COURT FILE NO.: CR-23-809
DATE: 2024-12-19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
DEJANAY GENERAL
Applicant
K. de Koning, on behalf of the Crown
S. Reid, for the Applicant
HEARD: October 17 and 18, 2024
a.j. goodman J.:
RULING WITH RESPECT TO APPLICATION FOR AN ABUSE OF PROCESS
[1] The applicant, Dejanay General, is charged with human trafficking, receive material benefit, advertise sexual services, exercise control, aggravated assault, and assault with a weapon, all contrary to their respective provisions in the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”). All of the charges are in relation to the same complainant.
[2] The applicant brings an application for abuse of process in relation to the Crown preferring a Direct Indictment ("DI") after a successful s. 540(9) application at the focus hearing, which would have allowed the defence to cross-examine the complainant at the preliminary inquiry on the eligible count. This step was taken by the Crown after the preliminary inquiry hearing had been scheduled. The applicant alleges this Crown conduct is contrary to s. 577 of the Code and the Crown Prosecution Manual (“CPM”). It is an attempt to circumvent the lower court’s ruling on the s. 540 application and amounts to an abuse of process. If abuse of process is established, the applicant seeks a stay of proceedings, or, in the alternative, a discovery hearing to cross-examine the complainant.
[3] The Crown rejects the applicant’s arguments and seeks a dismissal of the application.
Background:
[4] Ms. General was arrested and charged on September 3, 2022. The presumptive Jordan ceiling is March 3, 2025. She elected to have a preliminary inquiry, which was estimated to require two days.
[5] The Notice to the Profession in Hamilton, dated June 20, 2022, sets out that any matter in the Ontario Court of Justice (except for homicide cases) that requires a preliminary inquiry of two days or more will have a focus hearing in lieu of a judicial pre-trial.
[6] The Crown gave notice of its intention to file a s. 540(7) application to have the complainant’s statement admitted into evidence at the preliminary inquiry, which it did. Defence brought a responding s. 540(9) application seeking to cross-examine the complainant at the preliminary inquiry.
[7] On March 20, 2023, the focus hearing proceeded before Zivolak J. The defence conceded the Crown’s s. 540(7) motion, so the hearing dealt specifically with the s. 540(9) application, which the Crown opposed to relieve the complainant from having to testify twice. Justice Zivolak granted both applications and the two-day preliminary inquiry was set to proceed before her.
[8] The first available dates for the hearing were October 20 and 27, 2023. Defence counsel was not available for these dates. The next dates offered were January 25 and 26, 2024, which both counsel accepted.
[9] On October 10, 2023, Crown preferred a DI with the consent of the Deputy Attorney General. Defence was notified on October 11, 2023 and followed up requesting reasons. The prosecuting Crown responded, “the direct indictment was requested to address delay issues with the added benefit of relieving the complainant from having to testify twice.”
[10] On March 7, 2024, two rulings were made in respect of this application. First, I dismissed the defence motion for disclosure of the DI package on the basis of solicitor-client privilege protecting the communications between the Attorney General and its Ministers of justice in the field. Tangentially, I ordered that the prosecuting Crown disclose the names of any Crown lawyers with whom the issue of DI had been discussed. Second, I declined to dismiss the application summarily as requested by Crown counsel because the request was premature, the materials having not yet been filed.
[11] At the outset of this application, the Crown raised the issue of the evidentiary threshold on an abuse of process application. In a brief oral ruling, I held that the evidentiary threshold was met, and the hearing would proceed.
[12] For oral reasons provided to the parties at the outset of the substantive arguments at this hearing, the Crown’s motion to quash the subpoenas was granted in respect of the Regional Director of Crown Operations and the Hamilton Crown Attorney and dismissed in respect of the prosecuting assistant Crown, who was called to testify.
[13] The issue of the evidentiary threshold and summary dismissal is addressed in these reasons.
Issue 1: The Evidentiary Threshold
Positions of the Parties:
[14] Crown counsel submits that the proper procedure, for the Court to follow in reviewing an exercise of prosecutorial discretion is as follows – if, and only if, the evidentiary threshold is met by the defence, will the Crown then be given an opportunity to explain the reasons behind their impugned exercise of discretion (this process does not operate in reverse, the defence cannot call Crown to build their evidentiary threshold): see R. v. Delchev, 2015 ONCA 381, 126 O.R. (3d) 267, at para. 49. Such is predicated on the presumption that prosecutorial discretion is exercised in good faith.
[15] In stating that neither avenue for meeting the evidentiary threshold (as per Delchev) is met, the Crown submits that the applicant does not raise concerns over prosecutorial discretion that implicate interests of crucial importance to the proper and fair administration of justice. Further, the Crown asserts the legitimacy of the prosecuting Crown’s concerns regarding Jordan delays and the revictimizing of the complainant, as well as an accused’s lack of right to a preliminary inquiry. There is no actual evidence of bad faith or improper motive in these concerns. Instead, the applicant (in alleging satisfaction of the evidentiary threshold) relies on bald assertions of impropriety based in speculation.
[16] The Crown reminds this Court that some of the allegations made by applicant, in their assertion of evidentiary threshold satisfaction, could only be found within the DI package that has already been deemed privileged by the Court.
[17] The applicant submits it has made out a prima facie case of abuse of process and the Crown is misunderstanding the evidentiary burden at the threshold stage. The threshold is met because there is circumstantial evidence of avoidance of Zivolak J.’s ruling given the “contentious” s. 540(9) application and its outcome, the timing of the DI preferment (approximately six months after the ruling and three months before the preliminary inquiry was set to take place) and the prosecuting Crown’s email as to the reasons behind the decision in light of the presumptive Jordan ceiling in this case.
