under s. 1. He claims that the section allows for the “arbitrary, capricious, and unfair exercise of Crown discretion to deny certain accused persons access” to the preliminary inquiry procedure. Most specifically, Mr. Hicks argues that the ability of the Crown to prefer a direct indictment without giving reasons gives rise to an unconstitutional unfairness that cannot be remedied.

[11] In response, Ms. Bailey contends that the applicant has failed to demonstrate there is a constitutionally protected interest at stake because there is no constitutional right to a preliminary inquiry.

[12] Ms. Bailey also argues that the applicant has failed to raise a new legal issue required to overcome the principle of stare decisis; failed to show why the abuse of process doctrine should be abandoned; and has advanced a “flawed” s. 1 analysis.

LEGAL PRINCIPLES

[13] Section 577(a) of the Criminal Code reads as follows:

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

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

[14] As a starting point in the analysis of the law, both parties correctly agree there is no constitutional right to a preliminary inquiry: R. v. S.J.L., 2009 SCC 14, [2009] 1 S.C.R. 426, at paras. 21-23.

[15] Moreover, the jurisprudence has affirmed the Crown’s power to prefer a direct indictment as being constitutional.

[16] In R. v. Arviv (1985), 1985 CanLII 161 (ON CA), 51 O.R. (2d) 551 (Ont. C.A.), leave to appeal to S.C.C. refused, the court made clear its view was that it accepted that “the preferment of a direct indictment by the Attorney-General pursuant to s. 507(3) of the Code [the predecessor to s. 577(a)] does not per se contravene the Charter”.

[17] In R. v. Ertel (1987), 1987 CanLII 183 (ON CA), 35 C.C.C. (3d) 398 (Ont. C.A.), leave to appeal refused, [1987] S.C.C.A. No. 354, the court again rejected a s. 7 Charter challenge to the Criminal Code power of the Crown to prefer a direct indictment, then contained in s. 507(3). At p. 415, it stated:

In my view the Attorney General's decision to prefer an indictment after the discharge of the accused at the preliminary hearing does not result in a deprivation of fundamental justice. The accused retains his or her presumption of innocence, the right to make full answer and defence with all the procedural safeguards available and the burden remains on the Crown to establish its case beyond a reasonable doubt.

In my opinion, the power of the Attorney General to prefer an indictment is in accord with the principles of fundamental justice and forms part of the large arsenal of discretionary powers that the chief law enforcement officers must possess in order to effectively discharge their high constitutional duties. In the exercise of these discretionary powers the Attorney General is accountable to Parliament or the legislature and the exercise of the power may be reviewed by a court of competent jurisdiction if it results in a denial or infringement of a constitutionally protected right. Section 507(3) does not violate s. 7 of the Charter unless recourse to it has the effect of denying or infringing a constitutionally protected right.

[18] Ertel was cited with approval in S.J.L. where the Court, at para. 21, held that a recognized principle of fundamental justice “has no bearing on the right to a preliminary inquiry. That is not the stage at which the guilt of the accused or the appropriate sanction is determined. Dispensing with the screening process therefore does not result in a deprivation of fundamental justice, since the accused continues to be presumed innocent and retains the right to make full answer and defence”.

[19] It should be noted that other courts had reached the same conclusion prior to S.J.L. : R. v. Charlie (1998), 1998 CanLII 4145 (BC CA), 126 C.C.C. (3d) 513 (B.C.C.A.); R. v. Guimond (2003), 2003 CanLII 75204 (QC CA), 177 C.C.C. (3d) 315 (Que. C.A.); R. v. Sterling (1993), 1993 CanLII 9146 (SK CA), 84 C.C.C. (3d) 65 (Sask. C.A.); R. v. Stolar (1983), 1983 CanLII 3479 (MB CA), 4 C.C.C. (3d) 333 (Man. C.A.).

THE ISSUES

Should this Court Revisit the Issue of Constitutionality?

[20] In Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 42, the Court set out the test for revisiting earlier binding precedents which was permissible if:

1. the Charter argument now advanced was not raised in the earlier case;

2. new legal issues are raised as a consequence of significant developments in the law; or

3. there is a change in circumstances or evidence that fundamentally shifts the parameters of the debate.

