Court File and Parties

Court File No.: CR-25-10000036-00AP Date: 2025-07-28 Ontario Superior Court of Justice

Between: His Majesty the King – and – Andrew David Douris

Counsel: D. Hogan, for the Crown A. D. Douris, self-represented

Heard: 13 June 2025

S.A.Q. Akhtar J.

Application Seeking Leave to Extend Filing Time

Background Facts

The Initial Allegations

[1] The applicant met Ms. Anna Fong in February 2020 and they casually dated until June 2020. At this time, the applicant told Ms. Fong he had become romantically involved with someone else and ended their relationship.

[2] Ms. Fong subsequently began sending him unwanted text messages from different phone numbers. On 22 August 2020, Ms. Fong reported to the police that she had been assaulted, threatened, and harassed by the applicant. When police attended the applicant's home on 23 August 2020, he was not present.

[3] On 24 August 2020, Ms. Fong recanted the allegations. The applicant was told about the allegations on 24 August 2020. No further action was taken and the matter was regarded as closed.

[4] On 26 July 2024, the applicant sought a private information alleging public mischief to be sworn against Ms. Fong at a pre-enquête hearing. The presiding Justice of the Peace issued process which the attending Crown counsel, Mr. Poon, did not oppose.

[5] On 13 December 2024, the Crown Attorney for Toronto Central office, Ms. Anna Stanford, wrote to the applicant explaining the Crown's decision to withdraw the charges against Ms. Fong. Ms. Stanford indicated that:

On January 22, 2025, as is its prerogative, the Crown will be intervening to withdraw this charge against Ms. Fong. The allegations against her date back to 2020 and early 2021 - fully 4 years ago. There is no indication in the materials that the criminal behaviour that you describe continued past that time. Indeed, I expect that if it had, you would have provided details of said behaviour.

It is my view, given the time that has elapsed between the alleged offence dates and process being issued, Ms. Fong's background, the nature of the allegation and our assessment of the strength of the case, it is not in the public interest to proceed with this charge.

[6] The applicant responded on 16 December 2024 objecting to the withdrawal and arguing that it was in the public interest to proceed.

[7] On 22 January 2025, the Crown withdrew the charges in court. The applicant did not attend the hearing.

[8] On 8 April 2025, the applicant attempted to file a Notice of Application to quash the Crown's decision by way of certiorari and seeking mandamus to compel the Crown to recommence the prosecution. The filing deadline for the application was 30 days after the withdrawal date and since it had expired, the Crown declined to accept service.

[9] On 21 May 2025, the applicant filed an application seeking leave to extend the time to file a Notice of Application. The Crown opposes the application.

Should the Applicant Be Given Leave to Extend the Time to File?

The Test for an Extension of Time

[10] Pursuant to r. 40.05 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7, a party has 30 days to appeal from the order that is challenged. Rule 40.03 allows a judge to extend or abridge that deadline upon application.

[11] The power to grant or refuse an extension of time to appeal is discretionary and not one that arises as of right: R. v. Roberge, 2005 SCC 48, [2005] 2 S.C.R. 469, at para. 6; R. v. Menear, 162 C.C.C. (3d) 233 (Ont. C.A.), at para. 20.

[12] In R. v. Closs, 105 O.A.C. 392, Carthy J.A., in chambers, at para. 8, commented on the rarity of granting orders that extend time to appeal and stated:

It is my view that such orders should be made only in exceptional circumstances where there is a real concern that an injustice may have occurred. There are many negative consequences of having a criminal conviction and it cannot be expected that these will all be explained to an accused prior to a plea; nor should the convicted person expect the judicial system to provide a fresh start when a surprising consequence of the conviction is encountered. We must have finality except where the demands of justice dictate otherwise.

[13] In Menear, at para. 20, the court provided the following three factors to consider when deciding whether an extension of time is justified:

(1) Has the applicant shown a bona fide intention to appeal within the appeal period;

(2) Has the applicant accounted for or explained the delay; and

(3) Is there merit to the proposed appeal.

[14] This list is not exhaustive and the court "may take into considerations other factors such as whether the consequences of the conviction are out of all proportion to the penalty imposed, whether the Crown will be prejudiced and whether the applicant has taken benefit from the judgment. In the end, the main consideration is whether the applicant has demonstrated that justice requires the extension of time be granted": Menear, at para. 21; R. v. Ansari, 2015 ONCA 891, 337 O.A.C. 207, at para. 23.

Bona Fide Intention to Appeal Within the Appeal Period and the Delay in Filing

[15] Turning to the first two limbs of the Menear test, the applicant claims that he did not file within the requisite 30 day period because he only became aware of the withdrawal at the beginning of April 2025 and filed at the end of that month.