Legal Principles:
[18] As detailed in Delchev, upon summary and review of R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167 and R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566, there are two avenues to meeting the evidentiary threshold:
52 … First, the threshold evidentiary burden will be met if the accused adduces evidence that the prosecutor exercised its discretion in bad faith or for improper motives: see Anderson, at para. 55.
53 Second, as in Nixon, the threshold may also be met where a discretionary decision is so rare and exceptional in nature that it demands an explanation. Nixon provides the best example of this second type of case… the fact that a plea agreement had been repudiated alone was sufficient to meet the threshold evidentiary burden. Although no evidence of bad faith was provided, the Supreme Court of Canada found that the act of repudiating a plea agreement was "evidence that the Crown has gone back on its word". Because of the importance to the fair and proper administration of criminal justice of ensuring that plea bargains are honoured, repudiation of a plea bargain was a "rare and exceptional event" that demanded an explanation from the Crown…
[19] Detailing the first avenue, the Court in Anderson, at para. 55, set out the following:
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 (S.C.C.), 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.”
[20] Discussing the second avenue, the court in Delchev states,
54 Justice Charron did not set out criteria for determining what else might qualify as a "rare and exceptional event". In my view, the sole criteria cannot be that the decision or type of decision is infrequently made, as unusual decisions may result simply from the nature of a particular prosecution. I would infer from Nixon that a Crown discretionary decision may qualify as a rare and exceptional event when the decision itself raises the court's concern about the Crown's exercise of discretion…
Legal Principles Applied to this Case:
[21] As mentioned, in a brief oral ruling, I found that the applicant met his evidentiary burden at the threshold stage. Specifically, I believed the circumstances of the contentious s. 540(9) application, the timing of the DI, and the prosecuting Crown’s email as to the reasons behind the decision, to provide sufficient evidence (as to warrant further investigation) that the Crown may have exercised its discretion for improper motives.
[22] Ultimately, I deemed the presumption that prosecutorial discretion is exercised in good faith to have been displaced, thus warranting an inquiry into the underlying reasons.
Issue 1: The Subpoenas
Positions of the Parties:
[23] The applicant sought to subpoena the Regional Director of Crown Operations, the Crown Attorney, and the prosecuting assistant Crown attorney to give evidence on the application.
[24] The applicant concedes that the communications between the local Crowns and their counsel, the Attorney General or Deputy Attorney General are subject to solicitor-client privilege. However, communications between the local Crown colleagues in the same office, in the absence of their counsel, are not. In the alternative, if the communications are privileged, that privilege cannot shield against exposure of abuse of process.
[25] Applicant’s counsel submits that the three subpoenas are necessary because only the three Crowns (the Regional Director of Crown Operations, the Crown Attorney, and the prosecuting Crown) can explain the timing of and reasoning behind the decision to prefer the DI in the face of Zivolak J.’s order on the s. 540(9) application, contrary to the Code and the CPM. It would have been a joint decision made after mutual discussions and consultations, and thus, all three individuals have material evidence to give. Defence counsel submits they should not be precluded from obtaining the best available evidence on this application.
[26] Crown counsel responds that defence counsel’s three subpoena requests all go to one of two impermissible purposes – (1) to inquire into the contents of the solicitor-client privileged DI package and communications relating thereto, or (2) to use the Crown’s evidence on cross-examination to meet the evidentiary threshold, contrary to the Delchev procedure.
[27] Crown counsel brought a motion to quash the subpoenas on the basis that the evidence sought is not necessary or relevant, and is subject to solicitor-client and litigation privilege (inclusive of work product protection). Moreover, the Crown submits that the Court’s earlier ruling that the DI package was solicitor-client privileged would preclude the defence from cross-examining the Crowns on most, if not all, of the matters they seek to address. The Crown concludes that the evidence sought to be elicited by defence through the subpoenas could potentially bring cross-examination into a place of conflict with a privilege finding.
Legal Principles:
[28] Generally, issuance of a subpoena requires that the potential witness is likely to have evidence material to the issues in the relevant proceeding; a mere possibility of such evidence does not suffice: see R. v. Abdalla, 2020 ONSC 594, at para. 22. As per R. v. Brown, [1997] O.J. No. 6171 (Ont. S.C.), at para. 11, when a Crown is being subpoenaed under s. 698 of the Code,
… the judicial officer must be satisfied that the person is “…likely…” to give material evidence in the proceeding. It is not sufficient to establish the proposed witness may have admissible evidence to give to the court. Rather, the burden is on the party seeking the subpoena to establish the proposed witness probably has such admissible evidence… Moreover, before any prosecuting counsel of record in a criminal matter can be compelled to testify in the case, the party seeking the subpoena must also establish the probable testimony is necessary… a trial court will be most reluctant to permit counsel conducting a case to be summoned and examined as a witness in the proceedings…
[29] As is noted in Brown, the subpoena issuance test is more stringent when the subject of the subpoena is opposing counsel. There must be extraordinary circumstances and no available alternatives to establish the likely relevance and necessity of the evidence sought: see R. v. Elliott (2003), 2003 CanLII 24447 (ON CA), 181 C.C.C. (3d) 118 (Ont. C.A.), at paras. 114-115; Abdalla, at para. 28; R. v. A.G., 2018 ONSC 3043, at para. 18.
[30] In Elliott, the trial judge permitted the defence to call eight Crown counsel to give evidence on various motions. The Court of Appeal held that the defence counsel's "vague suspicions" that the Crown might provide material evidence did not meet the necessity threshold. Further, the evidence was immaterial because "[i]t related to matters that on any view of the facts could not substantiate an abuse of process.": at paras. 116-117. The Court cited the following passage from R. v. Stupp, Winthrope and Manus (1982), 1982 CanLII 1897 (ON SC), 36 O.R. (2d) 206 (S.C.), on the standard that applies when evidence is sought from opposing counsel:
In my opinion, an accused person should not be permitted to call Crown counsel to conduct a fishing expedition or to examine in the hope that something might turn up that would assist him on the issue; but rather counsel must satisfy the judge that there is a real basis for believing that it is likely the witness can give material evidence. If it is otherwise, preliminary hearings and trials can be interrupted at random; and the administration of criminal justice could be seriously impaired.
