COURT FILE NO.: CR-174-21

DATE: 20220603

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Nathaniel Veltman

Defendant

Lisa Mathews and Sarah Shaikh, for the Public Prosecution Service of Canada

Fraser Ball and Jennifer Moser, for the Attorney General of Ontario

Christopher Hicks, Mitchell Huberman, Rebecca Meredith, for the Defendant

HEARD: May 19, 2022

RULING ON CONSTITUTIONAL VALIDITY OF S. 577 OF THE CRIMINAL CODE

pomerance j.

[1] The applicant, Nathaniel Veltman, argues that the power of the Attorney General to direct an indictment under s. 577 of the Criminal Code of Canada, R.S.C. 1985, c. C-46, violates s. 7 of the Canadian Charter of Rights and Freedoms and cannot be saved under s. 1 of the Charter. The applicant says that it is unfair to allow an accused person to be deprived of a preliminary hearing in a case involving serious charges, and further, that it is unfair to allow the Crown to proceed by direct indictment without requiring the Attorney General or the Deputy to give reasons for the decision.

[2] These arguments bump up against a long line of binding judicial authority. Canadian courts have consistently held that there is no constitutional right to a preliminary inquiry and no right not to be deprived of a preliminary hearing. Courts have also held that the Attorney General is not required to give reasons for the exercise of core discretionary authority. I am bound by these decisions. Were I not bound, I would, in any event, find the power conferred by s. 577 of the Criminal Code to be constitutionally sound.

[3] I will elaborate on these conclusions in the reasons that follow. I will begin by addressing the principle of stare decisis. While that discussion is dispositive of the application, I will go on to briefly address the merits of the arguments. For present purposes, there is no need to recount the allegations against the applicant. It suffices to observe that he faces several serious charges and the prospect of a significant deprivation of liberty if convicted.

Stare Decisis

[4] The constitutional story at issue is not mine to tell. It has been told by other courts, including the Court of Appeal for Ontario and the Supreme Court of Canada. As the Crown argues in this case, the principle of stare decisis compels the dismissal of the application based on vertical authority from appellate courts and horizontal authority from judges of this court: see e.g. R. v. Noseworthy, 2022 ONSC 2998; R. v. Hersi, 2014 ONSC 1211. The jurisprudence establishes, beyond any peradventure, that:

1. There is no constitutional right to a preliminary hearing: see R. v. Arviv (1985), 1985 CanLII 161 (ON CA), 51 O.R. (2d) 551 (C.A.), leave to appeal refused, [1985] S.C.C.A. No. 74; R. v. Ertel (1987), 1987 CanLII 183 (ON CA), 20 O.A.C. 257, leave to appeal refused, [1987] S.C.C.A. No. 354; R. v. S.J.L., 2009 SCC 14, [2009] 1 S.C.R. 426;

2. The Attorney General need not hear submissions from a person affected by a direct indictment: see R. v. Saikaly (1979), 1979 CanLII 3023 (ON CA), 48 C.C.C. (2d) 192 (Ont. C.A.); R. v. Stolar (1983), 1983 CanLII 3479 (MB CA), 4 C.C.C. (3d) 333 (Man. C.A.);

3. The Crown need not give reasons for the exercise of core prosecutorial discretion: see Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372 (“Krieger”); R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566; R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167; and

4. The exercise of such Crown discretion is not reviewable by the courts unless there is a showing of abuse of process: see above cases, as well as R. v. Power, 1994 CanLII 126 (SCC), [1994] 1 S.C.R. 601.

Does the Charter Supersede Stare Decisis?

[5] The applicant argues that the Charter displaces stare decisis in the circumstances of this case. He cites Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, in which the Supreme Court held that earlier binding precedents may be revisited 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.

Is There a Change in the Law?

