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Criminal - Certiorari. R. v. Mivasair
In R. v. Mivasair (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, this from a dismissed JR of a Crown stay of a private prosecution under the Foreign Enlistment Act:
Here the court considers Crown intervention and stay of private prosecutions, and appropriate JR procedures to challenge that (most useful text is at paras 21-75 of the case, which see):[1] The Crown’s exercise of prosecutorial discretion is reviewable by the courts. However, the jurisprudence establishes that a party seeking to review the Crown’s exercise of prosecutorial discretion must meet the high standard of showing an abuse of process before a court will intervene.
[2] The issues raised by this appeal do not concern whether Crown discretion is reviewable by the courts or the standard that must be met for a court to intervene in the Crown’s exercise of prosecutorial discretion. Rather, this appeal concerns who may seek review of the Crown’s exercise of prosecutorial discretion and where. More specifically, can an informant who has laid a private Information before a Justice of the Peace seek judicial review of the Crown’s exercise of prosecutorial discretion to intervene in and withdraw or stay the private prosecution? And if so, is the appropriate route to do so a criminal application for certiorari or a civil action or application?
[3] As I will explain, the appropriate route for review is a criminal application for certiorari. The review of the Crown’s exercise of discretion to intervene in and withdraw or stay a private prosecution is fundamentally a problem of criminal law and procedure. To the extent it is subject to supervision by the courts, that supervision is governed by criminal procedure. As a practical matter, given the high standard for review of the exercise of prosecutorial discretion, a successful application to review the Crown’s exercise of prosecutorial discretion to intervene in and withdraw or stay a private prosecution will be rare.
[4] The application judge erred in concluding that he did not have jurisdiction to hear the application for certiorari and that the appellants did not have standing to bring it. However, I agree with the application judge that the appellants failed to meet the threshold evidentiary burden in relation to abuse of process discussed in R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at paras. 52-55. I would dismiss the appeal. At paras 21-66 the court continues to assess in-depth the issue of challenging by JR a private prosecution Crown intervention and stay [paras 21-31], and "(w)here and by whom can a review of Crown prosecutorial discretion to intervene in and stay an Information proceed?" [paras 32-66].(iv) Conclusion on jurisdiction and standing to review the Crown exercise of discretion to intervene in and withdraw or stay a private prosecution
[67] I return to the Dagenais approach of looking for the “least unsatisfactory” procedural route for review of the Crown’s exercise of prosecutorial discretion to intervene in and withdraw or stay a private prosecution.
[68] The only potential flaw with the procedural route of a criminal application for certiorari is that it could be said to fit awkwardly with the language in Awashish related to an “order”, in the sense outlined above that the presiding justice cannot refuse the Crown request to withdraw or stay an Information prior to plea. Respectfully, this is a matter of form and not substance.
[69] Even so, a criminal application for certiorari is still the “least unsatisfactory” route to review the exercise of prosecutorial discretion to intervene in and withdraw or stay a private prosecution. Indeed, a criminal application for certiorari is a good route for this review. It is a straightforward and expeditious criminal procedure. It allows all parties with an interest to be heard – the informant/private prosecutor, the Crown, and the accused. And by following established criminal procedure, it keeps the review in the criminal courts, where it belongs – both because it is a criminal matter and because it is the procedure of Ontario’s criminal courts that the remedy of review for abuse of process is designed to safeguard.
[70] As explained above, the interest of the person who lays an Information before a Justice of the Peace, pursuant to s. 504 of the Criminal Code, as a private prosecutor gives that person a sufficient interest in the criminal proceedings to support standing to bring an application for certiorari alleging abuse of process, where the Crown intervenes and withdraws or stays the prosecution.
[71] I take comfort in my conclusion that the appropriate route of review is a criminal application for certiorari and that the private prosecutor has standing to bring the application from decisions of other provinces that have reached the same conclusion: Holland, at paras. 2-3, 18-26; Holzbauer, at paras. 18-19; Gauvin, at paras. 3, 87, 107-113.
[72] I am aware that in Currie v. Ontario (Attorney General), 2017 ONCA 266, at para. 18, this court, while not deciding the issue, expressed “serious concerns” about a private prosecutor’s standing to challenge the exercise of prosecutorial discretion to intervene in and withdraw a private prosecution. Our court has been somewhat ambivalent on this issue, having heard at least four appeals in similar circumstances and having not raised concerns about standing or jurisdiction: Paik c. Bullen, 2023 ONCA 642, leave to appeal to S.C.C. refused, 41031 (May 9, 2024); R. v. Glegg, 2021 ONCA 100, 400 C.C.C. (3d) 276; P.C. v. Ontario (Attorney General), 2020 ONCA 652, 396 C.C.C. (3d) 216, at paras. 52-55, leave to appeal to S.C.C. refused, 39805 (November 25, 2021); Perks v. Ontario (Attorney General) (1998), 1998 CanLII 17722 (ON CA), 116 O.A.C. 399 (C.A.), leave to appeal refused, [1999] S.C.C.A. No. 89. Indeed, in Perks, this court expressly declined to rule on the jurisdictional issue (referring to paragraphs of the lower court decision, reported at [1998] O.J. No. 421, addressing that issue).