[31] Besides necessity and relevance, the evidence must be admissible. The issues of solicitor-client and litigation privilege arise in this case, as the process of pursuing DI involves legal advice both within the Crown’s office and between the Crown’s office and the Attorney General or Deputy Attorney General.
[32] The court in R. v. Ahmad, 2008 CanLII 27470, [2008] O.J. No. 5915 (S.C.) described the principles of solicitor-client privilege in the context of the government, and suggested such privilege can extend to communications between Crowns from the same office in respect of the legal advice provided to the client (at para. 81):
Some of those who contributed to the communication that was sent up the hierarchical chain within the PPSC were line prosecutors involved in this case. That does not disqualify them, in my view, from also wearing the hat of a professional legal advisor to the Deputy Attorney General. It is readily apparent from the contents of the Deskbook and from Ms. Thiessen’s uncontradicted affidavit, that those who contributed to the recommendation package were doing so as professional legal advisors for the purpose of giving legal advice. While as prosecutors they may have wanted the direct indictment, the decision was not theirs to make. They are the professionals on the Crown side most intimately familiar with the case and would naturally be called upon to provide advice.
[33] The applicant cites R. v. Olumide, 2014 ONCA 712, at para. 2; R. v. Power, 1994 CanLII 126 (SCC), [1994] 1 S.C.R. 601, at para. 12; R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 63; Blank v. Canada (Minister of Justice), 2006 SCC 39, 2006 SCC 319, [2006] 2 S.C.R. 319, at paras. 44-45; and Ahmad, at para. 40, in support of its position that privilege does not shield abuse of process.
[34] Olumide, at para. 2, speaks to reviewability of an Attorney General’s authority to direct a stay of proceedings in the event of an abuse of process. Power, at para. 12, addresses the court’s inherent discretionary power to prevent an abuse of process in oppressive or vexatious proceedings. O’ Connor, at para. 63, and Ahmad, at para. 40, speak to the Crown’s duty in respect of disclosure and its relation to the accused’s right to make full answer and defence. Blank, at para. 44, spoke to the litigation privilege and the circumstances in which it can be pierced. Indeed, litigation privilege cannot protect disclosure of information pertaining to the claimant’s abuse of process – “it is not a black hole from which evidence of one’s own misconduct can never be exposed to the light of day”. A party can overcome a claim of privilege on a prima facie showing of actionable conduct.
[35] Solicitor-client privilege is also not absolute, though the bar to displace this protection is higher than in the case of litigation privilege.
[36] At the first stage, the accused must establish some evidentiary basis for the claim that a solicitor-client protected record or communication is relevant to a defence he or she seeks to advance and that it could raise a reasonable doubt as to guilt. If this is established, the trial judge then decides whether the record or communication is likely to raise a reasonable doubt as to guilt such that its disclosure should be ordered in spite of its privileged status. It is worth noting that before a court even embarks on this analysis, the accused must demonstrate that the information sought is not available from any other source: see para. 48.
Legal Principles Applied to this Case:
[37] Where issuance of a subpoena is challenged, the onus is on defence to establish that the proposed witness has material evidence to give: see Elliott, at para. 119.
[38] As mentioned, I granted the Crown’s motion to quash the subpoenas for the Regional Director of Crown Operations and the Crown Attorney, as defence did not establish their necessity or the admissibility of their evidence.
[39] I was satisfied that solicitor-client and litigation privilege are engaged in respect of communications on the DI process involving the Regional Director of Crown Operations and the Hamilton Crown Attorney in this case. And while that privilege does not necessarily extend to all communications involving these parties – I take the defence’s point about communications between Crowns in the same office – Crowns within the same office discussing the position put forward or to be put forward to the Attorney General or the Deputy Attorney General regarding a DI, would presumably attract such privilege. Ahmad suggests as much.
[40] I accept that there are circumstances where privilege can be set aside. However, as held by the Supreme Court in R. v. McClure,2001 SCC 14 at para. 14: “[s]olicitor-client privilege should be set aside only in the most unusual cases. Unless individuals can be certain that their communications with their solicitors will remain entirely confidential, their ability to speak freely will be undermined.” These principles are the same in respect of Crown counsel and their government clients. In this case, the defence does not meet the high bar for displacement of privilege.
[41] If I am wrong on the issue of privilege, the necessity criterion nevertheless prevents me from granting these two subpoenas. The applicant sought to uncover (1) why the DI was sought, (2) at what point in time it was decided that the DI would be pursued, and (3) what the Crown’s understanding was of the operation of s. 577 of the Code and the CPM with respect to the permissible points in a matter where DI could be preferred. To get those answers, it was not necessary to call all three parties. That information would be within the knowledge of the prosecuting Crown attorney who recommended the DI.
[42] Finally, it is noted that the applicant met the evidentiary threshold on their application through the circumstantial evidence on the events that preceded the DI and the prosecuting Crown’s email providing reasons thereafter. It is the prosecuting Crown’s conduct that forms the basis of the application. I thus ruled that the applicant established threshold necessity and relevance with respect to the prosecuting assistant Crown attorney, and allowed cross-examination limited to information that was not protected by solicitor-client or litigation privilege.
Issue 2: Prosecutorial Discretion to Prefer a DI After the Focus Hearing Ruling
[43] The prosecuting Crown made clear that they are only responsible for recommending a DI and that they do not have powers to actually prefer a DI. I find the distinction between “recommend” and “prefer” to be inconsequential for the purposes of this abuse of process application, as both developments occurred after Zivolak J.’s ruling. Both also occurred within the same temporal gap/void, as alleged by defence and discussed in further detail below. The language of prefer will be used throughout my analysis, as it was throughout the parties’ submissions.
