CITATION: R. v. Splinter, 2026 ONSC 3000

COURT FILE NO.: CR-25-00000282-0000

DATE: 20260525

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

Respondent

– and –

MATTHEW SPLINTER

Applicant

Andrew Scott and Joanne Stuart, for the Crown

Brian Greenspan and Naomi Lutes, for the Applicant

HEARD: March 26, 2026 at Kingston

REASONS ON abuse of process application

RYAN BELL J.

Overview

1In this application, Matthew Splinter seeks a stay of proceedings, or alternative relief in the form of discovery of witnesses, on the ground that the Crown’s preferment of a direct indictment after a preliminary hearing had been scheduled, infringed his rights under s. 7 of the Canadian Charter of Rights and Freedoms. The applicant submits the only reasonable inference in this case is that the decision to prefer an indictment was done capriciously, arbitrarily, or simply to deprive him of discovery – all of which would constitute an oblique motive, and an abuse of process.

2The Crown submits that to prove an abuse of process in the exercise of a core prosecutorial discretion, the applicant must adduce concrete evidence that the Crown’s conduct was so egregious and so seriously compromised trial fairness or the integrity of the justice system that it shocks the conscience of the community. The Crown says that the applicant has failed to meet his evidentiary burden so as to displace the good faith presumption and overcome the deference owed the Crown’s decision to prefer a direct indictment. In the alternative, the Crown requests the opportunity to explain its decision.

3For the following reasons, the application is dismissed.

The Charges

4On October 29, 2024, the applicant was arrested and charged with three counts of dangerous operation causing death, three counts of dangerous operation causing bodily harm, three counts of impaired operation causing death, and three counts of impaired operation causing bodily harm.

5The charges arise from a boating accident on Bob’s Lake during the Victoria Day long weekend in 2024. The allegations are that the applicant drove his speed boat into a stationary boat that had eight people on board. The Crown alleges that both speed and alcohol were factors in the collision.

Procedural History

6Following his arrest, the applicant was held for a contested bail hearing and released on November 29, 2024. The applicant changed counsel in February 2025.

7A judicial pre-trial was held on May 26, 2025. Crown counsel emailed defence counsel to summarize the judicial pre-trial discussions: the defence was likely to concede committal, four days were approved for the preliminary inquiry, the defence had asked to hear from nine witnesses, and the Crown had planned to lead evidence via s. 540(7) of the Criminal Code for all witnesses but agreed that all witnesses would be produced for cross-examination under s. 540(9), with a narrow scope for one witness.

8On June 13, 2025, Crown and defence counsel had a further exchange regarding conceding committal and how the preliminary inquiry would proceed.

9On July 3, 2025, counsel attended in the Ontario Court of Justice in Kingston to confirm the dates for the preliminary inquiry: January 5, 6, 7, and 9, 2026. The matter was adjourned to the first date.

10The direct indictment was preferred on September 29, 2025. Defence counsel received the direct indictment by email on October 5, 2025, without forewarning, comment or explanation.

11A judicial pre-trial was held in the Superior Court of Justice on December 8, 2025. Trial dates offered on December 12, 2025 included dates in November and December 2026, which defence counsel declined.

12Trial dates of April 5-30 and May 10-14, 2027 were set on the record in Assignment Court on December 19, 2025. At that appearance, the applicant re-elected trial by judge alone and waived his s. 11(b) Charter right for the period November 2026 through March 2027 as defence counsel was not available for the earlier dates offered and had no availability prior to April 2027.

Governing Legal Principles

Decision to Prefer a Direct Indictment is an Exercise of Core Prosecutorial Discretion

13As Fairburn A.C.J.O. recently summarized in R. v. Abdella, 2026 ONCA 228,¹ exercises of prosecutorial discretion constitute the “core of the Attorney General’s office”: Abdella, at para. 60, citing R. v. Krieger, 2002 SCC 65, [2002] 3 S.C.R. 372, at para. 43 [emphasis in Abdella]. These core powers “envelop a broad category of decision making” and essentially encompass decisions that relate to the “nature and extent of the prosecution and the Attorney General’s participation in it”: Abdella, at para. 60, citing Krieger, at para. 47.

