Re: Jeffrey Green, 2011 ONCJ 63

Citation: Re: Jeffrey Green , 2011 ONCJ 63 ONTARIO COURT OF JUSTICE RE: JEFFREY GREEN [Informant/Applicant] & ATTORNEY GENERAL ( ONTARIO ) [Respondent] Reasons For Ruling On Preliminary Motion At

Section 507.1 Pre-Enquete Hearing Justice of The Peace Kevin V. Madigan Toronto, Ontario February 1, 2011 APPEARANCES:

Ken Lockhart Counsel for the Crown Alan Young Counsel for the Informant/Applicant Preliminary Motion By Informant/Applicant To Have Court Declare Pre-Enquete Hearing Presumptively Open To Public With Judicial Discretion To Exclude Public In Appropriate Circumstances – Motion Opposed By Crown Counsel – Hearing Held On Preliminary Motion – Nature of Pre-Enquete Hearing Under

Section 507.1 Criminal Code – Whether Pre-Enquete Hearing Must Be An “In Camera” Proceeding – Whether Pre-Enquete Hearing Presumptively Closed or Open To Public – Whether Publication Ban Sufficient To Protect Reputation/Privacy Interests of Proposed Accused & Societal Interest In Effective & Efficient Administration of Justice INTRODUCTION & HISTORY OF PROCEEDINGS This is a ruling on a preliminary motion which was brought during the course of a pre-enquete hearing under

section 507.1 of the Criminal Code of Canada [1] . The motion concerns the nature and character of the pre-enquete hearing. In particular, the motion requests that I declare the pre-enquete an open judicial proceeding to which members of the public and media have access. In the pre-enquete proper, Mr. Jeffrey Green [a private citizen] sought to lay criminal charges against a member of the Toronto Police Service. The information sworn by Mr.Green alleges unauthorized use of a computer and mischief in relation to data . This matter first appeared before me in court at 2201 Finch Ave.

West on Thursday August 26, 2010. On that date, both counsel for the Attorney-General and counsel for the informant/applicant were present in the courtroom. Appearing for the informant, counsel Alan Young indicated his intention to make a preliminary motion before I embarked upon the pre- enquete hearing. The preliminary motion was for an order declaring that the pre-enquete hearing was open to the public and permitting members of the public and the media to attend the hearing which was about to commence.

Since Crown counsel vehemently opposed the application, it was necessary to hold a hearing on the merits of the preliminary motion. Counsel for both parties were prepared to argue the issue and I was provided with factums and books of authorities by the parties. A hearing on the preliminary question took approximately 2.5 hours. It was acknowledged by both parties that pre-enquette hearings have traditionally been considered in camera proceedings , I made an interim ruling that members of the public should be excluded from the proceedings pending my final ruling on the preliminary question.

My interim ruling was intended to preserve the status quo by treating the proceedings as in camera . In light of the informant/applicant’s concession on this point in its factum, there was no objection to my interim ruling . Two members of the public were immediately affected by my ruling: a member of the media and a criminal lawyer [Mr. Joseph Markson] representing the prospective defendant. For several practical reasons, proceedings were adjourned after argument on the preliminary question. In other words, I did not commence the pre-enquete hearing itself on August 26.

Adjournment of the proceedings was intended to afford me an opportunity to consider whether to open the pre-enquete hearing to members of the public. The date chosen for continuation of the proceedings was Monday October 4, 2010. The pre-enquete proper was commenced and completed on October 4, 2010. However, decision on whether to issue process was adjourned to December 17, 2010. On December 17, I rendered oral judgment on the preliminary motion with a promise to provide written reasons for my ruling at a later date. These are my written reasons for my oral judgment on the preliminary motion.

On the same date, I decided to issue process against the person named in the information on only one of three proposed charges, i.e. unauthorized use of a computer .

LEGAL BASIS FOR INTERIM RULING As mentioned above, it was conceded by counsel for the informant/applicant that pre-enquete hearings have traditionally been regarded as in camera proceedings. There is ample jurisprudence to support this traditional view. This caselaw justifies my interim ruling as a means of maintaining the status quo . Jurisdiction for my interim ruling, which excluded members of the public and the media from this pre-enquete hearing, is found in the following jurisprudence: Re Cohen & The Queen [2] and Re Whitmore et al & The Queen [3] .

Although both cases were appealed, the appeal courts did not disturb the findings respecting the nature and character of the pre-enquete proceeding. In Re Cohen , Justice Kaufman of the Quebec Court of Appeal stated: “…the principal purpose of this

section [the pre enquete section] is to provide a justice with sufficient information to decide whether or not a summons or warrant should issue , and that by itself is sufficient justification to holding this hearing not only ex parte as the Code requires but also in camera ”.

Several pages later in the same judgment, Justice Kaufman mentioned “…the frequent necessity that the accused be taken by surprise in order to secure his presence before the proper authorities…This alone explains the custom to hold inquiries of this kind in camera…” In Whitmore , Justice Ewaschuk stated: “By reason of its preliminary nature, a pre-inquiry requires that an accused not be notified of the hearing lest he flee the jurisdiction to avoid service of process.

A pre-inquiry must also be held in camera to avoid unnecessary damage to the reputation of a prospective accused [where] the justice decides that no case is made out to justify process.” R. v. Friesen [4] is a judicial review decision which also tends to support the traditional view of pre-enquetes as in camera proceedings. It was a case in which process was denied to a private informant seeking to initiate a prosecution. The informant/applicant then sought judicial review of the refusal of the justice of the peace to issue process.

The parties sought directions, from the Ontario Superior Court of Justice, on several questions. One of the issues in Friesen was whether mandamus reviews of pre-enquete hearings should be held in camera or whether a publication ban on the proceedings would be sufficient. In ruling on this issue, Justice McWatt decided that “where the privacy interests of a proposed accused at the mandamus hearing are at stake, the [mandamus] hearing, or parts of it, should be ordered to be held in camera .” During the course of her judgment, Justice McWatt also indicated that, even after the enactment of

section 507.1 in 2002, pre-enquete hearings continue to be held in camera “regardless of the status of the informant”. In other words, pre-enquetes under 507.1 are to be held in camera . Even though these comments arguably amount to no more than obiter dicta [5] they do tend to support the traditional view of pre-enquetes as in camera proceedings. Another case which supports the traditional view, that pre-enquete hearings are in camera proceedings, is the decision of Justice Nordheimer in R. v. Shallow [6] .

In the course of his judicial review of a refusal by a justice of the peace to issue process, Justice Nordheimer explicitly and specifically mentions that a “… pre-enquete hearing itself is held in camera ”. Finally, the most authoritative warrant for my jurisdiction is found in the Ontario Court of Appeal decision in Southam Inc. v. Coulter [7] . However, the significance and application of this decision is explicitly and specifically disputed by counsel for the informant/applicant. Consequently, this decision will be examined and discussed in much greater detail below.

STATEMENT OF THE ISSUE & DEINITION OF KEY TERMS

The main issue before me is the nature of the pre-enquete hearing under

section 507.1 of the Criminal Code . In particular, is the hearing an in camera proceeding or a proceeding open to the public? In deciding the question before me, three answers are possible: first, that the pre-enquete hearing must be held in camera; second, that the pre-enquete hearing is presumptively closed to the public with a residual discretion to permit the attendance of the public; or third, that the pre-enquete hearing is presumptively open to the public with a judicial discretion to exclude the public in certain circumstances.