Positions of the Parties:
[44] The applicant submits that the Crown did not have proper discretionary jurisdiction to have the DI preferred, as s. 577 of the Code and D-9 of the CPM do not authorize such an action after an accused has elected to have a preliminary inquiry but before the preliminary inquiry has commenced.
[45] Counsel bases the above submission on the notion that an accused’s election triggers their statutory right to a preliminary inquiry. The language, both within the Code and the CPM, suggests a signal from Parliament to the Crown, that a DI preferment must be completed early – otherwise an accused who elects to have a preliminary inquiry is operating with the intention of having the inquiry and preparing for it, only to then have the “rug pulled out from under them.” Ultimately, the temporal ‘void’ between an accused’s election and the start of the inquiry is not “artificial” as alleged by Crown – instead such accounts for the statutory rights of the accused.
[46] The Crown responds that defense’s contentions regarding the temporal space/void between an accused’s election and the start of the preliminary inquiry are irrelevant, as the focus hearing is an integral part of the preliminary inquiry process. Thus, when the DI was preferred, the preliminary inquiry had already begun for the purposes of s. 577.
[47] Further, the Crown submits that if they were restricted in their DI powers at the stage of the focus hearing, this would create an “artificial void” – i.e., what reason is there for the Crown to sit and wait on a DI until the start of the preliminary inquiry. The Crown contends that if a DI can be preferred after an accused is discharged following a preliminary inquiry (as in R. v. Ordonio, 2018 ONSC 6029 (unreported); R. v. Bromfield, [2017] O.J. No. 6258; R. v. Srianandan, 2019 ABQB 805), surely, it has discretion to pursue a DI in the face of a preliminary inquiry judge’s ruling.
[48] The Crown also cites R. v. Shaw, 2019 ONSC 3283, where a DI was preferred after a preliminary inquiry had been scheduled but had not yet begun. As a result, defence was not able to discover a key witness at the inquiry. The Crown’s reasoning for the DI was concern over delay and the Jordan ceiling. The defence argued the progress of the matter suggested there was an oblique motive. Justice Clark dismissed the accused’s request for disclosure of the DI package in the context of an abuse of process application. He found that the Crown’s conduct fell within the normal scope of prosecutorial discretion, that s. 577 of the Code permitted the Crown to seek DI even where no preliminary inquiry was held, and that the defence had not met its evidentiary burden. Justice Clark stated, “[i]n relation to the facts before me, s. 577 of the Code confers upon the Attorney General the right to prefer an indictment even where no preliminary inquiry has been held; that decision is an exercise of prosecutorial discretion.”: at para. 21.
[49] The applicant responds that Shaw misapplied Anderson and thus should not be relied upon. More specifically, Anderson, at para. 44 spoke generally to DI decisions as a matter of prosecutorial discretion and did not stand for the proposition that Crown is authorized to pursue DI after a preliminary inquiry has been scheduled but before it has commenced.
[50] Both parties made reference to the legislative summary of s. 577 provided by the defence. It reads,
Under section 577 of the Code, the Attorney General may file an indictment, personally and in writing, despite the fact that the accused has not had the opportunity to request a preliminary inquiry, whether the preliminary inquiry has started or has not yet been completed or a preliminary inquiry has been held and the accused has been discharged.
[51] The Crown argues that this legislative summary is dispositive of the matter. It clearly states that a DI can be preferred before election, or after election and prior to the start of the preliminary inquiry. On the Crown’s interpretation, a DI can be preferred at any time during the continuum of a criminal matter in the lower court (if a preliminary inquiry is requested) before it gets to the Superior Court. The applicant responds that the Crown misreads the legislative summary, which in fact reflects the restricted powers outlined in s. 577.
Legal Principles:
[52] Central to the parties’ arguments is the issue of whether or not the focus hearing constitutes part of the preliminary inquiry.
[53] Section 577 of the Code specifies the points in a matter at which a DI can be preferred. The section reads,
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; or
(b) in any other case, a judge of the court so orders.
[54] The CPM mirrors s. 577. The Crown can seek a DI (1) before an accused has requested a preliminary inquiry, (2) after the preliminary inquiry has started but before it has concluded, and (3) after the preliminary inquiry has been held and the accused has been discharged. The CPM sets out factors for a prosecutor to consider in determining whether to pursue DI. They include, but are not limited to,
• delay that could result in breach of s. 11(b);
• the physical and psychological health of victims and witnesses;
• the challenge of having vulnerable victims and witnesses testify more than once; and
• where an accused has been wrongly discharged following a preliminary inquiry.
[55] Focus hearings are provided for in s. 536.4 of the Code. Their purpose is to facilitate a fair and expeditious preliminary inquiry by assisting the parties with identifying the issues to be addressed, witnesses to be called, and any other matters relevant to the inquiry. The Ontario Court of Justice has issued a related Notice to the Profession regarding focus hearings. The relevant Code section reads,
536.4 (1) The justice before whom a preliminary inquiry is to be held may order, on application of the prosecutor or the accused or on the justice’s own motion, that a hearing be held, within the period fixed by rules of court made under section 482 or 482.1 or, if there are no such rules, by the justice, to
(a) assist the parties to identify the issues on which evidence will be given at the inquiry;
(b) assist the parties to identify the witnesses to be heard at the inquiry, taking into account the witnesses’ needs and circumstances; and
(c) encourage the parties to consider any other matters that would promote a fair and expeditious inquiry.