[6] The applicant argues that the Supreme Court’s decision in R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, represents a change in the law. In Nur, the issue was whether the mandatory minimum sentence in s. 95 of the Criminal Code violated s. 12 of the Charter. Moldaver J., in dissent, ruled that grossly disproportionate sentences would be prevented by the proper exercise of prosecutorial discretion in cases of hybrid crimes. If proceeding by way of indictment would lead to a grossly disproportionate sentence, the Crown would proceed summarily, thereby avoiding an unconstitutional result. The majority rejected this argument, holding that an unconstitutional provision could not be “cured” by reliance on prosecutorial discretion. As McLachlin C.J. put it, at paras. 94-95:

[94] I add this about my colleague’s proposed framework. The protection it offers against grossly disproportionate punishment is illusory: in practice it would create a situation where the exercise of the prosecutor’s discretion is effectively immune from meaningful review. The abuse of discretion standard is a notoriously high bar and has no place in this Court’s jurisprudence under s. 12 of the Charter. The proposed framework would be a radical departure from the constitutional framework in these cases and offers scant protection from grossly disproportionate sentences being imposed on offenders.

[95] Two further objections may be raised against the argument that prosecutorial discretion can cure a sentencing provision that violates s. 12 of the Charter. The first is that one cannot be certain that the discretion will always be exercised in a way that would avoid an unconstitutional result. Nor can the constitutionality of a statutory provision rest on an expectation that the Crown will act properly: Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, [2002] 3 S.C.R. 209, at para. 45. As Cory J., for the majority, stated in R. v. Bain, 1992 CanLII 111 (SCC), [1992] 1 S.C.R. 91, at pp. 103-4:

Unfortunately, it would seem that whenever the Crown is granted statutory power that can be used abusively then, on occasion, it will indeed be used abusively. The protection of basic rights should not be dependent upon a reliance on the continuous exemplary conduct of the Crown, something that is impossible to monitor or control. Rather the offending statutory provision should be removed.

[7] The above passage, relied upon by the applicant, must be viewed in context. The Court was not opining on prosecutorial discretion per se. The issue was whether prosecutorial discretion could remedy a violation of s. 12 of the Charter. Nur provides that, if a sentencing provision is unconstitutional, it is no answer to say that Crown discretion will avoid the unconstitutional result. Charter compliance cannot be downloaded on to the prosecutor, and it cannot be assumed that Crown elections will always prevent a s. 12 breach.

[8] Significantly, the Court in Nur did not find that the Crown discretion to elect was itself unconstitutional. To the contrary, the Court acknowledged that such discretion is a necessary component of the criminal trial process, at para. 90:

[90] This is not to say that the Crown election to proceed summarily is in itself problematic. It is entirely appropriate that the Crown should exercise its discretion in order to screen out some offences at the lower end of the spectrum captured by s. 95(1). Hybrid offences allow the Crown to take into account the variation that exists between cases. They recognize that the same offence can be committed in more and less serious ways and allows the Crown to take the specific circumstances of each case into account. As the trial judge noted in Nur, the “state interest, in enacting a hybrid offence, is to provide flexibility so that Crown prosecutors can adapt available procedures and sentences to the needs of a particular case”: para. 126.

[9] This case is very different from Nur. There is no suggestion that an unconstitutional provision can be saved by reliance on prosecutorial discretion. The issue in this case is whether the prosecutorial discretion is, itself, consistent with the Charter. On that question, neither Nur nor any other authority supports the applicant’s assertion of Charter non-compliance.

[10] I agree with the reasons of Akhtar J., who rejected this very same argument in the recent case of Noseworthy, at paras. 24-25, 30-33:

[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.J.L. 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”.

[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.

Are There New Circumstances?

[11] In his second argument, the applicant submits that circumstances have changed since Arviv, Ertel, and S.J.L. were decided back in the 1980s. Mr. Hicks, counsel for the applicant, argues that, since that time, there has evolved a far greater acceptance of the Charter by the Canadian public. He asserts that the public has come to embrace Charter principles and would be shocked to learn of the operation of s. 577 of the Criminal Code, which can force an individual to proceed to trial without a preliminary hearing.