Certain related questions also arise for consideration: How does one reconcile a closed judicial proceeding with the open court principle ? Is a publication ban sufficient to protect the privacy and reputation interests of the proposed accused and to safeguard the interests of justice? Fundamentally, resolution of this issue is a matter of

interpretation of both the statutory wording and the applicable jurisprudence. Thus, it is imperative to acquaint oneself with the relevant statutory wording. For comparative purposes, Appendices “A” and “B” reproduce the statutory wording of both sections 507 and 507.1 in their entirety. To understand and appreciate the arguments and positions advanced by the parties, it is necessary and desirable to mention and define [8] two legal terms which are related but not identical. These terms are ex parte proceedings and in camera proceedings .

Ex parte proceedings are those in which one party makes an application for an order without notice to another party whose interest will be affected by that order. In camera proceedings refer to proceedings which are not open to the public. One can readily appreciate that the terms ex parte and in camera are similar but not identical. Thus, it is possible to imagine a judicial proceeding which is open to the public but which has not been brought to the advance notice of a party [example: an emergency application for an interim injunction in civil proceedings].

Further, it is possible to imagine a proceeding in which all parties participate but which is not open to the public [example: a hearing, involving all parties, which the presiding judge has closed to the public]. Although the specific issue in this case is whether the pre-enquete is an in camera judicial proceeding, it is necessary to consider jurisprudence and/or submissions which mention the term ex parte .

THE POSITIONS OF THE PARTIES The position of the informant is that pre-enquetes should be presumptively open court hearings and that the determination of whether or not a particular pre-enquete hearing should be in camera should be made on the particular facts of the individual case [9] . For the informant, Mr. Young invited me to declare that pre-enquetes were open to the public and the media on the basis of the open court principle jurisprudence which has been developing since the advent of the Charter .

In his factum, the informant/applicant concedes that pre-enquetes have traditionally been viewed as proceedings which are ex parte and in camera . According to counsel for the informant/applicant, this was the situation immediately before the enactment of

section 507.1 in 2002. However, when

section 507.1 was enacted, the new

section established a new regime for the laying of informations by members of the public. Under

section 507.1, pre-enquette proceedings were made open to the public in accordance with the open court principle . Counsel for the informant/applicant contended that sections 507 and 507.1 are two separate provisions which address different situations and which serve different interests. In other words, the two sections should be treated as independent and autonomous.

Section 507 addresses the laying of charges by professional informants such as police officers and peace officers.

Section 507.1 was enacted precisely to address the laying of charges by members of the public, i.e. non-professional informants . More precisely, according to Mr. Young,

section 507.1 was intended to enable and assist private citizens who were attempting to hold accountable public officials who were not being held accountable by the police and/or prosecuting authorities. If counsel for the informant/applicant is correct, then, as a consequence of this fundamental distinction between sections 507 and 507.1, the jurisprudence interpreting

section 507 is not relevant in interpreting

section 507.1. Thus, Southam Inc. v. Coulter , which is the authoritative precedent interpreting

section 507, would have no relevance or application to

section 507.1. This is a necessary implication of the submission that the two sections are independent an autonomous since they are intended to promote different interests.

To clarify, the position of the informant/applicant is that

section 507.1 was enacted during the “new era” during which the Supreme Court was developing, refining, and expanding the open court principle in accordance with the requirements of the Charter of Rights & Freedoms . Further, Mr. Young also took the position that, if Southam Inc. v. Coulter were being decided today, the holding might very well be different in light of the jurisprudence developing the open court principle . On behalf of the Attorney General of Ontario, Mr. Lockhart argued that pre-enquete hearings, by their very nature, must be held in camera .

Thus, according to the Attorney General, every pre-enquete hearing must remain closed to members of the public and the media. Disputing that there had been a change in the law as suggested by the informant/applicant, Mr. Lockhart argued that Southam Inc. v. Coulter was still the controlling precedent and that it mandated that all pre-enquete hearings be held in camera . While unhesitatingly conceding the importance of the open court principle to our free and democratic society, Mr. Lockhart that submitted that the pre- enquete hearing was exempt from its application. According to Mr.

Lockhart, sections 507 and 507.1 must be read together to form an integrated statutory provision respecting the laying of criminal charges. In short, the two sections are not autonomous but interdependent. More precisely, any caselaw purporting to interpret

section 507 has a direct bearing on the

interpretation of

section 507.1. In particular, there is authoritative jurisprudence interpreting

section 507 which applies to

section 507.1 and which confirms that proceedings under

section 507.1 are indeed proceedings which are both ex parte and in camera . STATUTORY WORDING & LEGISLATIVE INTENT It is imperative to remember that, first and foremost, the question before me is one of statutory

interpretation. What is the precise wording employed in the relevant statutory provision? What is its legislative intent? In considering these and related questions, it is useful and convenient to consult the statutory wording of both sections 507 and 507.1. For comparative purposes, sections 507 and 507.1 appear respectively in Appendices A & B of this judgment.

Section 507.1 was enacted in 2002. Prior to that time, private informants laid criminal informations pursuant to

section 507. The enactment of

section 507.1 was coincident with certain amendments to

section 507. The net effect of the new

section and the amendment of the old

section was to create two distinct classes of informants. The amended

section 507 addressed the laying of charges by professional informants such as police officers and other law enforcement personnel.

Section 507.1 addressed the situation of the private informant . Unfortunately, the statutory wording in

section 507.1 is not particularly helpful. This statutory provision simply does not indicate whether the

section 507.1 pre-enquete is intended to be ex parte or in camera . Surprisingly, neither term is mentioned explicitly. Counsel for the informant/applicant drew distinctions between the statutory wording of sections 507 and 507.1. In particular, Mr. Young noted that, whereas section 507(1)(

a) specifically requires an ex parte hearing,

section 507.1 fails to mention the term. Further,

section 507.1(8) seems, by implication, to jettison the requirement of an ex parte hearing. In short, this incorporation provision excludes the very subsection of

section 507 which specifically requires an ex parte hearing in the case of professional informants such as police officers. Technically, the ex parte requirement in section 507(1)(

a) means that the application to charge a person by a professional informant is made without prior notice to the proposed defendant. In other words, the term ex parte in

section 507 does not, in and of itself, exclude members of the public from the hearing. However, it may, ultimately, have some indirect bearing on the issue. In Southam Inc. v. Coulter [10] , an important case which will be discussed in greater detail below, Justice Krever for the Ontario Court of Appeal mentioned the ex parte designation in section 507(1) as one of several reasons for concluding that

section 507 envisioned an in camera hearing. The obvious question that Mr. Lockhart posed is the following: If

section 507.1 envisions a pre-enquete hearing which is presumptively open to the public, why does the statutory provision not mention that intention explicitly. One would think that departure from the traditional view of the pre-enquete would warrant specific mention so as to avoid frustration or misinterpretation of the claimed legislative intent. In R. v. Edge [11] , an Alberta Provincial Court judge reviewed the differences in wording between sections 507 and 507.1. For Judge Allen, the essential difference between the two sections concerned the necessity, under

section 507.1(3)(a), of hearing the evidence of witnesses, above and beyond the bare allegations of the informant. However, the judge did indicate that the informant could satisfy the witness requirement as long as his evidence could establish a prima facie case on all the elements of the offence. The witness

requirement in

section 507.1 is apparently justified by the distinction between professional and private informants. By the very nature of their work, professional informants must necessarily rely upon the reports and hearsay provided by other persons. In the course of his judgment in R. v. Edge , Judge Allen also mentioned the requirements in

