





CITATION:
R. v. Maieron, 2011 ONCA 78



DATE:  20110127



DOCKET: C52419



COURT OF APPEAL FOR ONTARIO



Doherty, Laskin and Gillese JJ.A.



BETWEEN



Her Majesty the Queen



Appellant



and



Louigino Maieron



Respondent



Lisa Csele, for appellant



Louigino Maieron, appearing in person



Heard:  January 26, 2011



On appeal from the order made by Justice Norman Douglas of the
          Ontario Court of Justice dated May 20, 2010.



APPEAL BOOK ENDORSEMENT



[1]

We agree with the Crowns submission that the appeal judge wrongly refused
    to order a new trial and stayed the proceedings on the basis that the appeal
    judge believed the allegations to be trivial and not worthy of prosecution.  It
    is not for judges to second guess the decision to prosecute a particular
    allegation.

[2]

An appellate court may, in exceptional cases, having determined that the
    order made at trial should be set aside, decline to order a new trial and
    direct a stay.  The appellate court can do so where, in the circumstances, a
    new trial would not serve the interests of justice.  In the circumstances of
    this case, the focus of that inquiry should be on the impact of a new trial on
    the respondent at this point in the proceedings.

[3]

The respondent has been before the court on four occasions at personal expense
    and inconvenience.  The allegation against him is minor both in its nature and
    in respect of the particulars of this allegation.  The Crown has made its legal
    point through this endorsement which makes it clear that judges cannot
    interfere with the Crowns exercise of its discretion to initiate prosecutions,
    except in those few cases that come within the abuse of process doctrine.  A
    new trial at this stage would not serve any useful purpose and would cause further
    inconvenience and expense to the respondent.  He has done nothing to contribute
    to the prolonged litigation of this minor allegation, but is in a sense a
    victim of self-initiated judicial errors.

[4]

In oral argument, there was some suggestion that the respondent
    continues the conduct that gave rise to the charge.  If that is so, the prosecutorial
    authorities can lay a new charge and proceed.  Nothing in these reasons should
    be read as interfering with that discretion.  If the Crown chooses to do so, hopefully
    the merits of the allegation can be addressed without subjecting the respondent
    to appearances at three different court levels.

[5]

Nothing in this endorsement should be construed as any criticism of the
    Crowns conduct.  The problem is the product of judicial error.

[6]

The appeal is dismissed.