14The decision to prefer a direct indictment falls within the nature and extent of the prosecution: R. v. Anderson, 2014 SCC 41, at para. 44; R. v. Varennes, 2025 SCC 22, at paras. 48-49; Abdella, at para. 60. As Dineen J. observed in R. v. Perikleous and Pilios (22 October 2025), Toronto, 25-3000154 (Ont. S.C.), in Varennes, Karatkasanis J. referred to the direct indictment power as an example of core prosecutorial discretion without qualification: Perikleous, at para. 37.

15Because the decision to prefer a direct indictment is an exercise of core prosecutorial discretion, the decision is owed deference, in order to respect the “separation of powers and the constitutional role of the Attorney General”: Abdella, at para. 61, citing Varennes, at paras. 48-49; see also R. v. S.J.L., 2009 SCC 14, [2009] 1 S.C.R. 426, at para. 24; R. v. Bulhosen, 2019 ONCA 600, at para. 88, leave to appeal refused, [2019] S.C.C.A. No. 423.

The Abuse of Process Doctrine

16Judicial review of the decision on whether to prefer a direct indictment is subject to the abuse of process doctrine: Abdella, at para. 62. The abuse of process doctrine is aimed at “egregious” Crown conduct “threatening the right to a fair trial or the integrity of the justice system”: Abdella, at paras. 62-63, citing Anderson, at para. 50; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31.

17In Anderson, at para. 49, Moldaver J. described the type of prosecutorial conduct that constitutes abuse of process:

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, [R. v. Nixon, 2011 SCC 34] 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).

18The threshold for finding an abuse of process in a criminal case is “notoriously high” and “successful reliance upon the doctrine will be extremely rare”: Varennes, at para. 54, citing R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 94; R. v. Mahalingan, 2008 SCC 63, [2008] 3 S.C.R. 316, at para. 42.

19An accused person claiming the conduct of their defence has been negatively affected by a prosecutorial decision made within the core of the Crown’s discretion may seek a stay of proceedings, but it will be granted only if their inability to receive a fair trial is made out. I agree with Campbell J. that “[a] decision which creates challenges for the accused or deprives the defence of optimal procedures, cannot, for that reason alone, be characterized as an abuse of process”: R. v. Azawi, 2025 ONSC 6558, at para. 33.

20In a case where it is alleged that the state conduct risks undermining the integrity of the judicial process, the question is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system: Babos, at para. 35.

The Threshold Evidentiary Burden

21There must be a “proper evidentiary foundation” before an abuse of process claim should proceed; “it is not sufficient to launch an inquiry for an applicant to make a bare allegation of abuse of process”: Anderson, at para. 53, citing Nixon, at paras. 61-62. Where prosecutorial discretion is challenged, the Crown may be required to provide reasons justifying its decision where the applicant establishes a proper evidentiary foundation: Nixon, at para. 60. In Nixon, the Supreme Court of Canada held that evidence that a plea agreement was entered into and subsequently reneged by the Crown – clear evidence that “the Crown has gone back on its word” – is a “rare and exceptional event” that provides the requisite evidentiary threshold to embark on a review of the decision for abuse of process: Nixon, at para. 63.

22As the Supreme Court explained in Anderson, requiring the applicant 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: Anderson, at para. 55, citing Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248, at para. 95. It also accords with the principle that “prosecutorial authorities are not bound to provide reasons for their decisions, absent evidence of bad faith or improper motives”: Anderson, at para. 55, citing Sriskandarajah v. United States of America, 2012 SCC 70, [2012] 3 S.C.R. 609, at para. 27 [emphasis in Anderson].

23I agree with the reasoning of Dunphy J. in R. v. Lucchesi, 2025 ONSC 2953, at para. 7:

The gatekeeper function of the court in reviewing proposed inquiries into alleged abuse of process in the exercise of prosecutorial discretion must be viewed in this context and recognizes the pragmatic necessity of enabling the court to decline to embark upon an evidentiary hearing at the request of one of the parties when the requesting party is unable to show a reasonable likelihood that the hearing can assist in determining the issues before the court.