section 507.1(3)(b)(c)(

d) facilitating participation of the Attorney general in the pre-enquete proceeding. Indeed, as mentioned by Crown counsel in the case before me, these statutory requirements are effectively preconditions to the issuance of process by the presiding judicial officer. These statutory preconditions tend to support the position of Mr. Lockhart that the legislative intent of

section 507.1 is to promote greater and earlier Crown scrutiny of private complaints. Since the statutory wording itself is inconclusive on the issue which I must decide, the submissions also addressed the legislative intent of Parliament in enacting the 2002 amendments. In making submissions for the informant/applicant, Mr. Young invited me to ascribe very specific intentionality to the amendments. In his view, the amendments clearly reflected that Parliament was intending to serve different interests under the amended

section 507 and the new

section 507.1. Whereas

section 507 was intended to serve the interest of efficiency in the case of professional informants,

section 507.1 was intended to serve the interests of greater transparency in the case of private informants seeking to hold accountable public officials suspected of criminal wrongdoing. If Mr. Young’s position on legislative intent were accepted by me, I would be required to declare the pre-enquete hearing presumptively open to the public so as not to frustrate the greater transparency aimed at by

section 507.1. In responding to this line of argument, counsel for the Crown gave a different account of the interests served by the new

section 507.1. He specifically disputed the claim that the statutory purpose was greater transparency for holding public officials accountable. Mr. Lockhart urged me to find that the real legislative intent behind

section 507.1 was greater scrutiny by the Crown of privately-initiated criminal prosecutions. In other words, 507.1 was intended to afford the Crown an earlier opportunity to vet proposed prosecutions which were frivolous, vexatious, or lacking in merit or proof. Given that the threshold for issuance of process was so low, there was no need for greater transparency in pre-enquete hearings. In the course of her judgment in R. v. Friesen [12] Justice McWatt made the following comment respecting the purpose of 507.1: “the new

section was created to provide greater scrutiny at an early stage to private prosecutions and to act as a means to prevent frivolous and vexatious prosecutions”. Although this comment arguably qualifies as obiter dicta , this comment by an Ontario Superior Court judge does tend to support the Crown’s view of the purpose behind the enactment of

section 507.1. In the recently released judgment of the Ontario Court of Appeal in R. v. McHale [13] , Justice Watt made the following comments, respecting the supervisory control of the Attorney General over all prosecutions. Indirectly these comments address the legislative intent underlying

section 507.1: 57 The Attorney General, and his or her agent the Crown Attorney, represents the Sovereign in the prosecution of crimes. The Criminal Code makes provision for private prosecutors. The role of the private prosecutor is parallel to, but does not serve as a substitute for, the role of the Attorney General. And where the two roles conflict, the role of the Attorney General prevails.

Where the Attorney General considers that the interest of justice require his or her intervention, the Attorney General is entitled to interfere, to take over the prosecution and to terminate or continue it as she or he considers appropriate: see Bradley , at p. 169. 58 In express terms, s. 507.1 authorizes the participation of the Attorney General in what is usually an ex parte and in camera proceeding involving only the informant and his or her witnesses. Nothing in the

section curtails the authority of the Attorney General once she or he decides to participate in the pre-enquete. 65

Section 507.1 also puts in place several measures to assure scrutiny of prospective private prosecutions to stifle the procession of frivolous or vexatious prosecutions before the courts. The presiding judicial officer must be either a designated justice or a provincial court judge. The Attorney General, the Chief Law Officer of the Crown, is entitled to notice of the pre-enquete, a copy of the information and the right to participate in the evidentiary hearing. 40 ….

The application was dismissed on the basis that, once the Attorney General had assumed responsibility for the prosecution, the Crown had the exclusive right to determine whether the charges would be withdrawn or prosecuted, whether the informant was a state agent or private complainant. 41 The accused appealed to this Court. In giving the judgment of the Court dismissing the appeal, Arnup J.A. said at p. 169:

• The Attorney-General, and his agent the Crown Attorney, represent the Sovereign in the prosecution of crimes.

The role of the private prosecutor, permitted by statute in this country, is parallel to but not in substitution for the role of the Attorney-General, and where the two roles come into conflict, the role of the Crown's prosecutor is paramount, where in his opinion the interests of justice require that he intervene and take over the private prosecution. • 42 Although the circumstances in Bradley depict the obverse of the coin displayed here, this Court's decision confirms the untrammeled right of the Attorney General to intervene in a private prosecution and to determine its future course - prosecution or withdrawal.

The intervention there occurred after process had issued, but the plenary authority of the Attorney General was not made contingent upon the issuance of process. The comments of Justice McWatt in Friesen and those of Justice Watt in McHale tend strongly to endorse the position of Crown counsel, Mr. Lockhart, respecting the purpose for enactment of

section 507.1. To the best of my knowledge, there is no caselaw which specifically and explicitly supports the view of the informant/applicant that the purpose of enacting

section 507.1 was the promotion of greater transparency in the laying of private complaints. Further support for the Crown’s view of the legislative intent underlying

section 507.1 is found in Crown Attorney’s Act [14] . In an effort to support their respective positions, each party cited comments from Hansard . Although both parties conceded that the Hansard comments were not determinative, they indicated that I was entitled to consider these comments as a piece of the puzzle in determining the legislative intent underlying

section 507.1. Based upon careful consideration of the submissions of counsel and detailed review of the jurisprudence respecting Crown supervision over all prosecutions, my view is that the legislative intent underlying

section 507.1 is to promote earlier Crown control over criminal prosecutions. As Mr. Lockhart submitted, Crown control over all prosecutions is well established in Candian law [15] . To avoid the prospect of innocent parties being the victim of unmeritorious prosecutions, the earlier that control is exercised the better. Earlier intervention by the Crown would prevent innocent parties from the expense, embarrassment and inconvenience of having to defend themselves against frivolous, vexatious, or otherwise unmeritorious prosecutions which would likely be discontinued after the Crown had reviewed the file.

Section 507.1 merely affords the Crown an earlier opportunity to fulfill its mandate. Even though I have accepted the Crown’s position on the legislative intent underlying

section 507.1, this finding, in and of itself, does not resolve the issue of whether the

section 507.1 pre-enquete hearing is intended to be an in camera proceeding. However, it may have some indirect bearing on the resolution of that issue. Where, as in this case, the statutory wording is not sufficient to resolve the question of

interpretation and application, recourse must be had to the jurisprudence which has interpreted the relevant statutory provisions. Counsel for both parties cited caselaw which they claimed supported their respective positions. However, the most important case mentioned was Southam Inc. v. Coulter which will now be discussed in the greater detail it deserves. THE RULING IN SOUTHAM INC. v. COULTER RESPECTING

SECTION 507 PRE-ENQUETE HEARINGS Of all the jurisprudence submitted and cited Southam Inc. v. Coulter is the most important. Indeed, it is cited by virtually all of the other caselaw to which I was referred. Its importance arises from both its material facts and from level of court which rendered the decision. In the Crown’s view of the question before me, the Southam case is both authoritative and dispositive. In the informant’s view, the case is simply not applicable. In my view, if Southam does apply, I agree with the Crown that that precedent is dispositive of the issue before me.