[56] In Ahmad, the Crown had a DI preferred while the preliminary inquiry was underway, and after an agreement had been reached between the parties at the focus hearing narrowing the issues for the preliminary inquiry, pursuant to s. 536.5 of the Code. Ruling on the abuse of process issue, Dawson J. analyzed the legislative context surrounding the agreement, including s. 536.4 (which provides for focus hearings), and concluded that the purpose of these provisions was to “expedite, streamline, and manage the conduct of the preliminary inquiry”: see para. 34.
[57] Additionally, in Ahmad, the preliminary inquiry commenced on June 4, 2007, and by the end of July, it appeared to be extending far beyond the initial time estimates. The presiding judge ordered counsel to prepare for a further focus hearing to discuss timing for conclusion of the preliminary inquiry. As put by Dawson J., “[h]e was so concerned about the pace and proper conduct of the hearing that he exercised his discretion to convene a further focus hearing to work co-operatively with counsel.” A focus hearing was indeed held in the midst of the preliminary inquiry. The progress of the matter in Ahmad suggests that focus hearings are not restricted to pre-preliminary inquiry, though such appears to be the ordinary order of events.
Legal Principles Applied to this Case:
[58] The Crown’s submission that the DI power can be exercised before election, or after election and before the start of the preliminary inquiry, renders the distinction between the first two permissible time points set out in the Code (i.e., pre-election and post-commencement of the preliminary inquiry) meaningless.
[59] It is true that the case of Shaw in its reference to Anderson does not establish definitively the Crown’s power to pursue DI at the relevant time. Neither of those cases are authority for the proposition.
[60] The applicant makes a compelling argument for the rationale behind the “gap” in the Crown’s DI powers in recognition of the accused’s rights.
[61] However, I cannot accept his position on this point. The Code signals that the preliminary inquiry encompasses the focus hearing process. The focus hearing judge conducts the preliminary inquiry hearing. Besides the Code, several cases, including Ahmad, support the notion that to distinguish the operation of the Crown’s DI powers after the focus hearing from their powers after the start of the preliminary inquiry, would be to draw an artificial distinction between two elements of one continuous process.
[62] Additionally, in R. v. Ali, 2015 ONCJ 765, Paciocco J. (as he then was) analyzed the legislative purpose behind s. 540 of the Code, and the applicable rules of evidence. He went on to state that s. 540 applications “form part of the preliminary inquiry.”: see Ali at para. 38.
[63] While the focus hearing and the preliminary inquiry are set out in two separate provisions, this distinction is inconsequential for the purposes of interpreting s. 577. I find that these processes are functionally intertwined such that the focus hearing and other such procedures set out in s. 536 fall under the umbrella of the preliminary inquiry and do not have utility outside the realm of the preliminary inquiry. I adopt the reasoning in Ahmad: their purpose is to streamline and manage the conduct of the preliminary inquiry.
[64] Finally, the impact on an accused is the same if the Crown waits until the preliminary inquiry officially starts before pursuing a DI, which is unquestionably in line with s. 577 and the CPM. If the gap was an intentional choice on the part of Parliament, seeking to protect an accused’s statutory right to a preliminary inquiry and defence needlessly preparing for the inquiry, the Code would not authorize the Crown to prefer a DI after a preliminary inquiry has already commenced.
[65] Deciding as I have, that the focus hearing is an integral part of the preliminary inquiry, it follows that the Crown was acting within its jurisdiction when it pursued the DI in this case, both on a statutory threshold and in conformance with the CPM.
[66] Nevertheless, it is still necessary to move to the abuse of process inquiry. Even where a prosecuting Crown has jurisdiction to exercise its discretion, such can still amount to an abuse of process: see Anderson, at para. 63; R. v. Lloyd, 2024 ONSC 3757, at paras. 17-18.
Issue 3: Whether a Stay of Proceedings is Warranted in the Circumstances:
[67] Having established that the evidentiary threshold on the abuse of process application was met and that the prosecuting Crown had material evidence to give on the application that would not be subject to privilege, the assistant Crown attorney was called to testify.
[68] On cross-examination, she described the events that preceded the DI. At the focus hearing, the Crown made a s. 540(7) application to have the complainant’s statement admitted so she would not have to testify twice, at the preliminary inquiry and again at trial. The reasons offered for this were efficiency and the vulnerability of the complainant. The defence conceded the Crown’s application and brought a responding s. 540(9) application seeking to cross-examine the complainant on the statement. Justice Zivolak granted both applications on March 20, 2023. The assistant Crown attorney testified that while it was not the result she hoped for, there was no mechanism to have the order reviewed, and she was intent on proceeding with the preliminary inquiry.
[69] However, notwithstanding that the date for the preliminary inquiry was set for ten months out, January 2024, almost immediately following Zivolak J.’s ruling, the assistant Crown attorney took steps to have a DI preferred. Defence counsel was notified on October 11, 2023. The assistant Crown attorney testified to having made the decision to pursue DI within a week or so of Zivolak J.’s ruling being delivered. She testified that she was familiar with the CPM guidance in respect of the permissible timing of DI preferment and testified that she was acting in accordance with policy because the focus hearing is a part of the preliminary inquiry, and s. 540 litigation is recognized as part of the preliminary inquiry.
[70] I pause to observe that the Crown is not obliged to provide a foundation for its exercise of discretion to prefer a DI. However, in this particular case, the assistant Crown attorney did so and notified defence counsel of such rationale.
[71] To this point, the assistant Crown attorney was questioned about her reasoning for pursuing the DI, specifically on her concerns over delay and the added benefit of not requiring the complainant to testify twice. The assistant Crown attorney elaborated that it was in the Crown’s interest to move the matter along given the potential risk of a stay application (in the context of serious criminal charges) if the Jordan ceiling was breached per s. 11(b) of the Charter, and concern over witness’ fading memories. She testified that the preliminary inquiry was set for two days in January 2024 and that by the time the matter was out of the Ontario Court of Justice it would likely be scheduled for trial in the Superior Court of Justice within a year, bringing them outside the 30-month Jordan ceiling.