[16] This is clearly not the case. As noted above, on 13 December 2024, the Crown informed the applicant of its intention to withdraw the charges against Ms. Fong on 22 January 2025. The applicant acknowledges this fact in his arguments. However, he submits that his responses to the letter were being considered and concluded the Crown was considering his input and proposed resolution because he did not hear back from the Crown after 22 January 2025.

[17] I do not accept this argument. The applicant had been told of the Crown's intention to withdraw on 22 January 2025. He chose not to attend court on that date to confirm the Crown's actions. The fact that the Crown did not respond to his proposed input could not amount, with the reasons given, to an indication that it had changed its mind or was delaying its decision. Once notice was given to the applicant, it was his responsibility to act appropriately by, for example, attending court on 22 January 2025 to confirm that the Crown had withdrawn the charges as it had told him it would.

[18] Nor is there anything in the applicant's materials to explain the delay in filing the Notice of Appeal on 8 April 2025 – over two months after the date that he had been notified that the charges would be withdrawn. His argument that he believed the Crown might have not withdrawn the charges on the specified date is undermined by his own correspondence to the Crown on 22 February 2025. There, he wrote to the Crown stating his belief that all of the charges against Ms. Fong had been withdrawn and requesting information "IMMEDIATELY on what the resolution to the charges were so I can pursue my notice of application in the Superior Court of Justice…I want a response so I can file my NOA."

[19] This communication shows that the applicant knew the charges had been withdrawn when he wrote to the Crown on 22 February 2025. Nor is it clear why the applicant was asking for information on how the charges were withdrawn when the Crown had already told him in its letter of 13 December 2024.

[20] One might infer that if the applicant had really formed an intention to appeal within the required time period, he would have attended court on 22 January 2025 to witness the withdrawal, hear the Crown put its reasons on the record, and confirm it had been done. Instead, he chose not to attend. Having realised the matter had been "resolved" at least by 22 February 2025, the applicant has not provided any credible explanation for why he waited until April 2025 to file a Notice of Application.

[21] I find that the applicant has not shown a bona fide intention to appeal within the specified time period or provided an explanation for the delay in filing.

[22] I turn next to the merits of the application: the allegation of an abuse of process by the Crown.

Was There an Abuse of Process?

Deference to the Crown's Discretion

[23] It is trite law that the Crown's prosecutorial discretion can only be judicially reviewed if a party can establish its conduct constitutes an abuse of process: R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167. In Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372, the Supreme Court of Canada found that the "core" elements of prosecutorial discretion could only be reviewed if the actions of the prosecutor amounted to such circumstances of flagrant impropriety or in actions for malicious prosecution: at para. 49.

[24] In Anderson, the court appeared to expand the scope of prosecutorial decisions that could only be challenged on an abuse of process basis by eliminating the distinction between "core" and "non-core" elements of prosecutorial discretion. After acknowledging the comments in Krieger and the narrow definition of prosecutorial discretion set out in that case, the court in Anderson commented, at para. 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.

[25] The court clarified the confusion over the terminology of "core" and "non-core" that might have arisen in cases such as R. v. Gill, 2012 ONCA 607, 112 O.R. (3d) 423, at paras. 50-51:

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. Crown decisions motivated by prejudice against Aboriginal persons would certainly meet this standard.

In sum, prosecutorial discretion is reviewable solely for abuse of process. The Gill test applied by the Newfoundland and Labrador Court of Appeal was developed at a time when courts were struggling with the post-Krieger "core" versus "outside the core" dichotomy. To the extent the Gill test suggests that conduct falling short of abuse of process may form a basis for reviewing prosecutorial discretion, respectfully, it should not be followed. [Emphasis added.]

[26] See also: R. v. Mivasair, 2025 ONCA 179; Re Ontario (Attorney General) v. Doug Lloyd, 2025 ONCA 307, at para. 5.

Is There Any Merit in the Abuse of Process Argument?

[27] As described, the review of Crown prosecutorial discretion is only possible when there is evidence that the Crown's conduct is "egregious and seriously compromises trial fairness and/or the integrity of the justice system": Anderson, at para. 50. The conduct that will give rise to an abuse of process has been described as "flagrant impropriety" and "egregious and seriously compromises the fairness of trial proceedings or undermines the integrity of the justice system": Perks v. Ontario, 57 O.T.C. 21, at para. 8, aff'd (1998), 116 O.A.C. 399; R. v. Glegg, 2021 ONCA 100, at para. 41. This is a very high standard.

[28] The burden of establishing an abuse of process on a balance of probabilities falls on the party alleging it: Anderson, at para. 52.