[73] With full argument on the issue, I conclude that the appellants followed the appropriate procedure to challenge the exercise of prosecutorial discretion to intervene in and withdraw the private prosecution. The application judge erred in concluding that the Superior Court did not have jurisdiction to hear the application for certiorari and that the appellants did not have standing to bring it.
[74] Before leaving this issue, I flag a matter of practice. It is unclear from the record before us whether the accused, Sar-El, was served with the application for certiorari. Because I conclude that the application judge did not err in finding that the appellants failed to meet the threshold evidentiary burden in relation to abuse of process, the possible lack of service is a moot point. But I emphasize that a private prosecutor who brings an application for certiorari to review the Crown’s exercise of prosecutorial discretion to withdraw or stay an Information must serve the application on the accused person or persons. Given the interest of an accused in whether the charge(s) proceeds, they would have a right to respond and be heard on the application.
[75] Because I would find that the Superior Court has jurisdiction to hear the application for certiorari and the appellants have standing to bring it based on the law in relation to review of the exercise of Crown discretion and certiorari, it is not necessary to consider the appellants’ argument based on s. 7 of the Charter. I note that this argument was not included in their Notice of Application for certiorari filed in the Superior Court. It was raised for the first time on appeal.
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[113] The comment of Crown counsel at the pre-enquete (excerpted above) was directed to the standard a Justice of the Peace must consider in deciding whether to issue process (after an Information is received). The standard to issue process is whether there is some evidence on each element of the offence: McHale, at paras. 5-11, 43-48, 64-71, and 74; P.C., at paras. 27-30; Criminal Code, ss. 507 and 507.1. The standard for issuing process is also informed by the reasonable and probable grounds standard for a Justice of the Peace to receive an Information, set out in s. 504 of the Criminal Code.
[114] A different standard applies when Crown counsel is deciding whether to continue a prosecution after a Justice of the Peace has issued process – whether there is a reasonable prospect of conviction.[9] This is a higher standard than the standard applied when a Justice of the Peace decides whether to issue process: Public Prosecution Service of Canada Deskbook, chapter 2.3 “Decision to Prosecute” at 4.1 and following; Ontario Crown Prosecution Manual, “Charge Screening” at D.3; The Honourable G. Arthur Martin, O.C., O. Ont., Q.C., LL.D., Chair, Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure and Resolution Discussions (Toronto: Ontario Ministry of the Attorney General, Queen’s Printer for Ontario, 1993), at pp. 65-74. . Toronto Star Newspapers Limited v. Cavey
In Toronto Star Newspapers Limited v. Cavey (Ont CA, 2023) the Court of Appeal considered an appeal by a newspaper and a journalist who had been denied a "writ of certiorari to quash the subpoena" in relation to a defendant's CCC 278.3 [O'Connor] third-party disclosure application seeking "production of any notes or recordings" from the journalist's interview with a suspected victim:[3] On May 19, 2023 Mr. Cavey sought a subpoena against the Toronto Star via Form 16.1, as required by s. 278.3(5) of the Criminal Code in advance of a stage one hearing pursuant to R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668. In support of that subpoena request, he submitted the affidavit of a student-at-law with exhibits, a notice of application, and a factum – his complete s. 278.3 application record. A judge of the Ontario Court of Justice issued a subpoena on May 24, 2023. That subpoena requires the appellants to deposit copies of any notes, recordings, or other documents generated during the course of Ms. Bocknek’s interview with R.T. in a sealed package at the Ontario Court of Justice in Hamilton; however, the subpoena provides for an exception: the appellants “are not required to provide the things specified to any person or to discuss their contents with any person unless and until ordered by the court to do so.” Further, if, as here, the document is a “record,” then the appellants “are not required to bring it with you until a determination is made in accordance with [ss. 278.1-278.91] as to whether and to what extent it should be produced.”
[4] The Toronto Star and Ms. Bocknek applied to the Superior Court of Justice for a writ of certiorari to quash the subpoena. On July 26, 2023 Goodman J. (“the application judge”) declined to grant that extraordinary remedy. The appellants now appeal that decision to this Court.
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[6] We accept that the appellants, as third parties to Mr. Cavey’s trial, had the right to seek relief before the application judge by way of certiorari, since they had no statutory right to an interlocutory appeal. We also agree that the scope of certiorari available to the appellants is broader than that available to Mr. Cavey or the Crown. Parties to a criminal proceeding can only seek certiorari for errors of jurisdiction, but third parties, such as the appellants in this case, may also seek review for errors of law that are apparent on the face of the record. However, the order being reviewed must have a final and conclusive character vis-à-vis the third party: R. v. Awashish, 2018 SCC 45, [2018] 3 S.C.R. 87, at para. 12; and R. v. Primeau, 1995 CanLII 143 (SCC), [1995] 2 S.C.R. 60, at para. 12.