24The content of a Crown policy or guideline may be relevant when a court is considering a challenge to the exercise of prosecutorial discretion; policy statements or guidelines are capable of informing the debate as to whether a Crown prosecutor’s conduct was appropriate in the particular circumstances: Anderson, at para. 56. In this case, Crown and defence counsel both referred to the Crown Prosecution Manual (Ontario) which sets out the process and general principles for prosecutors seeking the Attorney General or the Deputy Attorney General’s consent to direct an indictment where the interest of justice requires that the matter be brought directly to trial. I return to the Manual and the related submissions in the analysis section of these reasons.

25Under either category – state conduct compromising the fairness of an accused’s trial and state conduct that risks undermining the integrity of the judicial process – the test to determine whether a stay of proceedings is warranted is the same:

(i) 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”;

(ii) there must be no alternative remedy capable of redressing the prejudice; and

(iii) where uncertainty remains over whether a stay is warranted after steps (i) and (ii), 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”: Babos, at para. 32, citing R. v. Regan, 2002 SCC 12, at paras. 54, 57.

Direct Indictments

26Section 577 of the Criminal Code reads:

Direct Indictments

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 by 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.

27In Abdella, Fairburn A.C.J.O. confirmed that, alongside s. 574, s. 577 is intended to provide a complete code with respect to preferring indictments, and that s. 577 grants the Attorney General or the Deputy Attorney General a “robust power” to “eclipse the accused’s ability to elect and, in some scenarios, to eclipse elections already made”: Abdella, at paras. 38, 43, citing R. v. Tapaquon, 1993 52 (SCC), [1993] 4 S.C.R. 535, at pp. 551-552. Direct indictments are available under s. 577 “even if” the accused has not yet been given the opportunity to request a preliminary inquiry, “even if” the preliminary inquiry is underway, and “even if” a preliminary inquiry has been held and the accused has been discharged: Abdella, at para. 43.

28There is no constitutional right to a preliminary inquiry and no right not to be deprived of a preliminary hearing: R. v. Arviv (1985), 1985 161 (ON CA), 51 O.R. (2d) 551 (C.A.), leave to appeal refused, [1985] S.C.C.A. No. 74; S.J.L., at paras. 21-23; R. v. Veltman, 2022 ONSC 3218, per Pomerance J. (as she then was), at paras. 2, 4. The applicant’s position is that, although preferring a direct indictment was “technically permissible”, in considering whether there was an oblique motive, the decision made in this case should attract greater scrutiny. Oblique motive has been recognized as a synonym for “flagrant impropriety”: R. v. Baptiste, 2000 22649 (ON SC), at para. 46.

Analysis

Overview

29There is no dispute that, given appellate authorities, it is appropriate for the Crown to employ its preferred indictment power to minimize delay and to ensure that an accused’s constitutional right to a speedy trial enshrined in s. 11(b) of the Charter is protected. For example, in Bulhosen, Strathy, C.J., cited R. v. Manasseri, 2016 ONCA 703, at para. 376, where Watt J. wrote:

Direct indictments under s. 577(a) of the Criminal Code have been infrequent in this province. However, after Jordan, with full disclosure as required by Stinchcombe, the Crown should give very serious consideration to preferring direct indictments to fulfill its mandate under s. 11(b) and to ensure, to the extent reasonably possible, that criminal trial proceedings do not exceed the presumptive ceilings set by Jordan.

30Most recently, Fairburn A.C.J.O. affirmed that,

[i]t falls directly within the jurisdiction of the Chief Law Officer of the Crown to ensure that prosecutions are moved along as expeditiously as possible and seen through to completion: Jordan, at para. 112. In fulfilling its constitutional mandate to avoid unreasonable delay, the Crown may legitimately rely on direct indictments under s. 577 [citations omitted]: Abdella, at para. 71.

31The applicant contends, however, that preferring a direct indictment in this case was not directed at minimizing delay; rather, he maintains the direct indictment has been used arbitrarily or for an oblique motive to deprive the applicant of his preliminary inquiry and the discovery afforded by that opportunity. The applicant says that the discovery function served by a preliminary inquiry was of particular significance in this case given its complexities, including “scores of witnesses” and several experts, to assess and fully appreciate the factual matrix upon which the allegations are based.