Due to the potential importance of the case, it is worthwhile to recall the material facts and circumstances which ultimately prompted the Southam ruling. The case involves

interpretation of

section 507, before the enactment of

section 507.1. During the relevant time period, all privately-laid informations were laid pursuant to 507. Indeed, this is the very issue before me, i.e. whether the reasoning in Southam should apply to pre-enquetes held pursuant to the newer

section 507.1

In Southam , a private citizen had attempted to lay criminal charges against senior government officials and RCMP officers. At the pre- enquete, the justice of the peace had, after hearing submissions from the interested parties, ruled that the pre-enquete proceeding be held in camera . Even before the justice had completed the pre-enquete, a certiorari application was made to a judge of the Ontario Superior Court of Justice who quashed the ruling of the justice of the peace. Appeal was then made to the Ontario Court of Appeal. For the Ontario Court of Appeal, the principal issue was whether a

section 507 pre-enquete proceeding “must or should be held in public”. Ultimately, the Court of Appeal decided that the proceeding, due to its very nature and purpose, must be held in camera . In the course of delivering the judgment for the Ontario Court of Appeal, Krever J.A. stated the following: It would be anomalous, to say the least, if as some of the respondents would have it, the hearing under s. 507(1) of the Code is one which everyone has a right to attend except the person most affected by its potential outcome, that is, the person alleged in the information to have committed an offence.

I have concluded that, in the light of the purpose of s. 507(1) of the Code, the only reasonable

interpretation that can be given to it is that it requires that the hearing be in camera. Any other construction would often lead to harmful consequences to the person named in the information. It must not be forgotten that the outcome of the pre-inquiry may well be that no prosecution will ensue. Yet during the hearing unfounded, even outrageous, allegations of misconduct may be made against the absent target of the information. These allegations would be made on an occasion of privilege.

If the argument were accepted that the hearing must be conducted in open court, what was said at it could be reported in the media without fear of the consequences. Section 4(1) of the Libel and Slander Act, R.S.O. 1980, c. 237, cloaks the media with immunity with respect to a fair and accurate report of proceedings heard before a court of justice if published contemporaneously with the proceedings. In determining that a pre-enquete, by its very nature and purpose, must be held in camera , the Ontario Court of Appeal articulated the interests at stake for the proposed defendant and for society.

The passage cited immediately above articulates the reputation and privacy interests of the person named in the information. However, in other passages, Justice Krever actually drew heavily on the parallel between justices issuing search warrants and justices deciding whether to issue process at the request of a private informant. Indeed, he quoted extensively from the judgment of Justice Dickson in AG of Nova Scotia et al v. MacIntyre [16] and specifically cited “protection of the innocent” and the “effective administration of justice” as legitimate reasons for creating exceptions to the open court rule .

It is imperative to appreciate that, in rendering its judgment that

section 507 pre-enquete hearings must be held in camera , the Ontario Court of Appeal was cognizant of the open court principle . In the course of his judgment, Justice Krever specifically discussed both the MacIntyre and Edmonton Journa l cases which will be discussed below. This point is important because it tends to undermine, to some extent, the informant/applicant’s position that the Southam holding might have been different had it been decided in light of more recent jurisprudence vindicating and indeed extending the open court principle .

Without doubt, Justice Krever’s reasons for judgment clearly articulate that pre-enquete hearings enjoy a justifiable exemption from the application of the open court rule . RECENT ONTARIO COURT OF APPEAL DECISION IN MCHALE Perhaps the strongest case marshaled by the Crown, to support its position, was the recent decision of the Ontario Court of Appeal in R. v. McHale [17] . At issue in that case was the Crown’s withdrawal of the information before the presiding justice had commenced to hear and consider evidence at a pre-enquete hearing.

In other words, the Crown had withdrawn the charge before any inquiry into the issuance of process had begun. In the course of giving judgment for the Court of Appeal that the withdrawal was indeed premature, Justice David Watt stated the following: “To hold that the authority to withdraw arises immediately upon the decision to issue process does not prejudice the interests of the persons named as responsible for the crimes alleged in the private information. The pre-enquete is conducted in camera .

A decision by the Attorney General to withdraw the information once the decision to issue process has been made requires no public appearance, nor any response by those named in the information.” Counsel for the informant/applicant had submitted that, earlier in his judgment, Justice Watt had stated that “A pre-enquete is usually an ex parte proceeding held in camera ”. Mr. Young drew my attention particularly to the word “usually” which seems to suggest Justice Watt was indicating that a pre-enquete need not always be held in camera . I do not share Mr. Young’s

interpretation of Justice Watt’s comment. In my view, the adverb “usually” modifies the phrase “ex parte” and not the phrase “in camera” which appears further along in the sentence. My suspicion is that Justice Watt is simply noting that the vast majority of pre-enquete hearings occur under

section 507 which involve professional informants and where the Attorney General is not normally present. In contrast, the Attorney General must

be given the opportunity to participate in a

section 507.1 pre-enquete hearing. The holding of the Ontario Court of Appeal in McHale tends to refute the informant/applicant’s submission that Southam would not be decided the same way today in light of the developing open court jurisprudence. The very recent decision of the Ontario Court of appeal in R. v. Canadian Broadcasting Corporation [18] tends to underscore this very point. In that case, which was decided within six months of McHale , the Ontario Court of Appeal applied the open court principle to grant access to the media to exhibits filed at a preliminary hearing.

In reviewing the decision in McHale , I ultimately agree with the Crown that Justice Watt’s assertion that “the pre-enquete is conducted in camera ” forms part of his reasoning in ruling on the main issue before the Court of Appeal in that case. The significance of McHale is Justice Watt’s affirmation of the Southam holding that a pre-enquete hearing must be held in camera . THE OPEN COURT PRINCIPLE Counsel for the informant/applicant drew my attention to relevant jurisprudence establishing the open court principle .

This authoritative caselaw makes it abundantly clear that openness is the rule and exclusion of the public and the media the rare exception. All of the relevant caselaw involved decisions from the Supreme Court of Canada. The more recent caselaw demonstrates the extent to which Charter values have informed the jurisprudence which has vindicated and extended the open court rule . AG of Nova Scotia et al. v.

MacIntyre [19] was an appeal to the Supreme Court of Canada from a decision declaring that members of the public were entitled to inspect the informations supporting search warrant applications and, further, that they were entitled to be present in open court when the search warrants were issued. In delivering judgment for the Surpreme Court majority , Justice Dickson announced that members of the public were entitled to inspect search warrant informations only in cases where the search resulted in the seizure of contraband or evidence.

Further, he declared that the judicial act of issuing a search warrant was to be performed in camera and, thus, members of the public were not entitled to be present at the issuance of search warrants. In resolving the issues in that decision, Justice Dickson indicated that “covertness is the exception and openness the rule”. He then proceeded to justify a departure from the openness principle on the basis of “protection of the innocent from unnecessary harm” and “the effective administration of justice”.

In other words, either the potential damage to the reputation of innocent parties whose premises had been searched without anything being found or the potential for destruction of evidence would be sufficient to justify an exception to the openness rule . Ironically, as was mentioned above, Justice Dickson’s reasoning would be adopted by Justice Krever as support for the Southam ruling that pre-enquete hearings must be held in camera . In Edmonton Journal v.

AG for Alberta et al . [20] the issue was the constitutionality of certain restrictions on media reporting of judicial proceedings respecting matrimonial matters. Review of this case is complicated by the number of concurring and dissenting opinions, none of which actually qualify as a majority opinion. Although the reasoning in the various opinions in this Supreme Court of Canada decision is somewhat difficult to disentangle and isolate, all judges underscored the importance of the guaranteed freedom of expression to a free and democratic society. In Dagenais v. Canadian Broadcasting Corp. [21] and R v.

