Sergeant Craig Mushka - v. -, 2014 SKPC 179

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 179 Date: October 14, 2014 Location: Prince Albert _____________________________________________________________________________ Between: Sergeant Craig Mushka - and - Jordan Rodney Gamble & Jerry Lee Ballantyne ( ex parte ) Appearing: Staff Sergeant Craig Mushka For the Applicant DECISION ON EX PARTE APPLICATION F. M. DAUNT, J [ 1 ] Sergeant Craig Mushka, the affiant in these proceedings, seeks to lay an information before me pursuant to

section 810.2 of the Criminal Code . He has provided a document entitled “Consent of the Attorney General to an Information Under s. 810.2 of the Criminal Code ” signed by Krista L. Zerr, “Director, High Risk Offender Unit, Ministry of Justice and Attorney General, Province of Saskatchewan.” [ 2 ]

Section 810.2 of the Criminal Code states:

(1) Any person who fears on reasonable grounds that another person will commit a serious personal injury offence, as that expression is defined in

section 752, may, with the consent of the Attorney General, lay an information before a provincial court judge, whether or not

the person or persons in respect of whom it is feared that the offence will be committed are named.

(2) A provincial court judge who receives an information under subsection (1) may cause the parties to appear before aprovincial court judge. [3]

Section 2 of the Criminal Code states that “Attorney General,” for our purposes, “means the Attorney General or SolicitorGeneral of the province in which those proceedings are taken and includes his or her lawful deputy.” [4] I have been made aware that there is an internal memorandum dated December 12, 2011, on Ministry of Justice andAttorney General letterhead, from Don Morgan, Q.C., Attorney General at the time, to Gerald Tegart, then Deputy Minister of Justiceand Deputy Attorney General.

It reads as follows: Re: Delegation of Authority to Consent to the Laying of an Information Pursuant to s. 810.01 and s. 810.2 of the Criminal Code I hereby delegate my authority to consent to the laying of an information pursuant to s. 810.01 and s. 810.2 of the Criminal Code to thefollowing officials within the Public Prosecutions Division of the Ministry: the Executive Director, the Director of Prosecutors and theDirector of the High Risk Offender Unit. [5] For the reasons that follow, I find that the Director of the High Risk Offender Unit is not the “lawful deputy” of the AttorneyGeneral within the meaning of the Criminal Code.

There being no valid consent of the Attorney General, the information may not belaid. [6] This issue has been considered by the Supreme Court of British Columbia in Sowa v Attorney General of B.C. et al, 2003BCSC 1866 [Sowa]. In that case, the required consent was signed by the Assistant Deputy Attorney General of British Columbia. TheBC Crown Counsel Act specifically designates the person holding that office as a lawful deputy of the Attorney General for the purposesof

section 2 of the Criminal Code. In Sowa, the Court accepted the reasoning in R v Horne and Pitfield Foods Ltd. (1985), (SCC), 18 CCC (3d) 191 (S.C.C.) dismissing the appeal from the Alberta Court of Appeal decision reported at (1982), 1982 ABCA202 , 69 CCC (2d) 240. That case dealt with the meaning of “lawful deputy” for the purpose of consenting to prosecution underthe Lord’s Day Act.

The Alberta Court of Appeal held that, in the context of consenting to a prosecution, (quoting Anglin J. in Abrahamsv The Queen (1881), 1881 CanLII 27 (SCC), 6 SCR 10) “This power is of such a nature – so personal and so discretionary—that nothingbut specific legislation unmistakably applicable can justify its delegation.” The Court held that the power is quasi-judicial, notadministrative, as it is a decision to grant or withhold access to the courts. [7] In Alberta at the relevant time, there was no “specific legislation unmistakably applicable,” and so the Acting DeputyAttorney General of Alberta did not have sufficient authority to sign the consent to prosecute.

In Sowa, the Court found that there wasspecific legislation in B.C. appointing the Assistant Deputy Minister of Justice as a “lawful deputy” for the purposes of the CriminalCode. [8] In Saskatchewan, I could find no specific legislative authority authorizing the Director of the High Risk Offender Unit toconsent to the laying of an information under s. 810.2 of the Criminal Code, or even appointing the holder of that position moregenerally as a “lawful deputy” within the meaning of s. 2. [9] Both the federal and provincial

Interpretation Acts allow Ministers of the Crown to delegate their authority.

Section 24 ofthe federal Act and sections 23 and 23.1 of the provincial Act allow the delegation of powers. However, neither Act mentions the officeof Attorney General or Solicitor General specifically. The Minister of Justice is also the Attorney General. However, these are twooffices held by the same individual. The powers and duties of the Attorney General are separate and distinct from the powers and dutiesof a Minister of the Crown.

Neither Act is “specific legislation unmistakably applicable” to the delegation of consent to lay aninformation under s. 810.2. [10] I could find no other legislation that could be interpreted as delegating the Director of the High Risk Offender Unit as the“lawful deputy” of the Attorney General for the purpose of commencing proceedings under s. 810.2 of the Criminal Code. I find,therefore, that this information may not be laid until a valid consent is filed, signed by the Attorney General or his lawful deputy.

[ 11 ] Dated this 14 th day of October, A.D. 2014, at the City of Prince Albert, in the Province of Saskatchewan. ______________________ F. M. Daunt, J