R. v. Mahoney, 2026 ONSC 2511

CITATION: R. v. Mahoney, 2026 ONSC 2511

COURT FILE NO.: CR-25-0336-AP

DATE: 2026-04-28

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

STEVEN MAHONEY

Applicant

Justin McConnell, for the Crown

Michael Hargadon, for the Applicant

HEARD: February 3, 2026, Thunder Bay, Ontario

The Honourable Mr. Justice S. J. Wojciechowski

Reasons for Decision

Introduction

1This application brought by the applicant, Steven Mahoney (“the Applicant”), seeks an order in the nature of certiorari quashing the order issued by Scaramuzza J. of the Ontario Court of Justice on September 4, 2025 compelling the attendance of the Applicant at Nipigon, Ontario for a show cause hearing.

2At the heart of this application is the jurisdiction of a justice of the Ontario Court of Justice to issue a common law peace bond in the face of a decision of the Attorney General to stay a proceeding pursuant to section 579 of the Criminal Code, R.S.C. 1985, c. C-46.

Background

3In May 2023, the Applicant was charged with three counts of trafficking contrary to section 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. He was held in custody from June 6, 2023 until December 15, 2023 when the Crown decided to stay all charges against the Applicant.

4During the course of the proceedings involving the three counts of trafficking, a warrant was obtained on October 23, 2023 to search the Applicant’s cell phone. The results of this search led to the discovery of additional evidence which supported trafficking activities, and the Applicant was arrested again and held in custody for 18 months between February 28, 2024 and September 4, 2025.

5At his arraignment on January 22, 2025, the Applicant entered pleas of not guilty to all charges.

6A voir dire was then held in order to assess the basis for the warrant which granted access to the Applicant’s cell phone. By September 2025, it was clear that there were issues impacting the validity of the warrant, and on September 4, 2025, the Crown directed a stay of the proceedings against the Applicant pursuant to section 579 of the Criminal Code.

7Immediately following the decision of the Crown to stay proceedings, Scaramuzza J. sought to bind the Applicant to a common law peace bond. The Applicant, through counsel, argued that in the face of a section 579 stay, the Court was without any further jurisdiction to hold the Applicant and was similarly without jurisdiction to consider a recognizance at common law to keep the peace.

8Scaramuzza J. disagreed with the Applicant’s position, and declined to release him from custody until the Applicant advised the Court whether he would accept the peace bond conditions, or request a hearing to show cause.

9The matter was ultimately adjourned to a date in Nipigon, Ontario for the purpose of a show cause hearing. That hearing is currently on hold pending a decision on this Application.

Law and Decision

10For reasons which follow, I find that the impact of a section 579 stay removes any jurisdiction the Ontario Court of Justice has over an accused, including any common law jurisdiction to issue a peace bond.

Section 579 of the Criminal Code

11The Criminal Code authorizes the discretion of Attorney Generals to stay a charge or charges through section 579 which reads as follows:

579 (1) The Attorney General or counsel instructed by the Attorney General for that purpose may, at any time after any proceedings in relation to an accused or a defendant are commenced and before judgment, direct the clerk or other proper officer of the court to make an entry on the record that the proceedings are stayed by the Attorney General’s or counsel’s direction, as the case may be, and the entry shall then be made, at which time the proceedings shall be stayed accordingly and any undertaking or release order relating to the proceedings is vacated.

(2) Proceedings stayed in accordance with subsection (1) may be recommenced, without laying a new information or preferring a new indictment, as the case may be, by the Attorney General or counsel instructed by him for that purpose giving notice of the recommencement to the clerk of the court in which the stay of the proceedings was entered, but where no such notice is given within one year after the entry of the stay of proceedings, or before the expiration of the time within which the proceedings could have been commenced, whichever is the earlier, the proceedings shall be deemed never to have been commenced.

12A clear reading of this section provides the Attorney General with unfettered discretion on whether a prosecution shall proceed. The only caveat to this discretion, as interpreted by the case law, is where the exercise of discretion can be said to be an abuse of process on the part of the Attorney General, which is then reviewable by the courts: see R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 1.

13In Anderson at paras. 46-47, Moldaver J. referenced paras. 32 and 45 of the case of R. v. Krieger, 2002 SCC 65, [2002] 3 S.C.R. 372, in discussing the separation of powers doctrine to explain the rationale behind the need for the judiciary to defer to prosecutorial discretion:

The quasi-judicial function of the Attorney General cannot be subjected to interference from parties who are not as competent to consider the various factors involved in making a decision to prosecute. To subject such decisions to political interference, or to judicial supervision, could erode the integrity of our system of prosecution.

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

14In Krieger, the Court was asked to assess the ability of a law society to apply practice standards to members of the legal profession, including the Attorney General of Alberta. In answering the question, the Supreme Court of Canada confirmed that allegations or issues arising from the Attorney General’s legal duties – for example, the duty to disclose and not act in bad faith – are subject to review. However, matters involving prosecutorial discretion were beyond the parametres of the law society.

15In coming to its decision, the Court in Krieger reviewed the historical background to the office of Attorney Generals in Canada.