[7] The appellants assert that the issuance of the subpoena demonstrates errors of law on the face of the record, since the purposes for which Mr. Cavey seeks the records are impermissible under the s. 278 regime, and since the records are subject to journalistic privilege under s. 39.1 of the Canada Evidence Act, 1985, c. C-5. The appellants assert that the application judge should have exercised his discretion to grant certiorari, because these errors were patently obvious and he erred by failing to grapple with them.
[8] We are not persuaded by the appellants’ submissions. To begin, the application judge recognized that certiorari is a discretionary remedy. In this case, the application judge refused to grant the relief sought because, in his view, the trial judge was well placed to determine the crux of the appellants’ objection: that they were being “forced” to participate in a third-party records hearing that threatened the journalist-source relationship. He further held that the trial judge was in the best position to determine the likely relevance of the records and the intersection of journalistic privilege in the context of the s. 278 application, especially given the full record that will be before the trial judge. Indeed, the appellants have standing under s. 278 to assert their privacy interest in the records and their claim to journalistic privilege. They will have a full opportunity to make submissions on the issues before the trial judge.
[9] This court can only interfere with a discretionary decision not to grant certiorari where an application judge fails to give weight to all relevant considerations, rests on an error in principle, or is plainly wrong: Bessette v. British Columbia (Attorney General), 2019 SCC 31, [2019] 2 S.C.R. 533, at para. 35. The application judge considered all the arguments put forth by the appellants to quash the subpoena, and his reasons not to exercise his discretion reveal no errors in principle. We see no basis to interfere with his exercise of discretion.
[10] Nor do we accept the appellants’ argument that the application judge’s decision can be read as effectively removing the procedural safeguard of certiorari for third parties to challenge the issuance of subpoenas in the context of s. 278 hearings. The application judge recognized that the purpose of a subpoena duces tecum is not the discovery of documents from third parties. His decision reflects a careful consideration of the fact that alternative procedural protections exist which can protect the appellants’ legitimate interests without fragmenting Mr. Cavey’s criminal trial. In the specific circumstances of this case, he saw nothing that would warrant the immediate granting of an extraordinary, prerogative remedy: R. v. Johnson (1991), 1991 CanLII 7174 (ON CA), 3 O.R. (3d) 49 (C.A.), at pp. 53-54. We see nothing in the application judge’s reasons that would suggest third parties are prohibited from applying for certiorari to quash subpoenas in future cases. . R. v. M.N.
In R. v. M.N. (Ont CA, 2022) the Court of Appeal considers the rare criminal use of certiorari:[17] Certiorari is an extraordinary remedy, the use of which is “tightly limited” by the Criminal Code and the common law to ensure that the general prohibition against interlocutory appeals in criminal matters is respected: R. v. Awashish, 2018 SCC 45, [2018] 3 S.C.R. 87, at para. 10. This general prohibition is a well-established principle of our criminal justice system that helps ensure the timely resolution of criminal matters: Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863, at p. 959; R. v. Meltzer, 1989 CanLII 68 (SCC), [1989] 1 S.C.R. 1764, at p. 1774; Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835, at p. 857.
[18] Expanding the availability of extraordinary remedies to effect an “end-run” around this general prohibition would undermine the principles espoused by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, as interlocutory appeals threaten the timely delivery of justice by fragmenting criminal trials: Awashish, at para. 10. As the Supreme Court of Canada explained in Awashish, challenging interlocutory rulings in criminal matters “risks having issues decided without the benefit of a full evidentiary record – a significant source of delay and an inefficient use of judicial resources”: para. 10.
[19] It is in part for this reason that certiorari is only available to parties in a criminal matter where a judge of the provincial court makes a jurisdictional error: Awashish, at para. 20. That is, an error where the judge “fails to observe a mandatory provision of a statute” or “acts in breach of the principles of natural justice”: Awashish, at para. 23. As this court explained in York (Regional Municipality) v. McGuigan, 2018 ONCA 1062, 144 O.R. (3d) 81, at para. 64:Certiorari is an extraordinary remedy, which issues from the superior court to ensure that courts of limited authority, such as the provincial offences court, do not exceed their limited jurisdiction. Provided courts of limited jurisdiction do not exceed the scope of their authority, certiorari is not available to the parties to a proceeding to control the manner in which the authority is exercised. [20] Certiorari is only available when the alleged error goes to the jurisdiction of the provincial court itself. It is not enough to identify an alleged legal error in the provincial court’s interlocutory ruling. Any such error would properly be dealt with at the conclusion of the trial: R. v. Stipo, 2019 ONCA 3, 144 O.R. (3d) 145, at para. 52, and R. v. Amiri, 2021 ONCA 902.
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[41] Finally, it must be remembered that certiorari has always been understood to be a discretionary remedy of last resort. Accordingly, it would have been “incumbent upon the applicant to establish that the circumstances are such that the interests of justice necessitate the immediate granting of the prerogative or Charter … remedy by the Superior Court”: R. v. Duvivier (1991), 1991 CanLII 7174 (ON CA), 3 O.R. (3d) 49 (Ont. C.A.), at pp. 53-54, per Doherty J.A.; and see McGuigan, at para. 48.
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