Mentuck [22] , the Supreme Court of Canada considered the jurisdiction of Canadian courts, at common law, to limit public and media access to judicial proceedings and to details of cases revealed in the course of such judicial proceedings. In each of these cases, the issue was the appropriate scope of a publication ban in the era of the Charter and the open court principle . For my purposes, it is sufficient to address the reasoning in Mentuck which incorporated and refined the reasoning in Dagenais .

The Supreme Court stated the following: In assessing whether to issue common law publication bans, therefore, in my opinion, a better way of stating the proper analytical approach for cases of the kind involved herein would be: • A publication ban should only be ordered when: • (

a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and •

• (

b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice. Although Dagenais and Mentuck are important precedents which vindicate the open court principle , it is crucial to appreciate that the Dagenais/ Mentuck test applies only in situations where there is a discretion respecting the imposition and/or the scope of the publication ban.

In other words, the test would have relevance to resolution of the question before me only if I were to conclude that the pre-enquete hearing need not always and necessarily be in camera . Re Vancouver Sun [23] involved an appeal to the Supreme Court of Canada respecting orders made by lower court judges under Canada’s anti-terrorism legislation in

section 83.28 of the Criminal Code . The question was whether certain related hearings should have been held in camera . In answering that question, the Supreme Court majority indicated that

section 83.28 [24] must be interpreted consistently both with the

preamble to the Anti-Terrorism Act and with the fundamental characteristics of the judicial process, including the open court principle . According to the majority, this principle is a cornerstone of the common law and a hallmark of a democracy. Ultimately, the Supreme Court declared that the open court principle applies to all judicial proceedings and that the Dagenias/ Mentuck test should be applied to all discretionary judicial rulings which seek to limit freedom of expression by the media.

The particular significance of the Vancouver Sun case seems to be the specific holding that an investigative hearing , under the anti- terrorism provisions, need not be held in camera , at least in the particular circumstances of that case. Indeed, the case seems to be authority for the proposition that such judicial investigative hearings should be presumptively open to the public with a residual discretion to exclude the public and the media in appropriate circumstances.

Counsel for the informant/applicant cited this case as support for his contention that the Southam ruling had been overtaken and superceded by more recent jurisprudence which had extended the open court rule beyond its application when Southam was decided. Another recent open court principle case is Toronto Star Newspapers Ltd. v. Ontario [25] . In that case, the Crown, in an attempt to protect the identity of a confidential informant, had sought and received an order sealing search warrants and the informations used to obtain the warrants.

Ultimately, the Supreme Court of Canada asserted that judicial proceedings are presumptively open and that public access will be barred only after the appropriate court has determined, under the Dagenias/ Mentuck test, that public access or disclosure would undermine the interests or administration of justice. In the words of Justice Fish: “It is now well established that court proceedings are presumptively opening Canada.

Public access will be barred only when the appropriate court, in the exercise of its discretion, concludes that disclosure would subvert the ends of justice or unduly impair its proper administration.” It is important to appreciate that Justice Fish’s comments address the situation where a court has discretion whether to permit or deny access. These comments do not seem to fit the situation where the judicial proceeding, by its very nature and purpose, necessarily requires the exclusion of the public. Very recently, the Ontario Court of Appeal rendered its judgment in R. v.

Canadian Broadcasting Corporation [26] . The decision is so recent that it was not cited to me in submissions. In that case, four correctional officers were charged in connection with the death of a 19-year-old female inmate. The media sought access to exhibits from the preliminary hearing. In particular, the CBC sought access to pictures, documents, and recordings for use in a proposed documentary respecting the death of the inmate. Ultimately, the Court of Appeal recognized the media’s constitutional right to access the exhibits.

Writing for the Court, Sharpe J.A. reaffirmed the importance of the open court principle . Further, Justice Sharpe indicated that, absent proof of some countervailing interest sufficient to satisfy the Dagenais/ Mentuck test, the right to access the exhibits included access to everything filed with the court and the right to make copies. Upon review of the open court jurisprudence, it is readily apparent that openness is the rule and exclusion of the public the exception.

To quote Justice Fish in Toronto Star Newspapers yet again, there is “an unbroken line of authority in this Court [the Supreme Court of Canada] over the past two decades” which has developed, vindicated and extended the open court rule . Any exception must meet the high standard of subverting justice or impairing its proper operation. The question before me places me squarely in the position of determining whether the pre-enquete hearing fits within the rule or the exception.

RECONCILING THE CONFLICTING RULINGS IN SOUTHAM, MCHALE, & RE VANCOUVER SUN In answering the question before me, perhaps one of the most difficult challenges has been to reconcile the holdings in Southam Inc. v. Coulter and Re Vancouver Sun . On the one hand, in Southam , the Ontario Court of Appeal ruled that a pre-enquete hearing must be held in camera . Without any discussion or elaboration, that holding was recently and authoritatively affirmed by the recent Ontario Court of Appeal ruling in McHale .

On the other hand, in Re Vancouver Sun , the Supreme Court of Canada held that judicial investigative hearings under Canada’s anti-terrorism legislation need not necessarily be held in camera . The obvious question that arises is why an inquiry into possible ordinary criminal wrongdoing would require an in camera hearing whereas an inquiry into possible terrorist activity may or may not require an in camera hearing. Indeed, this is an excellent question deserving of a convincing answer.

To understand the meaning and import of the holding in Re Vancouver Sun [27] , it is necessary to understand the context in which the case was decided. The case arose in the context of prosecutions of persons for involvement in terrorist activity against two Air India flights in 1985. In 2003, during the trial of the accused terrorists, the prosecution subjected a potential Crown witness to an investigative hearing under the relatively new anti-terrorist legislation which had been enacted in Canada after the events of September 11, 2001.

Ultimately, the Supreme Court of Canada ruled, among other things, that the investigative hearing need not, and should not in this particular case, be held in camera . In reviewing the decision in Re Vancouver Sun , there is one particular passage which might help to explain the case’s holding in terms of the particular circumstances of that case. In writing the majority opinion, Justices Iacobucci and Arbour said the following: Here, for instance, the Named Person now takes the position that the proceedings should be held in public and no longer wishes that his or her identity be protected.

Although this is only one factor to consider and certainly not dispositive of the issue, it removes in part the concerns that the investigative judge may have had regarding the privacy interests of the Named Person. The only factors militating in favour of a degree of secrecy in this case are the factors related to the protection of an ongoing investigation or for other vital but unstated reasons.

In a case in which so much of the information relating to the offence is already in the public domain, and in which recourse to a judicial investigative hearing is sought in the midst of an ongoing non-jury trial, the case for extensive secrecy is a difficult one to make and was not made out here. In my view, this passage explains the particular circumstances which prompted the Supreme court majority to conclude that the judicial investigative hearing in that case need not and should not be held in camera .

In short, the reputation/privacy interests of the named person and the societal interest in protection of an ongoing investigation did not require an in camera proceeding. In other passages, the Vancouver Sun majority had indicated that, depending upon the circumstances, there might be cases which do require in camera proceedings. The majority also referred to the discretion given to the presiding judicial officer in

section 83.28(5)(

e) to order that the investigative hearing be held in camera . However, the majority did stress that, in exercising this discretion, “…judicial officers should reject the notion of presumptively secret hearings”. Perhaps this last comment reflects the majority’s preference that such judicial supervision of evidence-gathering take place in public so as to prevent suspicion that the judiciary had become compromised or sullied by involvement in secretive and coercive proceedings. The important point is that the holding in Re Vancouver Sun is dependent upon its material facts. Indeed, the judgment of the majority did indicate that not all

section 83.28 cases would be the same. Hence, the need for the exercise of judicial discretion. However, the circumstances mentioned in the majority opinion do explain why the majority concluded that the relevant interests, for all practical purposes, were no longer at stake. Aside from the context in which Vancouver Sun was decided, there are several independent reasons which, when considered cumulatively, cause me to prefer the holding in Southam to the holding in Re Vancouver Sun . Even if the holding in Vancouver Sun is not as limited as I have suggested, there other reasons are sufficient to justify my application of Southam to resolve the particular question before me.

