Warning
An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue and an order under s. 648 is now in place. These sections of the Criminal Code provide:
486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.
486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
648 (1) After permission to separate is given to members of a jury under subsection 647(1), no information regarding any portion of the trial at which the jury is not present shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.
Offence
(2) Every one who fails to comply with subsection (1) is guilty of an offence punishable on summary conviction.
(3) [Repealed, 2005, c. 32, s. 21]
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
T. R.
Defendant
R. Williams, for the Crown
A. Bigioni, for the Defendant
HEARD: July 12, 2022
ABUSE OF PROCESS MOTION
1On October 7, 2020, T.R. was charged with sexual assault and choking to facilitate a sexual assault. He elected to be tried at the Superior Court of Justice with a jury after a preliminary hearing. On April 29, 2022, Crown counsel withdrew the charge of sexual assault with choking and as a result T.R. was no longer entitled to a preliminary hearing. T.R. sought to re-elect to judge alone at Provincial Court, but pursuant to s. 561 of the Criminal Code, he requires the consent of the Crown. The Crown would only consent if T.R. waived his rights under s.11(b) of the Charter.
2T.R. is now applying to this court to find that the Crown’s refusal to consent to a re-election without conditions is an abuse of process, violating his rights under s. 7 of the Charter. And is seeking an order allowing him to re-elect his mode of trial to a judge alone trial in Provincial Court as a remedy under s. 24(1) of the Charter.
Relevant facts
3The complainant met T.R. over a dating app and then met him in person at his residence on October 3, 2020. Although they engaged in some consensual sexual activity, she claims that T.R. penetrated her vaginally and anally without her consent and that during vaginal intercourse he choked her to the point she believed she was going to lose consciousness. She believes that part of the assault was recorded on T.R.’s phone.
4On October 7, 2020, T.R. was charged with sexual assault and sexual assault with choking. On June 22, 2021, defence counsel Mr. Bigioni and Crown counsel Ms. Staats held a judicial pre-trial conference with Justice Gattrell. Defence counsel indicated T.R. would be electing to have a preliminary hearing followed by a trial by judge and jury in the Superior Court and further indicated that identity, date, time and jurisdiction would be admitted by the defence for the purposes of the preliminary hearing. The defence also conceded that the Crown could introduce a prior statement of the complainant to support committal, as long as the complainant was made available for cross-examination by the defence.
5On September 13, 2021, the parties met to schedule the preliminary hearing. The court and the Crown were available as early as December 15, 2021. However, the first date offered that was available for all parties was Tuesday, May 3, 2022. On the Friday before the preliminary hearing was scheduled to begin, Crown counsel Mr. Kandola advised the defence that the Crown was withdrawing the sexual assault with choking charge and accordingly, the defence was no longer entitled to a preliminary inquiry.
6In response to being asked why the charge was being withdrawn, Mr. Kandola provided no details beyond stating that he had only recently reviewed the file and determined that withdrawing the charge was the best course of action. (There was no additional disclosure and thus, it is unlikely that the complainant was involved in the Crown’s decision to withdraw.) The defence asked whether they could proceed with the preliminary hearing in any event. When the defence was informed that a preliminary hearing was statute barred, the defence asked for consent to re-elect to a Provincial Court trial.
7Mr. Kandola was willing to give consent, provided T.R. would waive his rights under s. 11(b) of the Charter.
8There was over 18 months between the laying of the charges and the date the sexual assault with choking charge was withdrawn. Defence counsel conceded before me that a number of months of delay would be considered “defence delay”, such that the 18-month Jordan ceiling had not yet been reached as of the date the preliminary hearing was scheduled to begin. However, defence counsel understandably did not specify any further how much of the delay, the court would likely find to be defence delay.
9At the hearing of the motion before me, Crown counsel Mr. Williams clarified that the Crown was not seeking a waiver of all delay. Instead, if the defence was willing to waive 14 months of the delay, the Crown would consent to a re-election.
Positions of the Parties
10Both parties agree that although abuse of process motions should generally be brought before the trial judge, in the unique circumstances of this case, it is appropriate to bring the motion in Superior Court now, before the accused has made his election, as the outcome of the motion will likely impact the mode of trial elected.
11The defence submits that the Crown conduct amounts to an abuse of process. To be clear, the impugned conduct is the withdrawing of the charge that disentitled the accused to a preliminary hearing, and then not consenting to a re-election without conditions. It is the combination of these two actions that, the defence argues, amounts to an abuse of process.
12Defence counsel submits that by waiting until the eve of the preliminary inquiry, 18 months after the charges were laid, to take away the right to such an inquiry, the Crown created significant delay. Since the Crown caused the delay, the defence argues it is unfair to insist that T.R. waive his constitutional rights to a trial within a reasonable time in order to secure a trial at the venue of his choice.