16The office of the Attorney General dates back to 13th century England, when the King’s Attorney exercised the prerogative on behalf of the King to initiate and terminate prosecutions. As the official legal advisor to the Crown, the Attorney General’s power was originally, and continues to be, initiating, managing and terminating both public and private prosecutions. Section 135 of the Constitution Act, 1867, provides for the extension of the authority and duties which existed in the Attorney General’s office prior to Confederation: Krieger, at paras. 23-26.

17The Attorneys General’s core power in bringing, managing and terminating prosecutions is significant and gives rise to the expectation that any of these powers must be able to be exercised entirely independent from political pressures of the government: Krieger, at para. 29.

18The fundamental principle of the rule of law which emanates from the Constitution is that supervision of the Attorney General’s decision making process is beyond the legitimate reach of the judiciary.

19The historical background, and its importance, was also reviewed by Karakatsanis J. in Ontario v. Criminal Lawyers’ Association, 2013 SCC 43, [2013] 3 S.C.R. 3, at paras. 27-30:

27This court has long recognized that our constitutional framework prescribes different roles for the executive, legislative and judicial branches . . . .

28Over several centuries of transformation and conflict, the English system evolved from one in which power was centralized in the Crown to one in which the powers of the state were exercised by way of distinct organs with separate functions. The development of separate executive, legislative and judicial functions has allowed for the evolution of certain core competencies in the various institutions vested with these functions. . . .

29All three branches have distinct institutional capacities and play critical and complementary roles in our constitutional democracy. However, each branch will be unable to fulfill its role if itis unduly interfered with by the others. . . . McLachlin J. affirmed the importance of respecting the separate roles and institutional capacities of Canada’s branches of government for our constitutional order, holding that “[i]t is fundamental to the working of government as a whole that all these parts play their proper role. It is equally fundamental that no one of them overstep its bounds, that each show proper deference for the legitimate sphere of activity of the other” . . . .

30Accordingly, the limits of the court’s inherent jurisdiction must be responsive to the proper function of the separate branches of government, lest it upset the balance of roles, responsibilities and capacities that has evolved in our system of governance over the course of centuries.

[Citations omitted.]

20And then in discussing the role of provincial Attorney Generals, Karakatsanis J. continued at paras. 34-35:

34The first reference to the “attornatus regis” – the King’s Attorney – dates back to the 13th century . . . . The role of Attorney General was carried into Canada in the 18th century, with the first Attorney General of Upper Canada being appointed in 1791. . . . The role was continued by the Constitution Act, 1867, as s. 63 explicitly mentions the Attorney General as one of the officers of the Executive Council of Ontario.

35The Attorney General of Ontario, on behalf of the executive, acts pursuant to the province’s responsibility under s. 92(14) of the Constitution Act, 1867 for the administration of justice. . . . Idington J. noted . . . that “custom, tradition, and constitutional usage, hav[e] charged [the Attorney General] with the administration of justice within the province as his primary duty”.

21When the Crown directs a section 579 stay to be entered, the court hearing the matter no longer has jurisdiction to proceed any further. The discretion of the Crown, in this regard, is statutory and beyond the direction or control of the judge who becomes functus once the discretion is exercised. As soon as the stay has been entered, the prosecution of the individual has come to an end and there is no longer any contest between the state and the individual. Invoking section 579 creates a situation identical to where the person had never been charged in the first place: R. v. Smith (1992), 1992 325 (BC CA), 79 C.C.C. (3d) 70 (B.C.C.A.), at paras. 20-22, cited with approval by Doherty J.A. in R. v. Larosa (2002), 2002 45027 (ON CA), 166 C.C.C. (3d) 449, at para. 41.

22It is clear that the Ontario Court of Justice has the common law jurisdiction to impose terms of a peace bond over a person who has not been found guilty of an offence. That jurisdiction exists to impose preventative justice in situations where an evidentiary foundation supports probable grounds to suspect future misbehavior: see R. v. Parks, [1992] 2 S.C.R. 87, at paras. 31-32, and 71-74; R. v. Lall, 2015 ONSC 2709, at paras. 17-19.

23This common law power, however, does not survive the exercise of the Crown’s section 579 discretion. This provision of the Criminal Code precludes the court’s power to exercise preventative justice on a common law basis. There is also no common law which supports the power of the Ontario Court of Justice, a statutory court, to impose terms of a peace bond once the Crown relies upon a section 579 stay.

24When charges are disposed of following a trial with a not guilty verdict, a peace bond may be imposed at common law because the matter is still before the court. However, when charges have been stayed by the Crown pursuant to section 579 of the Criminal Code, there is no option available for judicial review – as long as the exercise of the Crown’s discretion does not amount to an abuse of process – and the Ontario Court of Justice’s common law jurisdiction over an accused is extinguished.

25The application for certiorari is granted, and the order of Scaramuzza J. dated September 4, 2025 is hereby quashed.

The Hon. Mr. Justice S. J. Wojciechowski

Released: April 26, 2026

CITATION: R. v. Mahoney, 2026 ONSC 2511