First, the judgment in Southam addresses the very fact situation before me. In other words, the factual scenario is identical, i.e. the attempt by a private informant to initiate a prosecution. The Ontario Court of Appeal was specifically and explicitly addressing whether a

section 507 pre-enquete hearing must be held in camera . In our common law system, similar cases should yield similar outcomes and different cases should yield different outcomes. The similarity between cases must be measured in terms of the identity or similarity of the material facts in the cases under comparison. In other words, the virtual identity of the material facts in Southam and in the case before me dictate that my decision should be governed by the holding in Southam rather than by the holding in Vancouver Sun . Second, the reasoning in Southam is compelling.

In that decision, Krever J.A. masterfully articulates the main interests which are potentially at stake in the context of a pre-enquete hearing. Those interests are the privacy/reputation interests of innocent parties who are wrongly accused and the public interest in the effective and efficient prosecution of criminal wrongdoing. In my view, Justice Krever convincingly demonstrates why the pre-enquete hearing itself should be exempt from application of the open court principle .

Third, the affirmation by Justice Watt in the recent McHale decision leads me to believe that the Ontario Court of Appeal, regards Southam as the controlling precedent on the issue of whether pre-enquete hearings must be held in camera . Although there was no explicit discussion of the Southam holding, the Ontario Court of Appeal employed reasoning in which the holding in Southam formed part of the reasoning by which the Court of Appeal decided the issue in McHale . Finally, the recent holdings in McHale and in R. v.

Canadian Broadcasting Corporation completely refutes the informant/applicant’s submission that the ruling in Southam had been superceded by more recent jurisprudence extending the open court rule . McHale affirmed the holding in Southam . Several months later the Ontario Court of Appeal vindicated the open court rule in R v. CBC by granting the media access to court exhibits at a preliminary hearing. The juxtaposition of these two recently decided cases leads me to conclude that the Ontario Court of Appeal still regards the pre-enquete hearing as exempt from application of the open court principle .

WHETHER PUBLICATION BAN SUFFICIENT In considering the question before me, one could legitimately ask whether a publication ban would be sufficient. Would that solution not be sufficient to safeguard the privacy/reputation interests of the proposed accused and the interests of justice? Two Superior Court of Ontario decisions, involving judicial review of refusals by justices of the peace to issue process, were mentioned during submissions. However, these cases are of limited value due to their particular material facts .

In particular, these decisions purported to address the appropriateness of publication bans at the judicial review of the lower court refusal to issue process. They did not specifically address the appropriateness of a publication ban at the pre-enquete hearing itself. In R v. Parkinson [28] , a private citizen had attempted to charge two OPP officers with the offence of mischief in the performance of their law enforcement duties. At the pre-enquete, the justice of the peace declined to issue process against the police officers. Judicial review of the refusal to issue process was sought.

The primary question for the Ontario Superior Court of Justice was whether the justice of the peace had committed jurisdictional error in refusing to issue process. However, as a preliminary matter, the Superior Court was required to determine whether the judicial review hearing should be held in camera or open to the public or whether some limited publication ban was sufficient. In determining the preliminary issue, Justice Marshall decided that, given that policing was an issue of great public importance, the judicial review hearing should be as open as possible.

However, to protect the Charter rights of the police officers [against whom no process had yet issued], Justice Marshall did impose a publication ban on the names of the officers. R v. Shallow [29] was another case in which a private informant was refused process by a justice of the peace presiding at the pre- enquete hearing. On an application for judicial review, a judge of the Ontario Superior Court of Justice refused to issue a publication ban on the names of the police officers whom the informant was seeking to charge with sexual assault.

In refusing the request for the limited publication ban, Justice Nordheimer stated that publication would not prejudice their rights to a fair trial and that the potential for damage to their reputations was speculative. In mentioning the Shallow decision in his submissions, counsel for the informant/applicant specifically and explicitly cited the following passge: “…The remedy of an in camera hearing is an extreme one. It could not be justified as proportional to the ends if lesser remedies exist.

I believe that it is now clearly established that a court has authority in a proper case to order a ban on publication if the requirement of the Dagenais/Mentuck test are met. That determination must necessarily be made on the individual facts of each case”.

It must be underscored that neither Parkinson nor Shallow directly and squarely address the issue before me. Those cases address the appropriateness of publication bans at the judicial review stage, not the pre-enquete stage. However, the interests at stake are not necessarily the same at the pre-enquete stage and the judicial review stage. My reason for this assertion will be explained in the following paragraphs. In my view, the following comments by Justice Krever in Southam v.

Coulter seem to address, at least indirectly, whether a publication ban would be sufficient: It may be argued that to achieve the objectives the legislation need not go so far as to require an in camera hearing in all cases; a discretion to hold the hearing in camera would further the same objectives, but with less impairment. The answer to this suggestion, it seems to me, is that it would not, in practice, work. The discretion of the justice of the peace could not be expressed in a vacuum.

Some evidence or submissions must be heard before the justice would be in a position to decide whether the public should be excluded. By then, the damage would have been done. The evidence or submission, having been heard in open court, would, therefore, be public. Nor would the justice of the peace have any means of knowing, at that early stage of the proceedings, whether the absent target of the information, the pre-inquiry being ex parte, would, if process issues, attempt to evade it. If process did not issue the absent target would have been powerless to respond to the baseless allegations then made public.

Although Justice Krever’s comments specifically address the issue of whether the justice presiding at a pre-enquete should have discretion to open the hearing to the public, by analogy, they also address the sufficiency of a publication ban to protect the relevant interests at stake because the considerations would be identical. In his comments throughout Southam v. Coulter , Krever J.A. is underscoring the fact that, under normal and usual circumstances, the evidentiary foundation for the proposed charges will receive their first hearing at the pre-enquete.

Before the presiding judicial officer actually hears the evidence, he/she has no way of knowing how prejudicial the allegations would be to an innocent person. Nor does he/she have any way of knowing how detrimental to the administration of justice would be the premature public revelation of actual criminal wrongdoing. The practical reality is that a publication ban would almost always be insufficient. If the ban were broad in scope, then what would be the value of having public or media access to the pre-enquete hearing?

If the ban were limited in scope [example: prohibiting publication of names only], then there would always be the risk that the circumstances reported by the media would be sufficient to permit actual wrongdoers to tamper with witnesses or evidence and/or to flee the jurisdiction. There would also be a risk that the circumstances reported in the media, aside from the publication ban on names, would be sufficient to identify innocent parties whose reputation and privacy interests could be jeopardized.

PRACTICAL CONSIDERATIONS & IMPLICATIONS It is helpful to consider the practical implications of the position advanced by the informant/applicant. If the informant/applicant’s position is accepted, what consequences follow? In other words, how would the pre-enquete hearing be impacted? If the applicant’s position were accepted, the pre-enquete would be declared presumptively open to the public with a judicial discretion to exclude the public in appropriate circumstances. Consequently, the pre-enquete proceeding would likely be lengthened and complicated.