[72] Frankly, I am not satisfied in the least regarding the Crown’s assertions and concerns about “delay” in order to substantiate the request for the DI. As the Local Administrative Judge and conducting most of the Superior Court Criminal Assignment Courts in Hamilton, I take judicial notice that even if the preliminary inquiry had proceeded in January 2024, dates for trial in the Superior Court would have been provided well before the Jordan timelines in this case. In fact, other trial dates sought in the Spring and Summer of 2024 have been set for the Fall of 2024. Moreover, had there been a valid concern, the Crown could have readily contacted the Trial Coordinator to advise that delay was at issue, and this Court would accommodate the scheduling of the hearing, subject to counsel’s availability.
[73] In my opinion, there is absolutely no merit to the Crown’s concerns and stated rationale related to the potential delay in this case in order to substantiate the DI. Clearly the Crown’s only real intention and focus was directed to avoid the complainant from having to testify twice.
[74] On its face, the Crown’s actions to seek a DI to avoid the unfavourable ruling from the preliminary inquiry judge does not augur well for the appearance of the administration of justice. Arguably, it appears to be an end run of a judicial edict flowing from the contested focus hearing.
[75] On this basis, the applicant raises a valid and compelling concern. However, does the Crown’s conduct in this case rise to the level as to find an abuse of process as it is interpreted in the jurisprudence? If so, is there a remedy?
Positions of the Parties:
[76] The Crown submits that neither main category nor the residual ‘Babos’ categories of abuse of process warranting a stay of proceedings has been successfully satisfied: R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309. Further, in applying the Babos test, which is the same for both category of alleged abuse, defence has neither established the prejudice required under stage one of the test, nor the propriety of a stay under stage three.
[77] In deeper consideration of the two categories of abuse of process that warrant a stay of proceedings, Crown counsel submits that the main category of abuse, that relating to trial fairness, is not engaged. Such is predicated on the facts that (a) the accused’s upcoming trial has not been compromised (i.e., there is no ongoing unfairness) and (b) the remedies that would address trial unfairness, such as ordering a new hearing, would have no relevance to the circumstances before the Court. Considering the residual category of abuse, Crown states that the effect of bypassing a preliminary inquiry by obtaining a DI does not prejudice the integrity of the justice system in any way, let alone in such a way that will be “manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome.”
[78] The applicant contends that the Crown’s improper preferment of the DI falls into the residual category of state conduct, as per Babos, that undermines the fairness and integrity of the judicial system. To that end, counsel reiterates that by pursuing a DI after a “contentious” focus hearing and after a preliminary inquiry was already scheduled, the Crown breached s. 577 of the Code and the CPM, and used its discretion to unilaterally override a valid, binding ruling and order of the Ontario Court of Justice. Such action undermines the integrity of the justice system, is a violation of the accused’s s. 7 Charter rights, and warrants intervention of this court.
[79] The applicant refers to a number of cases where exercise of Crown discretion that had the effect of circumventing a rule of law or ruling of a court was held to be an abuse of process. As examples, in R. v. Scheller (1976), 1976 CanLII 1387 (ON CJ), 32 C.C.C. (2d) 273 (Ont. Prov. Ct.), Crown sought an adjournment and after being denied withdrew the charges only to re-lay them at a later date. In R. v. Cole, [1998] N.S.J. No. 245 (S.C.), the Crown stayed charges against a co-accused after a successful appeal. The other co-accused's appeals were pending at the time. When those appeals were dismissed, the Crown re-laid the charges against the first co-accused.
[80] In R. v. Parkin (1986), 1986 CanLII 4640 (ON CA), 28 C.C.C. (3d) 252 (Ont. C.A.), the Crown became aware that the offence charged did not occur on the date specified in the information and was outside of the limitation period for proceeding summarily. To bypass the limitation period issue, the Crown laid a new information at trial and proceeded by indictment. See also R. v. Tingley, 2015 NBCA 51.
[81] The applicant submits that the impugned conduct here is the same as that described in the jurisprudence cited – the Crown is circumventing a ruling of the court – and should thus be found to be an abuse of process.
Legal Principles:
i. Basic principles for a finding of abuse of process.
[82] Referral of a DI is recognized as a core element of prosecutorial discretion going to the nature and extent of the prosecution and the Attorney General’s participation in it: R. v. Anderson, 2014 SCC 41, at para. 44. Such exercises of prosecutorial discretion are subject to judicial review only on the basis of abuse of process: Anderson, at para. 63; R. v. Lloyd, 2024 ONSC 3757, at paras. 17-18.
[83] Considering the procedure to be followed, when engaging in a review of prosecutorial discretion, the Court in Delchev, at para. 55 state the following:
Meeting the threshold evidentiary burden is of course only the first step that an accused faces in proving an abuse of process. If the threshold burden is met, the Crown is given an opportunity to explain the reasons behind its exercise of discretion. If no explanation is forthcoming, an adverse inference may be made against the Crown. The burden remains on the accused to establish an abuse of process on a balance of probabilities. Even if an accused establishes an abuse of process, a stay will only be warranted in "the clearest of cases".
The above process is affirmed in R. v. Codina, 2018 ONSC 1096, at para. 26.
[84] In Anderson, Moldaver J. at paras. 49-50, discussed the high bar that an abuse of process finding must satisfy:
The jurisprudence pertaining to the review of prosecutorial discretion has employed a range of terminology to describe the type of prosecutorial conduct that constitutes abuse of process. In Krieger, this Court used the term "flagrant impropriety" (para. 49). In Nixon, the Court held that the abuse of process doctrine is available where there is evidence that the Crown's decision "undermines the integrity of the judicial process" or "results in trial unfairness" (para. 64). The Court also referred to "improper motive[s]" and "bad faith" in its discussion (para. 68).