[29] Here, the applicant alleges a myriad of complaints which include: his perceived view that Crown counsel had not properly reviewed the documents; his interaction with Crown counsel, Henry Poon, who attended the pre-enquête in which process was issued; the manner in which the Crown Attorney, Ms. Stanford, came to the decision to withdraw the charge; and the fact that Ms. Stanford failed to confirm that the charge had been withdrawn.

[30] The applicant argues that, collectively, this conduct appears to be "a textbook example of abuse of process in relation to nearly all descriptions of this doctrine given by the courts in the private prosecution case law".

[31] Most troublingly, the applicant has included his transcription of a conversation with Mr. Poon in the courtroom, recorded secretly, prior to the commencement of the pre-enquête hearing. The actual recording was not played in court. A courtroom recording is prohibited without the leave of the court and notice to all parties. This should not have been done and the applicant is well advised not to do so in any legal proceedings that he may be involved with in the future.

[32] Despite this conduct, I have reviewed what the applicant says is the content of a dialogue between himself and Mr. Poon. I would not characterise it in the same manner as the applicant. In the transcript - if accurate - Mr. Poon did nothing wrong except explain the Crown's potential position to the applicant. The applicant's complaints and assertion of improper motive are significantly undermined by the fact that Mr. Poon ultimately agreed that there was a basis to issue process.

[33] The applicant's other complaints - such as the Crown making a decision to discontinue the prosecution without seeking his input or providing confirmation that the charges had been withdrawn - do not constitute acts of "flagrant impropriety". After being informed of the decision, the applicant wrote to the Crown putting forward his position. In other words, the applicant did provide input. The Crown was not obliged to accept that input.

[34] Nor did the Crown need to formally confirm that the charges had in fact been withdrawn on 22 January 2025; the Crown had already indicated its decision on 13 December 2024. Moreover, this was a decision that the Crown was entitled to make unilaterally.

[35] Tellingly, the applicant admits that he did not "wish for a trial for Ms. Fong's crimes". At the pre-enquête hearing, the applicant told the court that "if process were to be issued, he would be happy with a resolution of a withdrawal under the condition she came to court and admitted everything she claimed [in her report] was a lie".

[36] It is not for this court to determine whether the Crown's decision was correct. It is trite law that a "wrong" decision is not an abuse of process: the Crown has a right to be wrong in exercising its discretion. See, for example, Pereira v. Attorney General of British Columbia, 2023 BCCA 31, 477 D.L.R. (4th) 594, at para. 54, where the court held that it was not the role of an application judge hearing a certiorari and mandamus application alleging abuse of process to determine whether the Crown had conducted a charge assessment decision in a negligent fashion.

[37] In the recent case of R. v. Brunelle, 2024 SCC 3, 92 C.R. (7th) 219, at paras. 27-28, the Supreme Court of Canada set out the parameters for the finding of an abuse of process:

The law on abuse of process is well settled. The "key point" is that abuse of process "refers to Crown conduct that is egregious and seriously compromises trial fairness and/or the integrity of the justice system" (R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 50). As the preceding passage suggests, two types of state conduct meet the threshold for establishing abuse of process: conduct that compromises trial fairness ("main category") and conduct that, without necessarily threatening the fairness of the accused's trial, nevertheless undermines the integrity of the justice system ("residual category") (Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, at para. 89; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 55; R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566, at para. 36; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31; see also Brind'Amour v. R., 2014 QCCA 33, at para. 53).

While there is no actual "right against abuse of process" in the Charter, different guarantees will be engaged depending on the circumstances (R. v. O'Connor, [1995] 4 S.C.R. 411, at para. 73). Abuse of process in the main category engages the Charter provisions aimed primarily at protecting trial fairness for accused persons, namely ss. 8 to 14, as well as the principles of fundamental justice set out in s. 7. Abuse of process in the residual category, on the other hand, engages only the principles of fundamental justice in s. 7, which protect accused persons from any state conduct that, while not caught by ss. 8 to 14, is nevertheless unfair or vexatious to such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the justice system (O'Connor, at para. 73; Tobiass, at para. 89; Regan, at para. 50; Nixon, at para. 41; Babos, at para. 31). [Emphasis added]

[38] Here, the Crown exercised its right to intervene in the prosecution and explained its decision to the applicant. This was a case in which Ms. Fong had made an allegation against the applicant 4 years prior and promptly withdrew the complaint within two days. Nothing more was done. Even though, as I have said, the court is not concerned with the correctness of the Crown's decision, I cannot say there is anything unreasonable about it.

[39] For these reasons, I find that the applicant has failed to persuade me that justice requires an extension of the time to file his application. It is accordingly dismissed for the reasons set out above.

S.A.Q. Akhtar J.

Released: 28 July 2025