32The applicant relies on Varennes, where the Supreme Court held that the Crown’s decision to withhold its consent to a judge-alone murder trial under s. 473(1) of the Criminal Code was not a core prosecutorial decision, but rather a tactical decision and therefore reviewable on the lower standard of fairness. The applicant contends the decision to deprive him of his statutory election and his right to a preliminary inquiry – a right which he had already exercised – must attract heightened scrutiny in light of Varennes. The applicant argues that, given the lack of any indicia that would support one of the factors outlined in the Crown Prosecution Manual, the only reasonable inference is that the decision to prefer a direct indictment was taken for an oblique motive and constitutes an abuse of process.

Evidentiary Threshold not met by the Applicant

33The applicant has not established the proper evidentiary foundation for his abuse of process claim to proceed. The Court of Appeal for Ontario has characterized the threshold standard as requiring the applicant to point to facts or evidence which lend an “air of reality” to an allegation of abuse of process: R. v. Shaw, 2024 ONCA 119, paras. 225-29.

34There is no air of reality to the allegation of abuse of process in this case. There is no evidence that the Crown’s decision undermines the integrity of the judicial process or would result in trial unfairness. There is no evidence that would displace the good faith presumption or overcome the deference owed to the decision to prefer a direct indictment. And there is no evidentiary foundation such that the Crown should be required to provide reasons justifying its decision: Nixon, at paras. 61-62; Anderson, at paras. 52-55; R. v. Delchev, 2015 ONCA 381, at para. 49.

35There are two avenues for meeting the evidentiary threshold: (i) the applicant adduces evidence that the prosecutor exercised its discretion in bad faith or for an improper motive; or (ii) the discretionary decision is “so rare and exceptional in nature that it demands an explanation”: R. v. Mivasair, 2025 ONCA 179, at paras. 82-83; Delchev, at paras. 52-54; Anderson, at para. 55. The applicant’s argument spans both categories; in my view, it fails on both.

Decision not “rare and exceptional”

36It is not enough to show the decision is “infrequently made”; rather, the discretionary decision must be so rare and exceptional that it “raise[s] the Court’s concern about the Crown’s exercise of discretion” and “implicate[s] interests that are of crucial importance to the proper and fair administration of justice”: Delchev, 2015 ONCA 381, at para. 54; Mivasair, at para. 83.

37For example, in Nixon, repudiation of a plea agreement – a rare and exceptional event – provided evidence that the Crown had “gone back on its word” and “[a]s everyone agrees, it is of crucial importance to the proper and fair administration of criminal justice that plea agreements be honoured”: Nixon, at para. 63.

38The applicant contends the circumstances here “come close” to the scenario before the Supreme Court of Canada in Nixon. Respectfully, I disagree. The timing of the Attorney General or the Deputy Attorney General’s consent to direct an indictment does not, on its own, provide the requisite evidentiary foundation, including where the direct indictment was preferred after the claimant elected to have a preliminary inquiry and before the hearing commenced. In such circumstances, courts have found there is “nothing unusual about this scenario that warrants inquiry”: R. v. Semi-Bi, 2025 ONSC 7288, at para. 4; R. v. Hassan, CR-25-814, February 13, 2026 (unreported).

39The applicant relies on R. v. Pearson, 2024 ONSC 1992, for the proposition that the timing of preferring the direct indictment is an important consideration, even when ostensibly used to minimize delay. In my view, Pearson does not assist the applicant. Pearson is distinguishable from the application before me as it was an “under the ceiling Jordan application” and not an abuse of process application. In respect of abuse of process applications, Carter J. recognized the Crown’s decision to prefer an indictment is a matter of prosecutorial discretion and is reviewable only for abuse of process. The Crown has no obligation to give reasons to justify its decision, absent an evidentiary basis for a claim of abuse of process: Pearson, at para. 18, citing Bulhosen, at para. 88.