In the event of the Crown making a preliminary motion to exclude the public, argument respecting the preliminary motion could easily take longer than the hearing on the pre-enquete proper. i.e. the hearing of the evidence and submissions bearing on the decision whether to issue process. If members of the public were presumptively entitled to attend pre-enquete hearings, how would the presiding justice handle the situation of the proposed accused attending the hearing? How should the presiding justice respond if and when the proposed accused or his counsel request to be heard? This scenario is not speculative.

Indeed, this actually happened in this case. Somehow, counsel [Mr. Joseph Markson] for the person named in the information was made aware of this pre-enquete hearing. When he appeared, he was excluded under my interim order excluding all members of the public. If the proposed accused, or counsel for him/her, were permitted to participate in the pre-enquete, how exactly would the hearing proceed? At the pre-enquete stage potential defences to the proposed charges are simply not relevant [30] . If potential defences would be

excluded from consideration by the presiding judicial officer, then one wonders how the proposed defendant or his/her counsel could meaningfully participate. If the “defence” were permitted to cross-examine witnesses and/or call evidence, how would one distinguish a pre-enquete hearing from a trial? Quite frankly, permitting the defence to participate at this commencement stage of criminal proceedings could only result in chaos in the courtrrom for the presiding judicial officer.

Further, if the proposed defendant or his/her counsel is entitled to attend, could this not jeopardize the interests of justice by giving the defendant an opportunity to flee the jurisdiction, destroy evidence or interfere with witnesses? These particular concerns were mentioned by the Supreme Court of Canada in AG of Nova Scotia et al. v. MacIntyre [31] with respect to the issuance of search warrants and by the Ontario Court of Appeal in Southam v. Coulter with respect to the issuance of process. In the course of his judgment for the Ontario Court of Appeal in Southam v.

Coulter , Krever J.A. explicitly discussed the parallels between the issuance of a search warrant and the issuance of process. Indeed, he specifically cited passages from the Supreme Court of Canada decision in MacIntyre . During submissions, Mr. Lockhart cited the case of Robb v. York [32] . In that case, the Region of York applied for an order, quashing the summons issued against it by a justice of the peace, on the basis that it was denied the right to participate in the 507.1 pre-enquete hearing.

In giving reasons for judgment, Justice Logan for the Ontario Superior Court of Justice ruled that, even though 507.1 does not mention the term ex parte , “There is no requirement that a justice mentioned in 507.1 must allow a potential accused to be present or heard if requested”. It is important to underscore that this decision is short and sparse in its reasoning. It fails to articulate any justification for the judge’s belief that the 507.1 pre-enquete is an ex parte hearing.

Surprisingly, although the holding amounts to an asserting that the hearing is ex parte , Justice Logan never actually employs that term. However, at the very least, Robb v. York is some support for the position that the

section 507.1 pre-enquete hearing is ex parte , i.e. that the person named in the information has no right to attend the pre-enquete hearing. If this is so, then the only way to avoid the practical problems detailed immediately above would be to conclude that the pre-enquete must also be held in camera .

At this point, it is instructive to recall the words of Justice Krever in Southam : It would be anomalous, to say the least, if as some of the respondents would have it, the hearing under s. 507(1) of the Code is one which everyone has a right to attend except the person most affected by its potential outcome, that is, the person alleged in the information to have committed an offence.

CONCLUSIONS As I mentioned at the outset of these reasons, the question before me affords me three possible answers: first, that the pre-enquete hearing must be held in camera; second, that the pre-enquete hearing is presumptively closed to the public with a residual discretion to permit the attendance of the public and the media; or third, that the pre-enquete hearing is presumptively open to the public with a judicial discretion to exclude the public and the media in certain circumstances.

After careful review of the jurisprudence and the submissions on point, I have determined that the nature and purpose of the pre-enquete hearing require that it be held in camera . In so ruling, I have rejected the invitation of the informant/applicant to declare the pre-enquete hearing presumptively open to the public and the media with a residual discretion to exclude the public and the media in appropriate circumstances. This, the preliminary motion is denied. The strength and vitality of the open court principle have been demonstrated in the jurisprudence which was submitted and which I have reviewed.

However, given the interests of the relevant stakeholders, I have no hesitation in concluding that the open court rule is simply not applicable in the particular context of a pre-enquete hearing. Kevin V. Madigan Justice of the Peace

Ontario Court of Justice APPENDIX “A” Justice to hear informant and witnesses — public prosecutions 507.

(1) Subject to subsection 523(1.1), a justice who receives an information laid under

section 504 by a peace officer, a public officer, the Attorney General or the Attorney General’s agent, other than an information laid before the justice under

section 505, shall, except if an accused has already been arrested with or without a warrant, (

a) hear and consider, ex parte , (

i) the allegations of the informant, and (ii) the evidence of witnesses, where he considers it desirable or necessary to do so; and (

b) where he considers that a case for so doing is made out, issue, in accordance with this section, either a summons or a warrant for the arrest of the accused to compel the accused to attend before him or some other justice for the same territorial division to answer to a charge of an offence. Process compulsory

(2) No justice shall refuse to issue a summons or warrant by reason only that the alleged offence is one for which a person may be arrested without warrant. Procedure when witnesses attend

(3) A justice who hears the evidence of a witness pursuant to subsection (1) shall (

a) take the evidence on oath; and (

b) cause the evidence to be taken in accordance with

section 540 in so far as that

section is capable of being applied. Summons to be issued except in certain cases

(4) Where a justice considers that a case is made out for compelling an accused to attend before him to answer to a charge of an offence, he shall issue a summons to the accused unless the allegations of the informant or the evidence of any witness or witnesses taken in accordance with subsection (3) discloses reasonable grounds to believe that it is necessary in the public interest to issue a warrant for the arrest of the accused. No process in blank

(5) A justice shall not sign a summons or warrant in blank. Endorsement of warrant by justice

(6) A justice who issues a warrant under this

section or

section 508 or 512 may, unless the offence is one mentioned in

section 522, authorize the release of the accused pursuant to

section 499 by making an endorsement on the warrant in Form 29. Promise to appear or recognizance deemed to have been confirmed

(7) Where, pursuant to subsection (6), a justice authorizes the release of an accused pursuant to

section 499, a promise to appear given by the accused or a recognizance entered into by the accused pursuant to that

section shall be deemed, for the purposes of subsection 145(5), to have been confirmed by a justice under

section 508.