[12] I am not persuaded that this is a new circumstance warranting reconsideration of the Charter issues. First, the principles in question are not relics of the 1980s. They have firm roots in modern jurisprudence. Just a few weeks ago, in R. v. Sullivan, 2022 SCC 19, the Supreme Court of Canada reiterated its view that the Attorney General has independence in the sphere of discretionary decisions, at paras 70-72:

[70] While one might well expect the authorities to consider an appeal when faced with conflicting trial decisions relating to a law on which the prosecution continues to rely, I respectfully disagree with the view that the relevant attorney general is bound to appeal declarations of unconstitutionality in criminal matters such as these. It is true that when put on notice that the constitutionality of a provision has been challenged, the attorney general has the “opportunity” to defend the impugned law and appeal a declaration of unconstitutionality where an appeal does lie (Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3, at para. 19; see also R. v. McCann, 2015 ONCA 451, at para. 6). Yet however desirable uniform treatment of the substantive criminal law might be within or even across provinces, the decision to appeal remains within the discretion of the attorney general, who acts independently in deciding the question, in keeping with its authority to pursue the public interest (see, e.g., M. Rosenberg, “The Attorney General and the Administration of Criminal Justice” (2009), 34 Queen’s L.J. 813, at pp. 819 and 825; K. Roach, “Not Just the Government’s Lawyer: The Attorney General as Defender of the Rule of Law” (2006), 31 Queen’s L.J. 598, at pp. 608‑10, citing J. Ll. J. Edwards, The Law Officers of the Crown (1964), at p. 228).

[71] Barring an abuse of that authority, the attorney general is not answerable for the exercise of its discretion in such matters before the courts (R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at paras. 44 and 46). The attorney general might well choose not to appeal a declaration of unconstitutionality….

[72] Before us, it was argued that the peculiar circumstances of this case highlight that the constitutional status of s. 33.1 remained unsettled for a significant period of time. It is not, of course, the role of this Court to instruct the Attorney General of Canada in the exercise of its prosecutorial discretion or the other tools it has at its disposal in the exercise of its charge. [Emphasis added.]

[13] Secondly, there is no evidence to support the proposition that public attitudes have changed. I cannot take judicial notice of this assertion: see e.g. R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458. Nor can I assume that the public would be shocked to learn how s. 577 operates. As noted by Ms. Shaikh for the federal Crown, it is equally plausible that the public would be shocked if s. 577 were not available to the prosecution.

[14] I need not decide between these competing propositions. The question is not what an opinion poll might reveal about current public attitudes. As has been attributed to American scholar Paul Freund, courts are guided not by the temperature of the day but by the climate of the era: see Marcia Coyle, “The Supreme Court and the ‘Climate of the Era’” (9 June 2020), online: Constitution Daily <www.constitutioncenter.org>. The climate of the era is necessarily hospitable to human rights doctrine. The Charter is not guided by transient or majority sentiment. It is, rather, a normative embodiment of the very best of our collective aspirational ideals – those at the core of a free and democratic society.

[15] It has been observed that the Charter is woven into Canada’s national imagination – that it expresses the country’s sense of itself: see “Remarks of the Right Honourable Beverley McLachlin, P.C. – Canadian Rights and Freedoms: 20 Years Under the Charter” (17 April 2002), online: Supreme Court of Canada <www.scc-csc.ca>. This ideal defines the attributes of the reasonable person – mythical or otherwise – whose perspective is engaged by constitutional principles. For constitutional purposes, the reasonable person is one who is informed, dispassionate, and Charter friendly.