13In the factum, Crown counsel took the position that there is a strong s.11(b) argument for the defence, such that consenting to a re-election without a waiver would be akin to consenting to the charges being stayed. The factum did not provide any analysis of the delay to support its position that the defence would likely succeed on an s.11(b) motion. At the hearing before me, Crown counsel resiled from the position that the s.11(b) argument would necessarily be a strong one. Instead, he took the position that this was not the proper forum to consider the merits of a motion to stay pursuant to s. 11(b) and effectively conceded that I did not have the tools to assess the strength of such a motion.
14The crux of the Crown’s argument was that although the Crown’s conduct may not sit well with the court, it does not amount to an abuse of process, and accordingly the Court should not interfere with the Crown’s exercise of discretion in this case.
The Appropriate Test for an Abuse of Process
15The courts have recognized that Crown conduct that negatively impacts the fair trial rights of the accused, or impacts the integrity of the judicial system at large may amount to an abuse of process (R. v. J.S.R., 2012 ONCA 568, at para. 124; R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566, at para. 36).
16In assessing whether the conduct amounts to abusive, such that the courts should interfere, the court must first determine whether the impugned conduct is at the core of the Crown’s discretion. In order to ensure that the Crown has independence from the court, decisions that are at the core of prosecutorial discretion should not be interfered with by the court unless there has been “flagrant impropriety”. However, other decisions of the Crown may be reviewed at the less stringent, fair and objective threshold.
17In R. v. J.S.R., 2012 ONCA 568, Feldman J.A. provided the following guidance in assessing whether the impugned conduct is at the core of the Crown’s discretion:
118 The scope of the court's ability to review a decision made by the Crown in a criminal case has been the subject of a number of decisions at all levels of court, including the Supreme Court of Canada in its decisions in Krieger v. Law Society (Alberta), 2002 SCC 65, [2002] 3 S.C.R. 372 (S.C.C.) and R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566 (S.C.C.).
119 In those cases, the Supreme Court explained that in approaching this issue, the first question to be determined is whether the Crown decision at issue is part of the "core prosecutorial discretion" of the Attorney General. Such decisions are not subject to court review except for abuse of process amounting to "flagrant impropriety" or malicious prosecution. The limits of core prosecutorial discretion were described as follows by the court in Krieger, at paras. 43 and 46-47:
"Prosecutorial discretion" is a term of art. It does not simply refer to any discretionary decision made by a Crown prosecutor. Prosecutorial discretion refers to the use of those powers that constitute the core of the Attorney General's office and which are protected from the influence of improper political and other vitiating factors by the principle of independence.
Without being exhaustive, we believe the core elements of prosecutorial discretion encompass the following: (a) the discretion whether to bring the prosecution of a charge laid by police; (b) the discretion to enter a stay of proceedings in either a private or public prosecution, as codified in the Criminal Code, R.S.C. 1985, c. C-46, ss. 579 and 579.1; (c) the discretion to accept a guilty plea to a lesser charge; (d) the discretion to withdraw from criminal proceedings altogether; R. v. Osborne (1975), 1975 CanLII 1357 (NB CA), 25 C.C.C. (2d) 405 (N.B.C.A.); (e) the discretion to take control of a private prosecution: R. v. Osiowy (1989), 1989 CanLII 4780 (SK CA), 50 C.C.C. (3d) 189 (Sask. C.A.). While there are other discretionary decisions, these are the core of the delegated sovereign authority peculiar to the office of the Attorney General.
Significantly, what is common to the various elements of prosecutorial discretion is that they involve the ultimate decisions as to whether a prosecution should be brought, continued or ceased, and what the prosecution ought to be for. Put differently, prosecutorial discretion refers to decisions regarding the nature and extent of the prosecution and the Attorney General's participation in it. Decisions that do not go to the nature and extent of the prosecution, i.e., the decisions that govern a Crown prosecutor's tactics or conduct before the court, do not fall within the scope of prosecutorial discretion. Rather, such decisions are governed by the inherent jurisdiction of the court to control its own processes once the Attorney General has elected to enter into that forum.
120 The Supreme Court confirmed this definition of core prosecutorial discretion at para. 21 in Nixon.
121 Other "non-core" decisions made by the Crown in the course of a prosecution are matters of "tactics or conduct before the court" and are governed by the inherent jurisdiction of the court to control its own process. However, such decisions by the Crown can also only be challenged as an abuse of process. The difference is that the standard is somewhat less deferential to the Crown and does not require demonstrating flagrant impropriety in order to seek and obtain a remedy.