[21] In light of the formidable jurisprudence cited in previous paragraphs, the issue of the preferment of a direct indictment under s. 577(a) of the Code seems well settled as a constitutionally sound provision.

[22] Mr. Hicks, however, says that recent case law has changed that position.

[23] It is well established that an exercise of prosecutorial discretion is only reviewable by means of abuse of process: R. v. Power, 1994 CanLII 126 (SCC), [1994] 1 S.C.R. 601, at pp. 616, 623; R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 36.

[24] Mr. Hicks acknowledges that this remedy also applies to the preferment of a direct indictment: Ertel, at p. 414; R. v. Hersi, 2014 ONSC 1211, at paras. 21-23.

[25] However, he points to the post-Ertel/S.L.J. decision of R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 95, for the proposition that the Court has since recognised that “the constitutionality of a statutory provision [cannot] rest on an expectation that the Crown will act properly”.

[26] Accordingly, he relies on comments made in Nur which appear to categorise an abuse of process challenge to the Crown’s exercise of discretion to elect mode of trial for hybrid offences as “illusory”. Mr. Hicks also argues that the Supreme Court of Canada noted that establishing an abuse of process is a “notoriously high bar” and requiring recourse to it in the context of Crown discretion “would create a situation where the exercise of the prosecutor’s discretion is effectively immune from meaningful review”: at para. 94.

[27] Taking these comments into consideration, Mr. Hicks argues that an abuse of process remedy is equally “illusory” when seeking to attack the Crown’s decision to prefer a direct indictment. He says that the extremely high threshold level required to mount an abuse of process motion would, as described in Nur, make the Crown’s use of its discretion “immune from meaningful review”.

[28] Mr. Hicks claims that this new argument was not recognised in earlier cases and allows this court to revisit the earlier precedents.

[29] For the following reasons, I disagree.

[30] First, the comments in Nur were made in a completely different context. There, the Court was deciding on the constitutionality of mandatory minimum sentences imposed after conviction of firearms offences prosecuted under s. 95 of the Criminal Code.

[31] At the trial level, the application judge found the mandatory minimum sentence framework constitutional in part because of the Crown’s discretion to decide whether the offence would be charged summarily or by indictment. The former would result in a minimum sentence of one year, the latter, a three year penalty.

[32] The dissent in Nur, written by Moldaver J., agreed that this factor weighed in favour of finding the impugned sentencing sections constitutional as it built in a safeguard to ensure the least serious offences would not attract a mandatory minimum sentence. The majority disagreed holding that sentencing was a judicial function and that the Crown’s use of its discretion to limit the mandatory minimum sentence to one year could not be a basis for justifying its constitutionality.

[33] The Court’s comments about the discretion being “illusory” referred to the dissent’s view of the protection offered against disproportionate punishment. It was not a general characterisation of the abuse of process doctrine. Nor did the Court’s comments detract from the validity of the abuse of process doctrine to control unfair prosecutorial discretion. The Court specifically directed its comments about prosecutorial discretion “being effectively immune from meaningful review” towards the mandatory minimum sentence framework proposed by the dissent.

[34] Accordingly, I find no new legal issue or argument to be raised.

Abuse of Process

[35] Even if I agreed that the applicant’s abuse of process argument is a new issue arising out of Nur, I would still find, for the following reasons, that the applicant had failed to demonstrate that the preferment of a direct indictment without reasons is unconstitutional.

[36] First, it is unclear why the abuse of process remedy is unfair or allows for the preferment of a direct indictment in an “arbitrary, capricious and unfair” manner as suggested by the applicant. In fact, it does the opposite by providing a check on the Crown’s “arbitrary” use of its discretion.

[37] Nor am I convinced by the applicant’s argument that the defence’s inability to obtain information about the Crown’s decision to prefer an indictment prevents meaningful review.

[38] Prosecutorial discretion has been defined as “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”: Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372, at para. 43.

