



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Glegg, 2021 ONCA 100

DATE: 20210219

DOCKET: C65555

Strathy C.J.O., Watt and Zarnett
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Glegg

Applicant

(Appellant)

Leo Adler, for the appellant

Jeremy D. Tatum, for the respondent

Heard: November 12, 2020 by videoconference

On appeal from the
    judgment of Justice Clayton Conlan of the Superior Court of Justice, dated June
    20, 2018, with reasons reported at 2018 ONSC 3861.


Watt J.A.:


[1]

The appellant is a private informant. He laid an
    information before a justice of the peace in which he alleged that his ex-wife
    committed three indictable offences: abduction, perjury, and disobeying a court
    order.

[2]

A pre-enquete was scheduled to determine whether
    process should issue to compel the appellants ex-wife to appear to answer the
    charges.

[3]

The appellant prepared a detailed memorandum to
    support his case for the issuance of process at the conclusion of the
    pre-enquete. He retained counsel to assist him at the hearing. Both appeared at
    the pre-enquete.

[4]

An agent of the Attorney General (Crown counsel)
    also appeared at the pre-enquete. Before the justice of the peace heard the
    allegations of the appellant or the evidence of any witnesses, Crown counsel
    directed the clerk of the court to enter a stay of proceedings on the
    information laid by the appellant.

[5]

The appellant filed a Notice of Application in
    the Superior Court of Justice. He sought an order setting aside the stay of
    proceedings entered by Crown counsel and directing the justice of the peace to
    conduct the pre-enquete.

[6]

The respondent invoked Rule 34.02 of the
Criminal
    Proceedings Rules

for the Superior Court of Justice (Ontario)
SI/2012-7 (
CPR
) in answer to the appellants application. On the
    hearing, the motion judge dismissed the appellants application relying on Rule
    34.02 to do so.

[7]

The appellant appeals. He asks that we set aside
    the decision of the motion judge and the stay entered and direct that a
    pre-enquete be held to determine whether process should issue.

[8]

These reasons explain why I would dismiss the
    appeal.

The Background Facts

[9]

The issues raised on appeal do not require any
    elaboration of the circumstances underlying the offences the appellant alleges
    his ex-wife committed. A brief summary of the procedural history of the case
    will suffice.

The Information

[10]

On March 27, 2018 the appellant laid an
    information before a justice of the peace. The appellant alleged that his
    ex-wife, from whom he separated in 2001, had committed three indictable
    offences in the State of Florida and this province at various periods between
    2014 and 2016.

Preparation for the Pre-enquete

[11]

The appellant retained counsel to assist him in
    presenting his case for the issuance of process on the information. Counsel
    provided the local Crown with a copy of the materials on which the appellant
    relied and responded to questions asked and concerns expressed by the Crown
    about the manner in which the appellant proposed to prove the abduction allegation.

The Pre-enquete

[12]

About six weeks after a justice of the peace
    received the information laid by the appellant, the pre-enquete was commenced
    before a designated justice of the peace.

[13]

At the outset of the pre-enquete, before the
    justice of the peace heard the allegations of the appellant or the evidence of
    any witnesses, Crown counsel directed the clerk of the court to enter a stay of
    proceedings on the information under s. 579(1) of the
Criminal Code of
    Canada
.

[14]

Crown counsel explained his reasons for
    directing entry of the stay. The allegation of abduction was legally
    unsustainable in view of the litigation history between the appellant and his
    ex-wife. The count of disobeying a court order under s. 127 of the
Criminal
    Code
could not be established because other legislation expressly
    provides another punishment or mode of proceeding thus barring conviction
    under the section. And there was no reasonable prospect of conviction on the
    count alleging perjury.

[15]

In addition, Crown counsel explained that an
    essential witness on all counts, the appellant and accuseds daughter, would
    likely suffer significant trauma if required to testify. There was a lengthy
    history of parental conflict to such an extent that she obtained a court order
    permitting her to withdraw from parental control.

[16]

The justice of the peace did not conduct the
    pre-enquete once Crown counsel had directed entry of the stay of proceedings. No
    process issued.