18In De Zen, 2010 ONSC 974, which was approved in J.S.R., Brown J. considered whether a Crown’s decision to require the accused to be tried by a jury under s. 568 was a decision of “core prosecutorial discretion”. He found that such a decision, which related to the appropriateness of the Crown weighing in on the mode of trial, was clearly outside the core discretion of the Crown and should be reviewed at the more relaxed standard.
19Following the reasoning in De Zen, I find that the Crown’s refusal to consent to a re-election to the mode of trial without conditions is outside the core discretion of the Crown. The Crown’s decision to refuse consent did not relate to “ultimate decisions as to whether a prosecution should be brought, continued or ceased, and what the prosecution ought to be for”.1 Instead, it clearly relates to Crown “tactics”. The more relaxed test should be applied and the question therefore is whether the Crown’s conduct in this case is “fair and objective”.
Was the Crown’s Decision to Refuse Unconditional Consent Fair and Objective?
20The accused has the onus of establishing an abuse of process on a balance of probabilities. The question is therefore whether T.R. has shown that the Crown’s refusal to consent is probably not “fair and objective”.
Comparing this case to De Zen and J.S.R.
21In light of the similarities of De Zen to the case at bar, I find that the application of the abuse of process test in that case, which was met with approval by the Court of Appeal in J.S.R., instructive.
22In De Zen, Brown J. found that the Crown’s decision to insist on a jury trial under s. 568 amounted to an abuse of process. There were multiple accused in De Zen, who all elected to be tried at the Provincial Court by judge alone. After a trial judge was assigned to the matter, the Crown exercised its discretion under s. 568 to insist on a jury trial. Brown J. found the Crown’s conduct was not fair and objective. He said:
Objectivity and fairness is an ongoing responsibility of the Crown, at every stage of the proceeding. In my view, the decision of the D.P.P. to invoke s. 568 of the Criminal Code to require a jury trial in this case was not made in a fair and objective way. By acting as they did, the Crown in this case has contravened fundamental notions of justice and undermined the integrity of the judicial process. As noted by the Supreme Court in Krieger and Regan, where Crown fairness and objectivity is shown to be lacking, corrective action may be necessary to protect the integrity of the criminal justice system. In my view, this is one of those cases.
In coming to this conclusion, I rely, in particular, upon the following circumstances:
(a) The fact that the Crown had known for an extended period of time prior to issuing the Requirement of the applicants' intention to elect trial in the Ontario Court of Justice;
(b) The fact that the Requirement was imposed only after a specific trial judge had been named;
(c) The fact that the Crown participated in extensive pre-trial discussions focused on how to bring about an expeditious and efficient trial in the Ontario Court of Justice by, inter alia, consideration of detailed admissions to be made before the presiding trial judge. This required the expenditure of considerable time and resources by the defence;
(d) The fact that the D.P.P. made this decision without providing any notice whatsoever to the accused;
(e) The fact that the D.P.P. has provided no explanation whatsoever for its exercise of this extraordinary power.
While none of these factors on their own would necessarily justify a finding of a Charter breach, taken cumulatively, these circumstances have undermined the integrity of the judicial process.
23Many of the deciding factors from De Zen are present in the case at bar, including:
(1) The Crown knew as of June 22, 2021 that the defence elected to have a preliminary hearing before a trial at the Superior Court with a jury, which was 10 months before the Crown took away the right to the preliminary hearing.
(2) After reviewing disclosure and considering its strategy, the defence made concessions and agreements regarding how the preliminary hearing should proceed. The defence also spent the time and resources preparing for the preliminary hearing up until Friday, April 29, 2022, when the accused was informed that the preliminary inquiry scheduled to begin four days later on Tuesday, May 3, 2022, would not be proceeding. (Having said that, the time and resources wasted by the defence in De Zen was far more extensive than it was in this case, considering De Zen involved a largescale fraud with multiple accused and voluminous disclosure.)
(3) The defence was given no notice that the Crown was considering withdrawing the charge that entitled the accused to a preliminary inquiry.
(4) There was no explanation given for the Crown’s decision to withdraw the charge that entitled him to a preliminary inquiry.
24There is one significant difference between De Zen and the case bar, and that is that in De Zen, the Crown exercised its discretion under s. 568 after the trial judge had been assigned to the case. It appeared as though the Crown was using its discretion to avoid a specific trial judge. That factor is not present in the case before me.
25Another important distinguishing factor is that the impugned conduct in the case at bar benefitted the accused to a certain degree, in that the accused is no longer facing the more serious charge of sexual assault with choking. Unlike in De Zen, the accused was clearly given both an advantage and a disadvantage by the Crown’s conduct.
26However, there are additional problematic issues in the case at bar that were not present in De Zen, including:
(1) The Crown is conditioning its consent to re-elect on a waiver of delay, when the delay is the result of the Crown waiting 18 months to inform the accused what his choices of mode of trial were.