[16] That is the person described by Lamer J. (as he then was) in R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at pp. 281-82:

The concept of disrepute necessarily involves some element of community views, and the determination of disrepute thus requires the judge to refer to what he conceives to be the views of the community at large. This does not mean that evidence of the public’s perception of the repute of the administration of justice, which Professor Gibson suggested could be presented in the form of public opinion polls (supra, pp. 236‑47), will be determinative of the issue (see Therens, supra, pp. 653‑54). The position is different with respect to obscenity, for example, where the court must assess the level of tolerance of the community, whether or not it is reasonable, and may consider public opinion polls (R. v. Prairie Schooner News Ltd. and Powers (1970), 1970 CanLII 1059 (MB CA), 1 C.C.C. (2d) 251 (Man. C.A.), at p. 266, cited in Towne Cinema Theatres Ltd. v. The Queen, 1985 CanLII 75 (SCC), [1985] 1 S.C.R. 494, at p. 513). It would be unwise, in my respectful view, to adopt a similar attitude with respect to the Char­ter. Members of the public generally become conscious of the importance of protecting the rights and freedoms of accused only when they are in some way brought closer to the system either personally or through the experience of friends or family.…

The approach I adopt may be put figuratively in terms of the reasonable person test proposed by Professor Yves‑Marie Morissette in his article “The Exclusion of Evidence under the Canadian Charter of Rights and Freedoms: What to Do and What Not to Do” (1984), 29 McGill L.J. 521, at p. 538. In applying s. 24(2), he suggested that the relevant question is: “Would the admission of the evidence bring the administration of justice into disrepute in the eyes of the reasonable man, dispassionate and fully apprised of the circumstances of the case?” The reasonable person is usually the average person in the community, but only when that community’s current mood is reasonable.

[17] In other words, the degree of actual public support for the Charter is not, and never has been, the barometer for interpreting rights and freedoms. One can hope that public support for human rights is on the rise, but that is not a change in circumstance that warrants revisiting settled and binding judicial precedent.

The Merits

[18] While the principle of stare decisis is dispositive of this application, I will go on to briefly address the merits.

[19] The applicant raises two distinct arguments. The first concerns the fact that the direct indictment deprived the applicant of a preliminary hearing. The applicant acknowledges that there is no constitutional right to a preliminary hearing. He argues, however, that it violates s. 7 of the Charter to be deprived of a preliminary hearing by way of a direct indictment. Second, the applicant submits that the direct indictment is a veritable “black box”, whereby decisions are made without any explanation or reasons. This, it is said, is arbitrary and capricious. Therefore, the deprivation of a preliminary hearing by way of direct indictment violates s. 7 of the Charter.

[20] I will deal with each of these in turn.

Deprivation of a Preliminary Inquiry

[21] It is well settled that there is no constitutional right to a preliminary hearing: see Arviv, S.J.L., and Ertel. The applicant acknowledges this but nonetheless argues that it violates s. 7 of the Charter to be deprived of a preliminary hearing. The applicant argues that, particularly where, as here, charges are particularly serious, the accused should not be deprived of the opportunity to cross-examine Crown witnesses prior to trial. I see this as a distinction without a difference. Semantics aside, if there is no right to a preliminary hearing, there can be no right not to be deprived of a preliminary hearing.

[22] I need not recite the reasons for this principle, which are set out in Arviv, S.J.L., and Ertel. In short, there are various safeguards that ensure fairness in the absence of a preliminary hearing. Chief among them is the requirement of full disclosure by the prosecution. Other safeguards include the presumption of innocence, the right to full answer and defence, the right to cross-examine witnesses at trial, and other inherent features of the criminal trial process.

[23] Even where a preliminary hearing is held, it does not automatically confer a right to cross-examine Crown witnesses. At the time Arviv and Ertel were decided, preliminary hearings invariably involved cross-examination. By virtue of amendments to the Criminal Code, this is no longer the case. Preliminary hearings are subject to focus hearings. Section 540(7) of the Criminal Code contemplates that evidence may be introduced in writing, rather than through viva voce testimony. The accused must apply to the court for the opportunity to cross-examine on such evidence.