The Notice of Application

[17]

Assisted by counsel, the appellant applied to
    the Superior Court of Justice for an order setting aside the stay of
    proceedings and directing the conduct of the pre-enquete. The appellant alleged
    that entry of the stay was not authorized by s. 579(1) of the
Criminal Code
, constituted a breach of his rights under s. 7 of
    the
Canadian Charter of Rights and Freedoms
, and was an abuse of process. The remedial
    provisions mobilized in support of the application included ss. 24(1) of the
Charter
, ss. 52(1) of the
Constitution Act,
    1982
,
and the extraordinary
    remedy of
mandamus
.

[18]

The Crown opposed the application and
    sought its summary dismissal under Rule 34.02 of the
CPR
.

The Decision of the Motion Judge

[19]

The motion judge heard submissions on whether
    the appellants application should be dismissed without a hearing under Rule
    34.02. After reserving his decision, he released written reasons dismissing the
    appellants application on the basis that it had no reasonable prospect of
    success. In doing so, he invoked Rule 34.02.

[20]

The motion judge was satisfied that the standard
    to be applied on the Crowns application under Rule 34.02 is a high one. He
    accepted that the direction that a stay be entered was part of the core
    discretion of the Crown. The exercise of this discretion was reviewable only on
    the ground of flagrant impropriety in its exercise. In this case, the motion
    judge observed, the Crown had provided detailed reasons for directing entry of
    the stay. The proposed prosecution was not in the public interest and there was
    no reasonable prospect of conviction on any of the proposed counts.

[21]

In the result, the motion judge was satisfied
    that there was no reasonable prospect that the appellants application could
    succeed. Rule 34.02 was engaged and the appellants application was dismissed
    without a hearing.

The Grounds of Appeal

[22]

The appellant takes issue with the decision of
    the motion judge. He says that the motion judge erred:

i.

in invoking Rule 34.02 to dismiss his
    application to set aside the stay and order the conduct of the pre-enquete; and

ii.

in failing to hold that the Crown had no authority to enter a stay
    under s. 579(1) before hearing the allegations of the appellant and the
    evidence of witnesses because there was no accused and proceedings had not
    been commenced as required by s. 579(1).

Ground #1: The Applicability of Rule 34.02

[23]

The specific focus of this ground of appeal
    is the applicability of Rule 34.02 of the
CPR
. However, the standard set out in that rule, there
    is no reasonable prospect that the application can succeed, requires
    consideration of the merits of the substantive errors alleged in the
    interpretation of s. 579(1)
of the
Criminal Code
.

The Arguments on Appeal

The Appellants position

[24]

The appellant contends that the motion judge properly
    stated, but erred in applying, Rule 34.02. The rule sets a rigorous standard.
    Much like a motion to strike a claim in civil proceedings, Rule 34.02 is a tool
    that must be used with care. If there is a reasonable prospect that an
    application will succeed, the rule should not be invoked. The approach should
    be generous and err on the side of permitting a novel, but arguable,
    application to proceed.

[25]

In this case, the prevailing jurisprudence has
    failed to correctly interpret the scope of the Crowns authority to direct a
    stay of proceedings under s. 579(1) at the pre-enquete. A hearing on the merits
    is required to resolve this issue.

[26]

The appellant submits that at the outset of a
    pre-enquete, before the allegations of the informant and the evidence of
    witnesses have been heard, the Crown cannot, as it did here, enter a stay of
    proceedings. Until a determination to issue process has been made, there is no
    accused, and proceedings have not commenced.

[27]

In addition, the motion judge applied the wrong
    test in failing to set aside the stay. The standard for a court to overturn the
    Crowns exercise of discretion is not flagrant impropriety, rather it is less
    demanding.

The Respondents position

[28]

The respondent contends that the motion judge
    properly invoked Rule 34.02 to dismiss the appellants application to set aside
    the stay and direct that a pre-enquete be held. This result could equally have
    been achieved under Rule 6.11 of the
CPR
or in the exercise of the authority discussed in
R. v.
    Cody
, 2017 SCC 31, [2017] 1 S.C.R. 659
    at para. 38.

[29]

The essence of the appellants position is
    that the Crown could not direct entry of the stay before the justice had
    conducted the pre-enquete and had decided to issue process. This is because of
    the wording of s. 579(1) of the
Criminal Code
and the provisions of s. 11(d) of the
Crown
    Attorneys Act,
R.S.O. 1990, c. C.49. This same argument
has been repeatedly rejected by this court in
    unequivocal terms that operate as binding precedent. The provisions of the
Crown
    Attorneys Act

do not
    mandate
otherwise.