(2) Had the Crown decided earlier to only charge T.R. with sexual assault, such that T.R. knew from the outset that he could not have a preliminary hearing in any event, he presumably could have already had his trial in Provincial court.
27As noted the decision in De Zen was met with approval by the Court of Appeal in J.S.R., however the appellate court in J.S.R. found that the Crown’s conduct in that case was not abusive. J.S.R. was charged in a highly publicized shooting on boxing day 2005, which resulted in the tragic death of an innocent bystander, Jane Creba. As a youth, J.S.R. elected to be tried in Superior Court by judge alone. The Crown exercised its discretion under s. 67(6) of the Youth Criminal Justice Act and required the trial proceed as a jury trial. J.S.R. argued before the Court of Appeal that the Crown’s use of s.67(6) amounted to an abuse of process.
28Feldman J.A. differentiated J.S.R. from De Zen on the basis that: (i) J.S.R. was given notice of the Crown’s decision to require a jury trial, (ii) J.S.R. was given the opportunity to make submissions before the court as to the appropriateness of the Crown’s decision, and (iii) there was an obvious objective reason for the Crown’s decision to insist on the public being involved in the J.S.R. trial in light of the notoriety of the case. The appellate Court ultimately dismissed this ground of appeal.
29Notably, unlike J.S.R., T.R. was not given notice of the Crown’s decision to withdraw the charge that entitled him to a preliminary hearing; he was not afforded the opportunity to make submissions on the issue; and there is no obvious appropriate reason supporting the Crown’s decision to withdraw. Similar to De Zen, the Crown’s conduct in this case raises concerns about the fairness and about a possible abuse of process, and in the face of these concerns being raised, the Crown failed to provide an explanation for its conduct.
Applying the language of R. v. S. to this case
30The Crown asks me to rely on R. v. S., 2019 ONCA 895 to find that it is not an abuse of process to withhold consent to a re-election where the re-election may result in “s. 11(b) problems”. As emphasized by the Crown, the Court of Appeal in that case noted that “where re-election would create the risk of s. 11(b) problems, the prosecutor has the authority to, and should, refuse consent, absent a s. 11(b) waiver.” However, no one raised the issue of an abuse of process in that case, the only issue was whether the delay was unreasonable. It was the accused in that case who manufactured the delay by electing to have a preliminary hearing and then at the last minute got consent from the Crown to re-elect to a trial in Provincial Court. In those circumstances, Paciocco J.A. found:
The bright line approach that I consider myself compelled to follow does not enable the defence to manufacture a s. 11(b) delay by re-electing into a shorter presumptive period of delay. Section 561(1) of the Criminal Code requires Crown consent before the accused can re-elect to a trial by a provincial court judge. Where re-election would create the risk of s. 11(b) problems, the Crown has the authority to, and should, refuse consent, absent a s. 11(b) waiver.
31Given the context, Paciocco J.A.’s comments cannot amount to a statement that refusing consent to re-elect, when there are “s.11(b) problems” will be a fair and objective decision in every case. Moreover, I note that the Crown is asking me to find that the Crown’s refusal to consent is fair and objective given the s. 11(b) problems in this case, but not giving me the tools to assess the severity of the s. 11(b) problems. Notably, giving consent to re-elect will often play a role in delaying a case getting to trial.
32In any case, the case before me is clearly distinguishable from the case before Paciocco J.A., since the issue at bar is whether the Crown conduct in causing the delay is fair and objective.
Conclusion
33On its face, the Crown’s insistence that T.R. waive the delay that was in essence caused by the Crown without explanation, in order for T.R. to have his choice of trial venue, seems unfair. It is similar to the unfairness in De Zen, and dissimilar from the Crown conduct in J.S.R.. “By acting as they did, the Crown in this case has contravened fundamental notions of justice and undermined the integrity of the judicial process.” (see De Zen, at para. 35). I find that the decision to withdraw the charge that entitled the accused to a preliminary hearing and then not consent to a re-election, without insisting on the accused limiting his Charter protections, amounts to an abuse of process. T.R.’s s.7 rights have been violated.
34I further find that the remedy of allowing T.R. to re-elect to judge alone in the Provincial Court without conditions is in keeping with the severity of the infringement on T.R.’s constitutional rights (Doucet-Boudreau v. Nova Scotia (Minister of Education) 2003 SCC 62). I therefore grant the motion.
Justice C. Verner
Date: July 22, 2022
COURT FILE NO.: CR-22-64-MO
DATE: 20220722
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
T. R.
Defendant
REASONS FOR JUDGMENT
Justice C. Verner
Released: July 22, 2022