40At para. 22 of Pearson, Carter J. acknowledged the need for sufficient evidence that the decision to prefer the indictment was for an improper purpose before a finding of abuse of process may be found:

That is not to say that the timing of the preferring of an indictment is never relevant on an under the ceiling Jordan application. I do not read the decision of the Ontario Court of Appeal in Bulhosen as foreclosing such an argument. Indeed, sufficient evidence that the decision to prefer the indictment was for an improper purpose may lead to a finding of an abuse of process. Short of that, there may be cases in which the preferring of the indictment in conjunction with a lack of Crown diligence leads to a finding that the case took markedly longer than was reasonable. One such hypothetical example can be found in the decision of R. v. Nyzik, 2017 ONSC 69 at para. 32. There may be others. This, however, is not such a case.

41Acting in accordance with s. 577 of the Criminal Code, which grants a “robust power” to the Attorney General or the Deputy Attorney General to eclipse elections already made cannot, by itself, be considered a “rare and exceptional” event: Abdella, at paras. 38, 43.

No evidence of bad faith or an improper motive

42I agree with the Crown that proactively scheduling a preliminary inquiry and asking the Attorney General or the Deputy Attorney General to prefer a direct indictment are not mutually exclusive options for the advancement of a prosecution. Pursuing the former requires the assigned Crown to communicate with the defence. Pursuing the latter is subject to privilege. I further agree with the Crown that to place a prosecution on hold while a request for a direct indictment is pending – and which may be declined – would risk breaching the accused’s right to trial in a reasonable time contrary to s. 11(b) of the Charter. As summarized by Dineen J. in Perikleous, at para. 62,

I do not have the benefit of the submissions made to the Deputy Attorney General in support of this direct indictment, and the authorities make clear that it is not my role to second-guess whether this decision was “unwise, unnecessary” or “inappropriate.” I could not fairly say that the Crown’s decision rose to the level of being “offensive to societal norms of fair play and decency.” I would not analogize, as the Applicants did, the Crown’s decision to abandon the agreed Ontario Court of Justice timetable to a breach of an undertaking to the Court. I see nothing underhanded in the Crown’s conduct that would harm the integrity of the justice system.

43I adopt this reasoning. There is a “significant difference” between state conduct which is “unwise, unnecessary, inappropriate, or even improper”, and state conduct that can be characterized as “offensive to societal norms of fair play and decency”: R. v. Currado, 2023 ONCA 274, at para. 17. It is not my role to second guess whether the decision to prefer the direct indictment was unwise, unnecessary, or inappropriate. There is no evidence to suggest that the Crown’s conduct is offensive to societal norms of fair play and decency or would harm the integrity of the justice system.

Reasonable Inferences and the Crown Prosecution Manual

44At this stage, the Crown is not required to give a reason for preferring the direct indictment. The good faith of the Crown is presumed. As observed by Campbell J. in Azawi, at para. 84, in this context, it is unlikely an applicant will meet the evidentiary threshold by attempting to eliminate any acceptable reason for the direct indictment. This, however, is the path the applicant has followed here: he argues the only reasonable inference based on the record is that the decision to prefer a direct indictment was taken for an oblique motive because there are no indicia that would support one of the factors outlined in the Crown Prosecution Manual.

45Respectfully, I do not agree. The Crown did not give a reason for preferring the direct indictment. The authorities make clear the Crown is not required to justify its decision, unless and until the evidentiary threshold has been met: Veltman, at para. 4, citing Krieger, Nixon, Anderson. Nevertheless, in response to the applicant’s argument, the Crown made submissions on the available inferences. I will address these submissions briefly for the sake of completeness.

46The Crown Prosecution Manual sets out the process and general principles for prosecutors seeking the consent of the Attorney General or the Deputy Attorney General to a direct indictment. The Manual specifies that the prosecutor should make a request for the consent of the Attorney General or the Deputy Attorney General to direct an indictment where the interests of justice require that the matter be brought directly to trial. Generally, full disclosure must be made prior to the prosecutor’s request for a direct indictment; if full disclosure has not been made prior to the request, the prosecutor must ensure that disclosure allowing the accused to properly exercise their right to full answer and defence will be made prior to trial. The prosecutor must have concluded that there is a reasonable prospect of conviction, and the continuation of the prosecution is not contrary to the public interest. The prosecutor must have the approval of the Crown Attorney and Director before requesting a direct indictment from the Attorney General or the Deputy Attorney General.