Issue of summons or warrant

(8) Where, on an appeal from or review of any decision or matter of jurisdiction, a new trial or hearing or a continuance or renewal of a trial or hearing is ordered, a justice may issue either a summons or a warrant for the arrest of the accused in order to compel the accused to attend at the new or continued or renewed trial or hearing. R.S., 1985, c. C-46, s. 507 ; R.S., 1985, c. 27 (1st Supp.), s. 78; 1994, c. 44, s. 43; 2002, c. 13, s. 21 . APPENDIX “B” Referral when private prosecution 507.1

(1) A justice who receives an information laid under

section 504, other than an information referred to in subsection 507(1), shall refer it to a provincial court judge or, in Quebec, a judge of the Court of Quebec, or to a designated justice, to consider whether to compel the appearance of the accused on the information. Summons or warrant

(2) A judge or designated justice to whom an information is referred under subsection (1) and who considers that a case for doing so is made out shall issue either a summons or warrant for the arrest of the accused to compel him or her to attend before a justice to answer to a charge of the offence charged in the information. Conditions for issuance

(3) The judge or designated justice may issue a summons or warrant only if he or she (

a) has heard and considered the allegations of the informant and the evidence of witnesses; (

b) is satisfied that the Attorney General has received a copy of the information; (

c) is satisfied that the Attorney General has received reasonable notice of the hearing under paragraph ( a ); and (

d) has given the Attorney General an opportunity to attend the hearing under paragraph (

a) and to cross-examine and call witnesses and to present any relevant evidence at the hearing. Appearance of Attorney General

(4) The Attorney General may appear at the hearing held under paragraph (3)(

a) without being deemed to intervene in the proceeding. Information deemed not to have been laid

(5) If the judge or designated justice does not issue a summons or warrant under subsection (2), he or she shall endorse the information with a statement to that effect. Unless the informant, not later than six months after the endorsement, commences proceedings to compel the judge or designated justice to issue a summons or warrant, the information is deemed never to have been laid. Information deemed not to have been laid — proceedings commenced

(6) If proceedings are commenced under subsection (5) and a summons or warrant is not issued as a result of those proceedings, the information is deemed never to have been laid.

New evidence required for new hearing

(7) If a hearing in respect of an offence has been held under paragraph (3)(

a) and the judge or designated justice has not issued a summons or a warrant, no other hearings may be held under that paragraph with respect to the offence or an included offence unless there is new evidence in support of the allegation in respect of which the hearing is sought to be held. Subsections 507(2) to (8) to apply (8) Subsections 507(2) to (8) apply to proceedings under this section. Non-application — informations laid under sections 810 and 810.1 (9) Subsections (1) to (8) do not apply in respect of an information laid under

section 810 or 810.1. Definition of “designated justice”

(10) In this section, “designated justice” means a justice designated for the purpose by the chief judge of the provincial court having jurisdiction in the matter or, in Quebec, a justice designated by the chief judge of the Court of Quebec. Meaning of “Attorney General”

(11) In this section, “Attorney General” includes the Attorney General of Canada and his or her lawful deputy in respect of proceedings that could have been commenced at the instance of the Government of Canada and conducted by or on behalf of that Government. 2002, c. 13, s. 22 ; 2008, c. 18, s. 16 .

APPENDIX “C” Investigative Hearing Definition of “judge” 83.28

(1) In this

section and

section 83.29, “judge” means a provincial court judge or a judge of a superior court of criminal jurisdiction. Order for gathering evidence

(2) Subject to subsection (3), a peace officer may, for the purposes of an investigation of a terrorism offence, apply ex parte to a judge for an order for the gathering of information. Attorney General’s consent

(3) A peace officer may make an application under subsection (2) only if the prior consent of the Attorney General was obtained. Making of order

(4) A judge to whom an application is made under subsection (2) may make an order for the gathering of information if the judge is satisfied that the consent of the Attorney General was obtained as required by subsection (3) and (

a) that there are reasonable grounds to believe that (

i) a terrorism offence has been committed, and (ii) information concerning the offence, or information that may reveal the whereabouts of a person suspected by the peace officer of having committed the offence, is likely to be obtained as a result of the order; or (

b) that (

i) there are reasonable grounds to believe that a terrorism offence will be committed, (ii) there are reasonable grounds to believe that a person has direct and material information that relates to a terrorism offence referred to in subparagraph (i), or that may reveal the whereabouts of an individual who the peace officer suspects may commit a terrorism offence referred to in that subparagraph, and (iii) reasonable attempts have been made to obtain the information referred to in subparagraph (ii) from the person referred to in that subparagraph. Contents of order

(5) An order made under subsection (4) may (

a) order the examination, on oath or not, of a person named in the order;

(

b) order the person to attend at the place fixed by the judge, or by the judge designated under paragraph ( d ), as the case may be, for the examination and to remain in attendance until excused by the presiding judge; (

c) order the person to bring to the examination any thing in their possession or control, and produce it to the presiding judge; (

d) designate another judge as the judge before whom the examination is to take place; and (

e) include any other terms or conditions that the judge considers desirable, including terms or conditions for the protection of the interests of the person named in the order and of third parties or for the protection of any ongoing investigation. Execution of order

(6) An order made under subsection (4) may be executed anywhere in Canada. Variation of order

(7) The judge who made the order under subsection (4), or another judge of the same court, may vary its terms and conditions. Obligation to answer questions and produce things

(8) A person named in an order made under subsection (4) shall answer questions put to the person by the Attorney General or the Attorney General’s agent, and shall produce to the presiding judge things that the person was ordered to bring, but may refuse if answering a question or producing a thing would disclose information that is protected by any law relating to non-disclosure of information or to privilege. Judge to rule

(9) The presiding judge shall rule on any objection or other issue relating to a refusal to answer a question or to produce a thing. No person excused from complying with subsection (8)

(10) No person shall be excused from answering a question or producing a thing under subsection (8) on the ground that the answer or thing may tend to incriminate the person or subject the person to any proceeding or penalty, but (

a) no answer given or thing produced under subsection (8) shall be used or received against the person in any criminal proceedings against that person, other than a prosecution under

section 132 or 136; and (

b) no evidence derived from the evidence obtained from the person shall be used or received against the person in any criminal proceedings against that person, other than a prosecution under

section 132 or 136. Right to counsel

(11) A person has the right to retain and instruct counsel at any stage of the proceedings. Order for custody of thing

(12) The presiding judge, if satisfied that any thing produced during the course of the examination will likely be relevant to the investigation of any terrorism offence, shall order that the thing be given into the custody of the peace officer or someone acting on the peace officer’s behalf. 2001, c. 41, s. 4. 73 The Criminal Code permits private prosecutions. A private informant may lay an information in conformity with s. 504. Receipt of the information commences criminal proceedings.

Parliament enacted, more accurately continued, a procedure aimed at the determination by a judicial officer of whether the informant has made out a case for prosecution. This procedure is the pre-enquete, a hearing that provides the private informant the opportunity to present her or his case for prosecution. 74 Conduct of the pre-enquete vindicates the interest of the private informant who seeks prosecution of another for an alleged crime.

The pre-enquete assures the private informant that an independent judicial officer will hear the informant's allegations, listen to the evidence of the informant's witnesses, and decide whether there this is evidence of each essential element of the offence charged in the information. The pre-enquete also ensures that spurious allegations, vexatious claims, and frivolous complaints barren of evidentiary support or legal validity will not carry forward into a prosecution.

To insist that the withdrawal power await the determination about issuance of process also reduces the risk that the Criminal Code 's provisions for private prosecution will to begin and end with the right to lay a private information. Duties: 11. The Crown Attorney shall aid in the local administration of justice and perform the duties that are assigned to Crown Attorneys under the laws in force in Ontario , and, without restricting the generality of the foregoing, every Crown Attorney shall,

cases brought by private prosecutors (

d) watch over cases conducted by private prosecutors and, without unnecessarily interfering with private individuals who wish in such cases to prosecute, assume wholly the conduct of the case where justice towards the accused seems to demand his or her interposition; The informant bears the onus to establish that a summons or warrant should be issued. The onus is satisfied where there is a prima facie case that satisfies the elements of the offence charged. The judge does not weigh the evidence or consider any defences to the charge in coming to a determination whether a prima facie case exists.

If a prima facie case has been established, the judge must issue process. The judge has some limited discretion not to issue process where he or she decides the charge is frivolous, vexatious, or abusive. There is also such discretion when the evidence is based upon the evidence of someone who is mentally disordered.