[24] It no doubt assists the defence, as it does the Crown, to see witnesses in action before trial. However, that which is desirable is not necessarily that which is mandated. The accused is entitled to a fair process, but not the fairest process imaginable. There is no suggestion that disclosure was inadequate in this case or that other specific prejudice arises from the absence of a preliminary hearing. The mere fact that there was no preliminary hearing does not engage or infringe Charter-protected interests.

The Alleged “Black Box”

[25] The second category of argument concerns the process for direct indictments. The applicant says that s. 577 of the Criminal Code violates s. 7 of the Charter because it does not permit the person affected by the decision to make submissions to the Attorney General; and it does not require the Attorney General to give reasons for their decision. On this basis, it is said that the power to directly indict is arbitrary, capricious, and unfair. While there are defined criteria for the exercise of this discretion, the applicant argues that, without further transparency, it is impossible to know whether those criteria have been applied.

[26] The Crown offers various arguments in response:

1. The power to direct an indictment is part of the core discretionary authority conferred upon the Attorney General;

2. As such, it, like other discretionary decisions, is subject to a presumption of regularity (i.e. a presumption that the decision has been undertaken in good faith);

3. It is untenable to require that the Attorney General hear from those affected by such decisions, or that he/she provide reasons for such decisions; and

4. It is untenable to subject prosecutorial discretion to judicial review, unless there is evidence of an abuse of process.

[27] Each of these arguments rests on a strong pillar of judicial authority.

[28] Dealing first with the scope of prosecutorial discretion, it is broadly defined as decisions pertaining to the nature and extent of the prosecution. As it was explained in Krieger, at para. 47: “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” (emphasis in original). These decisions are at the core of the sovereign authority delegated to the Attorney General. In Anderson, Moldaver J. identified the decision to direct an indictment as one example of the Attorney General’s discretionary sphere of authority, at para. 44:

[44] In an effort to clarify, I think we should start by recognizing that the term “prosecutorial discretion” is an expansive term that covers all “decisions regarding the nature and extent of the prosecution and the Attorney General’s participation in it” (Krieger, at para. 47). As this Court has repeatedly noted, “[p]rosecutorial discretion refers to the discretion exercised by the Attorney-General in matters within his authority in relation to the prosecution of criminal offences” (Krieger, at para. 44, citing Power, at p. 622, quoting D. Vanek, “Prosecutorial Discretion” (1988), 30 Crim. L.Q. 219, at p. 219 (emphasis added)). While it is likely impossible to create an exhaustive list of the decisions that fall within the nature and extent of a prosecution, further examples to those in Krieger include: the decision to repudiate a plea agreement (as in R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566); the decision to pursue a dangerous offender application; the decision to prefer a direct indictment; the decision to charge multiple offences; the decision to negotiate a plea; the decision to proceed summarily or by indictment; and the decision to initiate an appeal. All pertain to the nature and extent of the prosecution. As can be seen, many stem from the provisions of the Code itself, including the decision in this case to tender the Notice. [Emphasis added.]

[29] The applicant argues that the power to direct an indictment is somehow different than other discretionary decisions because of the important interests at stake. However, important interests are always at stake in the exercise of prosecutorial discretion. If anything, it could be said that other prosecutorial decisions carry greater impact than the decision to direct an indictment. For example, the decision of the Crown to proceed by way of indictment, rather than by way of summary conviction, can mean the difference between a one-year mandatory minimum penalty and a three-year mandatory minimum penalty. In any event, the litmus test is not how impactful the decision is. It is not helpful to parse prosecutorial powers on this basis. These powers are all rooted in the same constitutional considerations. They have historically been treated as a bundle of collective authority by the courts.