47The Crown Prosecution Manual sets out a non-exhaustive list of factors the prosecutor should consider in determining whether to request a direct indictment. The factors include “delays in the trial that could deprive the accused of the right to be tried within a reasonable time.” As Campbell J. wrote in Azawi, “[d]irectly indicting out of concern for delay is a decision that must

be made with an awareness of the vicissitudes which may befall a case at any point, including after committal for trial”: Azawi, at para. 82 [emphasis added].

48In my view, it is an available inference on the record before me that the Crown was concerned with moving the matter forward and preventing foreseeable delay to ensure the trial dates set could be Jordan-compliant. At the time the direct indictment was preferred, there was no s. 11(b) wavier from the applicant. The applicant waived s. 11(b) for the period November 2026 through March 2027 approximately 2.5 months after the direct indictment was preferred. While the applicant maintains that there was no issue regarding delay and the waiver was not relevant before trial dates were set, I agree with the Crown that it is not open to the applicant to rely on his post-direct indictment s. 11(b) waiver to suggest that the Crown ought not to have had concerns about delay in this case.

49In R. v. Jordan, 2016 SCC 27, at para. 112, the Supreme Court of Canada emphasized the Crown’s obligation to act proactively throughout the proceedings:

In addition, the new framework will help facilitate a much-needed shift in culture. In creating incentives for both sides, it seeks to enhance accountability by fostering proactive, preventative problem solving. From the Crown’s perspective, the framework clarifies the content of the Crown’s ever-present constitutional obligation to bring the accused to trial within a reasonable time. Above the ceiling, the Crown will only be able to discharge its burden if it can show that it should not be held accountable for the circumstances which caused the ceiling to be breached because they were genuinely outside its control. Crown counsel will be motivated to act proactively throughout the proceedings to preserve its ability to justify a delay that exceeds the ceiling, should the need arise. Below the ceiling, a diligent, proactive Crown will be a strong indication that the case did not take markedly longer than reasonably necessary.

50Local circumstances in the Superior Court of Justice in Kingston at the time the direct indictment was preferred are relevant to this issue and I take judicial notice of them: R. v. Agpoon, 2023 ONCA 449, at para. 26, leave denied 2024 45540 (SCC). In this jurisdiction, a judicial pre-trial date is a condition precedent to setting trial dates, and at the time the direct indictment was preferred, there was, routinely, several months’ delay in obtaining judicial pre-trial dates. Matters were routinely being set for trial almost a year from the date on which the trial dates had been set. Consistent with these timelines, the first trial dates offered in this case were almost a year after the judicial pre-trial in the Superior Court of Justice was held.

51The Crown also submits that it is reasonable to infer that in this jurisdiction, the Crown had to be increasingly proactive to prevent backlog and delay in other cases. Preferring a direct indictment made four juridical days in the Ontario Court of Justice available for other matters to be advanced. The applicant asserts that decisions as to which charges to prioritize for limited court dates are decisions relating to “tactics or conduct before the court”, do not fall within core prosecutorial discretion, and are therefore subject to a higher level of scrutiny, relying on Varennes, at para. 56.

52In my view, the applicant’s argument conflates the decision to prefer a direct indictment – a matter falling squarely within core prosecutorial discretion – and the reasons behind the decision. In any event, the Crown is not obliged to “feed a fishing expedition” grounded on speculation about what the “real” reason may have been to seek a preferred indictment or the motives of the Attorney General or the Deputy Attorney General in consenting to the request, and the Crown is not obliged to demonstrate an absence of abusive conduct: Lucchesi, at para. 16, citing R. v. J.R., 2023 ONCJ 422, at para. 21.

Conclusion

53The applicant has not established the proper evidentiary foundation for his abuse of process claim to proceed further. There is no air of reality to his claim. Accordingly, the application for a stay of proceedings or other relief is dismissed.

Footnotes

1. 1Released after the application hearing. Counsel drew the decision in Abdella to the court’s attention but did not request that submissions be re-opened.