[39] In Anderson, the Court, at para. 44, citing Krieger, held that prosecutorial discretion should be recognised as an “expansive” term covering “all decisions regarding the nature and extent of the prosecution and the Attorney General's participation in it”. The Court included the power to prefer a direct indictment in its list of core Crown functions.

[40] The courts have repeatedly held that prosecutorial discretion is an important and necessary component in the functioning of the criminal justice system: Power, at pp. 626-27; Anderson, at para. 37; R. v. Cook, 1997 CanLII 392 (SCC), [1997] 1 S.C.R. 1113, at para. 19; Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339, at para. 47; Sriskandarajah v. USA, 2012 SCC 70, [2012] 3 S.C.R. 609, at para. 27.

[41] That necessary function requires the Crown to make decisions without the fear of being second guessed.

[42] The dangers in seeking to regularly review prosecutorial discretion were made clear in Anderson, at paras. 46-47:

The courts have long recognized that decisions involving prosecutorial discretion are unlike other decisions made by the executive: see M. Code, "Judicial Review of Prosecutorial Decisions: A Short History of Costs and Benefits, in Response to Justice Rosenberg" (2009), 34 Queen's L.J. 863, at p. 867. Judicial non-interference with prosecutorial discretion has been referred to as a "matter of principle based on the doctrine of separation of powers as well as a matter of policy founded on the efficiency of the system of criminal justice" which also recognizes that prosecutorial discretion is "especially ill-suited to judicial review": Power, at p. 623. In Krieger, the Court discussed the separation of powers doctrine as a basis for judicial deference to prosecutorial discretion:

In our theory of government, it is the sovereign who holds the power to prosecute his or her subjects. A decision of the Attorney General, or of his or her agents, within the authority delegated to him or her by the sovereign is not subject to interference by other arms of government. An exercise of prosecutorial discretion will, therefore, be treated with deference by the courts and by other members of the executive ... . [para. 45]

The Court also noted the more practical problems associated with regular review of prosecutorial discretion:

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. [para. 32]

[43] The Court in Anderson concluded that prosecutorial discretion is entitled to considerable deference and reviewable solely for abuse of process.

[44] The caselaw also makes apparent that when exercising its discretion, the Crown need not give reasons absent evidence of bad faith or improper motives: Sriskandarajah, at para. 27; Anderson, at para. 54; R. v. Bulhosen, 2019 ONCA 600, 377 C.C.C. (3d) 309, at para. 88; R. v. St. Amand, 2017 ONCA 913, 358 C.C.C. (3d) 226; R. v. Shaw, 2019 ONSC 3283, at para. 52.

[45] The need for an evidentiary threshold in an abuse of process motion stems from the significance of the discretion: Anderson, at para. 55.

[46] If the threshold was not of a sufficiently high standard, every prosecutorial decision would be subject to attack by an accused dissatisfied with the process. Such an outcome might result in the paralysis of the criminal justice system. Thus, any such assertion must only be launched by adducing evidence of improper motive.

[47] For these reasons, I do not find that the abuse of process procedure is an insufficient remedy that renders s. 577(a) unconstitutional.

[48] Finally, as the Crown points out, the use of a direct indictment has been endorsed by recent jurisprudence in light of the concerns set out in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, and its descendant caselaw: Bulhosen, at paras. 89-90; R. v. Manasseri, 2016 ONCA 703, 344 C.C.C. (3d) 281, at para. 376; R. v. C.M.M., 2017 MBCA 105, at para. 14; R. v. Burg, 2021 MBCA 77, 407 C.C.C. (3d) 103, at para. 55.

[49] Accordingly, I conclude that the applicant has not demonstrated any reason to find s. 577(a) unconstitutional and depart from the formidable body of caselaw that fully answer his complaints.

[50] In light of my conclusion, there is no need to address the applicant’s s. 1 arguments.

[51] For these reasons, the constitutional challenge is dismissed.

S.A.Q. Akhtar J.

Released: 17 May 2022

COURT FILE NO.: CR-21-70000303-0000

DATE: 20220517

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JAMES NOSEWORTHY

RULING ON CONSTITUTIONALITY OF SECTION 577(a) OF THE CRIMINAL CODE

S.A.Q. Akhtar J.