[30]

A decision by
    the Crown to direct entry of a stay of proceedings under s. 579(1), the respondent
    contends, is a core element in the exercise of prosecutorial discretion. It is
    equally so whether its entry is in a public or private prosecution. Entry of a
    stay has to do with a decision about whether a prosecution will proceed or
    continue, against whom, and on what charge. This decision occupies the core of
    the sovereign authority peculiar to the office of the Attorney General.

[31]

Within this
    core of prosecutorial discretion, the courts cannot interfere except in
    circumstances of flagrant impropriety amounting to an abuse of process. This
    requires evidence that the Crowns conduct is so egregious that it undermines
    the integrity of the judicial process or results in trial unfairness. As for
    example, where it is the product of improper motive or grounded in bad faith.

[32]

In this case,
    the respondent says, the appellant has failed to provide any evidentiary
    foundation to put into play an arguable case of abuse of process. That the
    appellant disagrees with the decision of Crown counsel to direct entry of a stay
    moves no freight. The presumption that the exercise of prosecutorial discretion
    was
bona fide
, as Crown counsel explained when directing entry of
    the stay, remains in place. The motion judge did not err in failing to set
    aside the stay.

The Governing Principles

[33]

Several principles inform our decision on this
    ground of appeal. Some have to do with the applicability of Rule 34.02 to the
    decision under review. Others are concerned with the scope of s. 579(1) of the
Criminal
    Code
, in particular, with the temporal limits on its exercise. The
    remainder relate to the reviewability of stay decisions made by the Crown.

Rule 34.02

[34]

Rule 34, entitled,
Hearing of Pre-trial and
    Other Applications
,
is
    contained in Part III,
Trial Proceedings and Evidence
, of the
CPR
.
    Under Rule 34.02, the presiding judge may conduct a preliminary assessment of
    the merits of any pre-trial or other application. The assessment is based on
    the materials filed on the application. If the judge is satisfied on the basis
    of those materials that there is no reasonable prospect of success, the judge
    may dismiss the application without further hearing and inquiry.

[35]

Rule 34.02, headed
Preliminary Assessment of
    Application
, is in these terms:

The presiding judge may conduct a preliminary
    assessment of the merits of any pre-trial or other application on the basis of
    the materials filed, and, if satisfied that there is no reasonable prospect
    that the application could succeed, may dismiss the application without further
    hearing or inquiry.

[36]

Rule 34.02 is essential to effective and
    fair litigation. It promotes two goals: efficiency and correct results.
    Dismissing applications that have no reasonable prospect of success unclutters
    the proceedings, weeds out the hopeless, and draws the attention of the decision-makers
    where it should be  ensuring that those with a reasonable prospect of success
    proceed to adjudication on their merits:
R. v. Imperial Tobacco Canada Ltd
.,
    2011 SCC 42, [2011] 3 S.C.R. 45, at para. 19.

[37]

The procedure
    involved where
Rule 34.02 is invoked is informal,
    else it become antithetical to its purpose. When summary dismissal is sought,
    the affected party should put its best foot forward. The standard to be met by
    the party invoking the rule is demanding. This necessarily follows from the language
    no reasonable prospect that the application could succeed:
R. v.
    Papasotiriou-Lanteigne
, 2017 ONSC
    5337, 141 W.C.B. (2d) 157 at para. 19.

The Authority to Stay Proceedings

[38]

Section 579(1) of the
Criminal Code
authorizes the Attorney General or instructed
    counsel to direct the clerk or other proper officer of the court to make an
    entry on the record that the proceedings are stayed. Once the direction is
    given, the proceeding must be stayed.

[39]

The authority to
    enter a stay of proceedings is a core element of prosecutorial discretion. The
    authority extends to both public and private prosecutions:
Krieger v. Law Society of Alberta
, 2002 SCC 65, [2002] 3 S.C.R. 372, at para. 46. The
    role of the private prosecutor is parallel to, but not in substitution for, the
    role of the Attorney General. In the context of a pre-enquete, s. 507.1 makes
    this clear. Where the two roles come into conflict, the role of the Crown is
    paramount:
Re Bradley et al and The Queen
(1975), 24 C.C.C. (2d) 482 (Ont. C.A.),
    at p. 490.