Regardless of the precise language used, the key point is this: abuse of process refers to Crown conduct that is egregious and seriously compromises trial fairness and/or the integrity of the justice system…
[85] Babos is cited as the leading case for determination of whether an abuse of process has been made out. It is important to contextualize Babos, as such was borne from a very “narrow issue on appeal [being] whether the trial judge erred in granting a stay of proceedings.”: see para. 29. In light of this very narrow issue, the Court recognized that:
30 A stay of proceedings is the most drastic remedy a criminal court can order (R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297 (S.C.C.), at para. 53). It permanently halts the prosecution of an accused. In doing so, the truth-seeking function of the trial is frustrated and the public is deprived of the opportunity to see justice done on the merits. In many cases, alleged victims of crime are deprived of their day in court.
31 Nonetheless, this Court has recognized that there are rare occasions — "the clearest of cases" — when a stay of proceedings for an abuse of process will be warranted (R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411 (S.C.C.), at para. 68). These cases generally fall into two categories: 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) (O'Connor, at para. 73)…
32 The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:
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);
There must be no alternative remedy capable of redressing the prejudice; and
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).
[86] In relation to the residual category, and its application to the para. 32 test, the Court in Babos stated the following:
38… regardless of the type of conduct complained of, the question to be answered at the first stage of the test is the same: whether proceeding in light of the impugned conduct would do further harm to the integrity of the justice system… The court must still consider whether proceeding would lend judicial condonation to the impugned conduct.
39 At the second stage of the test, the question is whether any other remedy short of a stay is capable of redressing the prejudice. Different remedies may apply depending on whether the prejudice relates to the accused's right to a fair trial (the main category) or whether it relates to the integrity of the justice system (the residual category). Where the concern is trial fairness, the focus is on restoring an accused's right to a fair trial. Here, procedural remedies, such as ordering a new trial, are more likely to address the prejudice of ongoing unfairness. Where the residual category is invoked, however, and the prejudice complained of is prejudice to the integrity of the justice system, remedies must be directed towards that harm. It must be remembered that for those cases which fall solely within the residual category, the goal is not to provide redress to an accused for a wrong that has been done to him or her in the past. Instead, the focus is on whether an alternate remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward.
40 Finally, the balancing of interests that occurs at the third stage of the test takes on added significance when the residual category is invoked. This Court has stated that the balancing need only be undertaken where there is still uncertainty as to whether a stay is appropriate after the first two parts of the test have been completed Tobiass, at para. 92. When the main category is invoked, it will often be clear by the time the balancing stage has been reached that trial fairness has not been prejudiced or, if it has, that another remedy short of a stay is available to address the concern. In those cases, no balancing is required. In rare cases, it will be evident that state conduct has permanently prevented a fair trial from taking place. In these "clearest of cases", the third and final balancing step will often add little to the inquiry, as society has no interest in unfair trials.
41 However, when the residual category is invoked, the balancing stage takes on added importance. Where prejudice to the integrity of the justice system is alleged, the court is asked to decide which of two options better protects the integrity of the system: staying the proceedings, or having a trial despite the impugned conduct. This inquiry necessarily demands balancing. The court must consider such things as the nature and seriousness of the impugned conduct, whether the conduct is isolated or reflects a systemic and ongoing problem, the circumstances of the accused, the charges he or she faces, and the interests of society in having the charges disposed of on the merits. Clearly, the more egregious the state conduct, the greater the need for the court to dissociate itself from it. When the conduct in question shocks the community's conscience and/or offends its sense of fair play and decency, it becomes less likely that society's interest in a full trial on the merits will prevail in the balancing process. But in residual category cases, balance must always be considered.
ii. Statutory entitlement vs. a constitutionally protected right to a preliminary inquiry.
[87] In written submissions, the Crown claimed that “it is now trite that there is no constitutional right, or absolute ‘statutory right’, to a preliminary inquiry.” In making this point, Crown cites to R. v. Arviv, 1985 CanLII 161 (ON CA), 1985, 51 O.R. (2d) 551, where Martin J.A. held:
[t]he so-called right to a preliminary hearing is not elevated to a constitutional right under the Charter. The ‘right’ to a preliminary hearing under the Code may be displaced by the Attorney-General preferring an indictment under s.507(3) (now s.577(a)) which, as we have previously stated, does not per se contravene s.7 of the Charter.
[88] While I accept that there is no constitutional right to a preliminary inquiry, at the same time I must diverge from the Crown’s assertions. There is a codified, statutory right to a preliminary inquiry, as modified by Parliament. Recall that in determining whether the accused in R. v. R.S., 2019 ONCA 906, had a statutory right to a preliminary inquiry, the Ontario Court of Appeal stated at para. 34,
I turn first to the question of whether the appellants had a statutory right to a preliminary inquiry as of September 19, 2019. Under the repealed legislation, the appellants had elected trial in the Superior Court of Justice, and, as they were entitled to do, requested a preliminary inquiry (ss. 536(2) and (4)). The appellants' request for a preliminary inquiry placed an obligation on the court, subject to the Crown preferring an indictment under s. 577, to hold a preliminary inquiry (s. 536(4)). That obligation was made explicit in s. 535 which provided, in part:
If an accused who is charged with an indictable offence is before a justice and a request has been made for a preliminary inquiry ... the justice shall, in accordance with this part, inquire into the charge ...
[89] While the R.S. case focused on other issues in the face of the revised Code provisions at the time, reducing the eligible offences along with their transitional applicability, the Court of Appeal’s discussion at paras. 47-49 is instructive:
My conclusion that the appellants had acquired a tangible and existing statutory right to a preliminary inquiry as of September 19, 2019, leads to the second question: Is that right itself a substantive right or does it impinge upon, or negatively affect, the substantive rights of the appellants: see Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248, at para. 57; Dineley, per Deschamps J. at paras. 10-11, per Cromwell J., dissenting but not on this point, at paras. 55-59.
