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Private Prosecutions - Crown Stay. 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. . P.C. v. Ontario (Attorney General)
In P.C. v. Ontario (Attorney General) (Ont CA, 2020) the Court of Appeal considered a Crown stay of prosecution:[52] The appellant also challenges the application judge's failure to quash the stay entered by the Crown on the charge on which the justice decided to issue process.
[53] Section 579(1) of the Criminal Code authorizes the Attorney General or counsel instructed by the Attorney General for that purpose, at any time after any proceedings have been commenced and before judgment, to direct entry of a stay of proceedings. The stay entered in this case after the pre-enquete justice had decided to issue process on one count was timely: McHale, at paras. 85-86.
[54] Entry of a stay of proceedings under s. 579(1) of the Criminal Code is a core element of prosecutorial discretion. Exercise of that discretionary authority is reviewable only in cases of “flagrant impropriety": Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] S.C.R. at paras. 46, 49.
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[56] The appellant’s final allegation of error arises out of a comment the application judge made during the hearing and repeated in the final paragraph of her written reasons. In essence, she questioned whether the grievance of the appellant's partner which formed the basis of the offences alleged was not more properly addressed in the labour relations and civil context than by the institution of criminal proceedings.
[57] In our view, this observation on the part of the application judge was well warranted in the circumstances. After all, what set this entire train of events in motion was an unfavourable performance review. There followed a rapid escalation from these job performance beginnings to invocation of the blunt instrument of the criminal law.
[58] The observation of the application judge is also consistent with the purposes of the pre-enquete. Among those purposes are to ensure that spurious allegations, vexatious claims, and frivolous complaints barren of evidentiary support do not carry forward into a prosecution and to guard against the initiation of criminal proceedings to further claims that belong in another forum: McHale, at paras. 65, 74. . R v Olumide
In R v Olumide (Ont CA, 2014) the Court of Appeal reiterated the criteria for setting aside a Crown stay of a private criminal prosecution:[2] Section 579 of the Criminal Code gives the Attorney General the authority to direct a stay of proceedings at any time. The discretion to do so is reviewable only in the event of abuse of process. There is a presumption of prosecutorial good faith: see Krieger v. Law Society (Alberta) 2002 SCC 65 (CanLII) and R. v. Nixon 2011 SCC 34 (CanLII). The appellant has the onus of proving an abuse of process in the exercise of prosecutorial discretion.
[3] Mr. Olumide alleged that the Attorney General is in an inherent conflict of interest and this constitutes an abuse of process. The motion judge found that there was no evidence of abuse of process. Absent proof of an abuse, the discretion is not subject to review by the court: Campbell v. Ontario (A.G.) (1987), 1987 CanLII 4333 (ON CA), 35 C.C.C. (3d) 480 (Ont. C.A.), leave to appeal refused, [1987] S.C.C.A. No. 202. There is no evidence to point to an abuse of process. . R. v. Glegg
In R. v. Glegg (Ont CA, 2021) the Court of Appeal considers an appeal from a Crown stay of a private prosecution. Private prosecutions are quite rare and interesting, so I harvest them when I can. This is a longish one written by Watt JA, so if you're involved with a private prosecution it's worth a review.
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