Judicial Review of Stays Entered under Section 579(1)

[40]

Prosecutorial discretion is entitled to considerable
    deference. But it is not immune from all judicial oversight. Within the core,
    such as the discretion to direct a stay of proceedings, decisions are
    reviewable only for abuse of process:
R. v. Anderson
, 2014 SCC 41,
    [2014] 2 S.C.R. 167, at para. 48;
Krieger
,
at para. 32;
R. v. Nixon
, 2011 SCC 34, [2011] 2
    S.C.R. 566, at para. 31.

[41]

Abuse of process refers to Crown conduct that is
    egregious and seriously compromises the fairness of trial proceedings or
    undermines the integrity of the justice system:
Anderson
, at paras.
    49-50. The burden of proof for establishing abuse of process lies on the party
    who claims it. The standard of proof required is proof on a balance of
    probabilities:
Anderson
, at para. 52. See also,
R. v. OConnor
,
    [1995] 4 S.C.R. 411, at para. 69.

The Pre-enquete

[42]

The function of the pre-enquete is to determine if
    the process of the court, whether a summons or warrant, should issue to compel
    the person named in the information to attend before a justice to answer to the
    offences charged in the information:
R. v. McHale
, 2010 ONCA 361, 256
    C.C.C. (3d) 26, at paras. 10-11, 45, leave to appeal refused, [2010] S.C.C.A.
    No. 290;
R. v. Vasarhelyi
, 2011 ONCA 397, 272 C.C.C. (3d) 193, at
    para. 37, leave to appeal refused, [2011] S.C.C.A. No. 470. This decision must
    be based on the allegations of the private informant and any evidence adduced
    at the hearing:
Vasarhelyi
, at para. 37.

[43]

Under s. 507.1(3) of the
Criminal Code
,
    the Attorney General, without being deemed to intervene in the proceedings, is
    entitled to:

i.

a copy of the private information in Form 2;

ii.

reasonable notice of the pre-enquete hearing;

iii.

the opportunity to attend the pre-enquete;

iv.

the opportunity to cross-examine witnesses; and

v.

the opportunity to call witnesses and present evidence at the
    hearing.

See,
McHale
, at para. 47. See
    also, s. 11(d) of the
Crown Attorneys Act

and
Bradley
, at p. 490.

The Authority to Direct Entry of a Stay at the Pre-enquete

[44]

Section 579(1) of the
Criminal Code
permits the Attorney General or instructed counsel to direct entry of a stay
    at any time after
any
proceedings
in relation

to
an
    accused or defendant are commenced. The term proceedings is not defined. Modified
    by the indefinite adjective any, it would seem to take in a vast expanse of
    proceedings. Likewise, in relation to an accused. Nor is accused defined.

[45]

The statutory language at any time after any
    proceedings in relation to an accusedare commenced has been interpreted to
    mean any time after an information has been laid:
McHale
, at paras.
    85-87, 89;
Vasarhelyi
, at para. 49;
R. v. Pardo
(1990), 62
    C.C.C. (3d) 371 (Que. C.A.), at pp. 373-74;
Klippenstein v. R
., 2019
    MBCA 13, 152 W.C.B. (2d) 551, at para. 7, leave to appeal refused, 2019
    CarswellMan 783;
R. v. Linamar Holdings Inc
., 2007 ONCA 873, 76 W.C.B.
    (2d) 120, at paras. 9-10, leave to appeal refused, [2008] S.C.C.A. No. 33.
    Entry of a stay need not await a determination to issue process.

The Principles Applied

[46]

I would not give effect to this ground of
    appeal.

[47]

To begin, I am satisfied that what the Crown
    sought in response to the appellants motion to quash the stay and order the
    conduct of the pre-enquete fell within the sweep of Rule 34.02.

[48]

Among the jurisdictional sources invoked
    by the appellant was the authority of a judge of the superior court of criminal
    jurisdiction to grant orders in lieu of the prerogative writs of
certiorari
(to quash the stay as entered without jurisdiction) and
mandamus
(to
    compel the conduct of the pre-enquete). These remedies are available on
    applications under Rule 43 of the
CPR
.