I would not characterize the statutory right to a preliminary inquiry as a standalone substantive right. The preliminary inquiry is a process by which the accused may challenge the Crown’s right to proceed to trial and gain information and insights that may assist in the preparation for trial: R. v. Hynes, 2001 SCC 82, [2001] 3 S.C.R. 623, at paras. 30-31; R. v. S.J.L., 2009 SCC 14, [2009] 1 S.C.R. 426, at paras. 21-23. The preliminary inquiry is part of a broader criminal process applicable to some indictable offences. There is no vested right to a particular procedure. Changes to, or the elimination of, some part of the process cannot be equated with the removal of a substantive right.
Although I would not describe the right to a preliminary inquiry as itself a substantive right, I am satisfied that the elimination of the preliminary inquiry does affect a substantive right of the appellants. That right lies in the appellants’ entitlement to be discharged at a preliminary inquiry if the Crown cannot meet its evidentiary burden: Criminal Code, s. 548(1)(b); R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828.
[90] Further, I am persuaded that the assertion in R. v. Hersi, 2014 ONSC 1211, at para. 19, to the effect that an accused does not have a statutory right to a preliminary inquiry, to be displaced by the Court of Appeal in R.S.
[91] On this very point, also see my recent ruling in R. v. K.F., 2023 ONSC 4410, at paras. 166-168.
[92] Ultimately, while the right to a preliminary inquiry is not constitutionally protected, it is still important to recognize that such an entitlement is statutorily enabled, where applicable, and does affect an accused’s substantive rights.
Legal Principles Applied to this Case:
[93] Given the narrow issue on which Babos arose, the test at para. 32 is applicable where defence has – to a large extent – clearly satisfied their burden in making out an abuse of process. In such cases, the court would then turn to the appropriate remedy, considering whether such warrants a stay. The consideration of appropriate remedies in is delineated in branch two of the Babos test (i.e., the potential presence of alternative remedies).
[94] Here, in applying the requisite test, I cannot find that the applicant has established the authoritative legal basis for an abuse of process. In coming to such a conclusion, I note the prosecutorial Crown’s exercise of discretion and reliance on the CPM and internal directives. Of greater significance, in analyzing this case, I adopt the language employed in Anderson when describing an abuse of process – namely, "flagrant impropriety"; that which "undermines the integrity of the judicial process"; that which "results in trial unfairness"; "improper motive[s]"; and "bad faith".
[95] While I still remain critical of the Crown’s rationale and explanations in seeking the DI in the face of Zivolak J.’s order; in my opinion, it does not give rise to the level of flagrant impropriety", that which "undermines the integrity of the judicial process". It seems to me that the legislation and prevailing jurisprudence provides for the discretion that it is within the Crown’s absolute purview in relation to the preferment of the DI in this case. As such, I would dismiss the application and order no remedy.
[96] However, for greater clarity, I must briefly return to the residual Babos test, which was part of the focus of this segment of the application. Recall that the main category under Babos is inapplicable in the current circumstances.
[97] I find that on the first stage of the requisite Babos test, proceeding in this case with the DI having been preferred would not harm the integrity of the justice system. As referenced earlier in these reasons, the Crown has discretion to prefer DI within the preliminary inquiry process, which may result in displacing the accused’s statutory right to a preliminary inquiry. According to the evidence of the prosecuting Crown attorney, the CPM and internal Crown directives were considered and followed. Recall that there is no obligation on the Crown to provide rationale for seeking a DI.
[98] In relation to the next stage of Babos, the applicant suggested the alternative remedy of a discovery process. While I need not delve further into the analysis, to address the impropriety of such a remedy, I note the following from Babos, at para. 39:
… It must be remembered that for those cases which fall solely within the residual category, the goal is not to provide redress to an accused for a wrong that has been done to him or her in the past. Instead, the focus is on whether an alternate remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward.
Conclusion:
[99] As explained in these reasons, the subpoenas sought by the applicant for this application in relation to the Regional Director of Crown Operations and the Hamilton Crown Attorney were quashed.
[100] Following a ruling from the contested focus hearing, which directed a preliminary inquiry on the eligible offence, the Crown took immediate steps to seek and successfully prefer a DI from the Attorney General or his designate.
[101] It is readily accepted that the Crown is not obliged to provide its foundation or rationale in support of its decision-making process in seeking a DI.
[102] Yet, in this case, the prosecuting Crown attorney provided information to applicant’s counsel regarding the reasons for seeking the DI. Having done so, on its face, the justification or explanations provided to counsel raised some valid questions as to the propriety of the Crown’s decision making process.
[103] Nevertheless, the Crown acted within its inherent authority as afforded by Parliament, the Code and CPM policy. In recognition of the ultimate constitutional responsibility of Attorneys General, the Crown has the discretion to seek and prefer a DI following a focus hearing - which is a part of the preliminary inquiry process, or at other designated occasions during the prosecution of its case.
[104] Notwithstanding my serious misgivings regarding the motivation and rationale engaged by the Crown to seek and prefer a DI in these circumstances; I am not persuaded this conduct rises to the level that engages flagrant impropriety, which risks undermining the integrity of the judicial process, or results in trial unfairness.
[105] Therefore, the abuse of process application is dismissed.
A.J. Goodman J.
Date: December 19, 2024
COURT FILE NO.: CR-23-809
DATE: 2024-12-19
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
DEJENAY GENERAL
Applicant
RULING WITH RESPECT TO APPLICATION FOR AN ABUSE OF PROCESS
A.J. GOODMAN J.
Released: December 19, 2024