[30] Therefore, to require input or reasons for a direct indictment is logically to require the same for other discretionary decisions. This is not a tenable proposition. In Saikaly, MacKinnon A.C.J.O said the following, at p. 195: “If the Attorney-General must give a hearing to anyone who might be affected every time he proposes the exercise the discretion conferred upon him by virtue of his office the administration of criminal justice would come to a standstill”: see also Stolar, at p. 342. The same may be said of a requirement of reasons for discretionary decisions.

[31] Moreover, to contemplate reasons is to contemplate that such reasons will be reviewed by the courts. Again, courts have consistently ruled that, save for allegations of abuse of process, courts should not second guess decisions made by prosecutors. This principle recognizes the impracticality of subjecting prosecutorial discretion to judicial review. Among other things, were courts to review the reasonableness of Crown decisions, courts would effectively become supervising prosecutors. As it was put in Anderson, at paras. 31-32:

[31] We must begin by acknowledging that the principle advanced by Mr. Anderson would enormously expand the scope of judicial review of discretionary decisions made by prosecutors. In doing so, it puts at risk the adversarial nature of our criminal justice system by hobbling Crown prosecutors in the performance of their work and by inviting judicial oversight of the numerous decisions that Crown prosecutors make on a daily basis. As the Crown has pointed out, the situations where Crown decisions have the potential to limit the sentencing judge’s options and therefore the judge’s ability to take s. 718.2(e) into account are many: A.F., at para. 145. These decisions include: proceeding with charges that attract a mandatory minimum sentence when other related offences have no mandatory minimum sentence (e.g. s. 95 as opposed to s. 92 or s. 94 of the Code); proceeding by indictment rather than summary conviction when different mandatory minimum sentences are required (e.g. ss. 151, 152 and 271 of the Code); and proceeding by indictment rather than by summary conviction when that decision precludes the possibility of a conditional sentence (e.g. s. 267(b) of the Code). Moreover, there are several provisions of the Code and the Controlled Drugs and Substances Act, S.C. 1996, c. 19, where a mandatory minimum is triggered by the Crown’s decision to prove a particular aggravating factor — such as evidence of a firearm used in the commission of the offence (e.g. s. 344 of the Code; ss. 5 and 6 of the Controlled Drugs and Substances Act). As with the other examples provided, the decision to prove the aggravating factor limits the sentencing judge’s options.

[32] Apart from the sheer volume of decisions that would be opened up for review, the Crown’s decision to seek the mandatory minimum penalty — as we shall see — is a matter of prosecutorial discretion. There has been a long-standing and deeply engrained reluctance to permit routine judicial review of the exercise of that discretion. As affirmed in R. v. Beare, 1988 CanLII 126 (SCC), [1988] 2 S.C.R. 387, at p. 411, the Court “has already recognized that the existence of prosecutorial discretion does not offend the principles of fundamental justice”. And, as L’Heureux-Dubé J., for the majority of this Court, noted in R. v. Power, 1994 CanLII 126 (SCC), [1994] 1 S.C.R. 601, “the Crown cannot function as a prosecutor before the court while also serving under its general supervision. The court, in turn, cannot both supervise the exercise of prosecutorial discretion and act as an impartial arbitrator of the case presented to it” (p. 627). The imposition of a sweeping duty that opens up for routine judicial review all of the aforementioned decisions is contrary to our constitutional traditions. It cannot be a principle that is considered fundamental to the way in which our legal system ought fairly to operate.

[32] This is not to say that Crown decisions can never be reviewed. The ability to review Crown conduct for an abuse of process ensures that courts can intervene where necessary to ensure fairness or preserve the integrity of the trial process. The applicant argues that the abuse of process standard is a high standard and is virtually impossible to meet, particularly when there is no access to the decision-making process. Abuse of process does set a high standard, but this is consistent with the presumption of good faith that otherwise applies to Crown decision making. I refer once again to Anderson, in which Moldaver J. expressly recognized this presumption, at para. 55:

[55] Requiring the claimant to establish a proper evidentiary foundation before embarking on an inquiry into the reasons behind the exercise of prosecutorial discretion respects the presumption that prosecutorial discretion is exercised in good faith: Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248, at para. 95. It also accords with this Court’s statement in Sriskandarajah, at para. 27, that “prosecutorial authorities are not bound to provide reasons for their decisions, absent evidence of bad faith or improper motives” (emphasis added).