[49]

The Crowns response to the appellants
    application was to seek its summary dismissal under Rule 34.02. The judge who
    heard the Crowns application was the motion judge on the appellants
    application, thus the presiding judge for the purposes of Rule 34.02.
    Accordingly, the summary dismissal authority was available to the motion judge
    in connection with the appellants original application which was an other
    application for the purposes of the rule. The remedy afforded by Rule 34.02 
    summary dismissal  could be granted if, but only if, the Crown met the
    standard required on the basis of the materials filed on the original motion.

[50]

Although Rule 34.02 appears in Part III of the
CPR
,
Trial Procedure and Evidence
, its language signals a broader application. This is
    consistent with the terms other application in the
Rule. The term
    application is exhaustively defined in Rule 1.03 as a proceeding commenced
    by notice of application in Form 1. It is of no moment whether the enabling
    legislation or other authority describes the proceedings as an application or a
    motion. The term proceeding includes an application or other hearing.

[51]

This construction of Rule 34.02 is also in
    harmony with the general principle underlying the
CPR

expressed in Rule 1.04 and the
    jurisprudence advocating use of the case or trial management power to weed out
    unmeritorious claims by summary process: see,
Cody
,
at para. 38.

[52]

Satisfied that the provisions of Rule 34.02 were
    available to the motion judge at the instance of the Crown, I will now explain
    why I am satisfied that the motion judge did not err in dismissing the
    appellants application in the exercise of his authority under Rule 34.02.

[53]

The appellants application, reduced to its
    essentials, sought two orders. He asked that the stay directed by the Crown be
    set aside. And he sought an order that a pre-enquete be held to determine
    whether process should issue to compel his ex-wife to answer to the charges
    contained in the information.

[54]

To set aside the stay, the appellant argued that
    s. 579(1) of the
Criminal Code

does
    not permit entry of a stay at the direction of the Crown before a determination
    has been made at the conclusion of the pre-enquete that process should issue.
    Amongst other things, this is because there is no accused until that time and
    proceedings have not been commenced.

[55]

Binding jurisprudence in this court and
    persuasive jurisprudence from courts of equivalent jurisdiction in other
    provinces hold that a stay may be entered, as here, prior to the justice
    hearing the allegations of the informant and the evidence of witnesses:
McHale
,
    at paras 89-90;
Vasarhelyi
, at para. 49;
Linamar
,
at para. 10;
Klippenstein
,
at para. 7;
Pardo
, at pp. 373-74.

[56]

In an information laid by a private informant
    and received by a justice under s. 507.1(1), an informant swears that they have
    reasonable grounds to believe that a named person committed one or more
    specified offences. In plain terms, the informant
accuses
the named
    person of having committed one or more crimes. In ordinary parlance, such a
    person would be described as an accused, a person accused of crime.

[57]

The pre-enquete falls within the language in s.
    579(1) of any proceedings in relation to an accused. And, self evidently,
    there are proceedings that have been commenced.

[58]

The appellant advances a second basis upon which
    he says the summary dismissal of his application reflects error. This has to do
    with the standard the motion judge applied in failing to set aside the entry of
    the stay as a flawed exercise of the Crowns discretion under s. 579(1).

[59]

This claim of error also fails.

[60]

The claimant must
    establish a proper evidentiary foundation before a court embarks on an inquiry
    into the exercise of prosecutorial discretion. This respects the presumption
    that prosecutorial discretion is exercised in good faith. It also accords with
    the principle that the prosecutorial authorities are not required to provide
    reasons for their decisions, absent evidence of bad faith or improper motives:
Anderson
, at para. 55.

[61]

In this case, Crown counsel provided lengthy
    reasons for entry of the stay. The record is bankrupt of any evidence of bad
    faith or improper motives.

[62]

For these reasons, I would reject the first
    ground of appeal.

Ground #2: The Timing of Entry of the Stay

[63]

The second ground of appeal alleges that the
    motion judge erred in failing to set aside the stay because it was entered
    prematurely at the outset of the pre-enquete.

[64]

This claim of error was an essential component
    of the first ground of appeal. It was rejected there, as it is here, on the
    basis of binding authority in this province and persuasive authority from
    courts of equivalent jurisdiction in other provinces. Nothing more need be
    said.

Disposition

[65]

For these reasons, I would dismiss the appeal.

Released: February 19, 2021 GRS

David Watt J.A.

I agree. G.R. Strathy C.J.O.

I agree. B. Zarnett J.A.