[33] The presumption of good faith is necessary. Without it, one might imagine a never-ending series of inquiries into the reasons behind prosecutorial decisions. Even if reasons were given, the defence might posit the possibility of a sub-facial impropriety waiting to be discovered. This could prompt an ever-increasing series of questions, perhaps culminating in the interrogation of the decision maker him/herself. A threshold requirement ensures that fishing is only permitted when something is likely to be caught in the net.

[34] It is true, as the applicant argues, that human beings do not always get it right. It is not suggested that prosecutorial decisions are always models of perfection. However, discretionary decisions are not amenable to empirical or mathematical measurement. They are governed by a host of factors, some more tangible or formulaic than others. For example, discretion engages the amorphous concept of the public interest, in all of its complex majesty. Prosecutors are at liberty to consider, among other factors, compassionate circumstances, the gravity of the crimes, the strengths and vulnerabilities of witnesses, the interests of victims, the need to prevent wrongful convictions, and community values, to name but a few considerations. As Professor Benjamin Berger has observed, prosecutors are at liberty to apply equitable considerations not available to the judiciary: “The latitude afforded to prosecutorial discretion is a systemic recognition that criminal justice requires something beyond the law”: see Benjamin L. Berger, “The Abiding Presence of Conscience: Criminal Justice Against the Law and the Modern Constitutional Imagination” (2011) 61:4 U.T.L.J. 579, at p. 613.

[35] At the same time, prosecutors do not have unbridled authority. Their discretion is guided by policies and guidelines. The criteria and protocol for direct indictments is set out in the Public Prosecution Service of Canada Deskbook and the Ontario Crown Prosecution Manual. The decision to proceed by direct indictment is reserved for the Attorney General or Deputy. These internal mechanisms and controls are designed to foster good decision making, and the publication of these items allows for transparency. I refer to Anderson, where Moldaver J. commented on the relevance of Crown policies and guidelines, at para. 56:

[56] Finally, I note that the content of a Crown policy or guideline may be relevant when a court is considering a challenge to the exercise of prosecutorial discretion. Policy statements or guidelines are capable of informing the debate as to whether a Crown prosecutor’s conduct was appropriate in the particular circumstances. See R. J. Frater, Prosecutorial Misconduct (2009), at p. 259. For example, a decision by a Crown prosecutor that appears to contravene a Crown policy or guideline may provide some evidence that assists the claimant in establishing the threshold evidentiary foundation. However, as the intervener the Director of Public Prosecutions of Canada submits, Crown policies and guidelines do not have the force of law, and cannot themselves be subjected to Charter scrutiny in the abstract: see R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, at para. 45 (discussing police practices manuals).

[36] Therefore, while the process for directing an indictment is opaque, it is not arbitrary or capricious. It is a structured analysis of considerations taking place within a framework and defined protocol.

Conclusion

[37] As long ago as 1971, the Supreme Court of Canada in Smythe v. The Queen, 1971 CanLII 831 (SCC), [1971] S.C.R. 680, at p. 686, opined that: “Enforcement of the law and especially of the criminal law would be impossible unless someone in authority be vested with some measure of discretionary power.” This remains the case some 50 years later. Since 1971, courts have definitively held that such discretionary powers do not offend the Charter. For all of the reasons set out above, I must conclude that s. 577 of the Criminal Code is constitutionally compliant.

[38] Having found no violation, I need not consider s. 1 of the Charter.

[39] For all of these reasons, the application is dismissed.

Original Signed by “Justice R.M. Pomerance”

Renee M. Pomerance

Justice

Released: June 3, 2022