R. v. MacKay, 2021 NSSC 33

SUPREME COURT OF NOVA SCOTIA Citation: R. v. MacKay , 2021 NSSC 33 Date: 20210202 Docket: 501206 Registry: Halifax Between: Her Majesty The Queen v. Hugh Wilson MacKay Decision – Application for a Stay of Proceedings Judge: The Honourable Justice Peter P. Rosinski Heard: January 25, 2021, in Halifax, Nova Scotia Counsel: Kimberley McOnie, Senior Crown Counsel Donald Murray, QC, Counsel for the Defendant By the Court: Introduction [ 1 ] Mr. MacKay has been charged that he on November 22, 2018, did have: “the care or control of the motor vehicle while his ability to operate a motor vehicle was impaired by alcohol or drug, contrary to section 253(1) (

a) of the Criminal Code ” [“ CC ”]. [ 2 ] His charge is before the Provincial Court, pending the setting of a trial date. [ 3 ] His counsel has elected to come to this Court and is asking that his impaired driving charge be stayed permanently as an abuse of process. He says the Crown’s formal choice to proceed with his charge as an “indictable” offence constitutes the abuse of process, because all other things being equal, the Crown has stated it would normally have proceeded with his charge as a “summary conviction” offence. [ 4 ] I conclude that there is no abuse of process, and no

section 7 Charter of Rights violation in this case. [1] Background [ 5 ] Sections 253/255

(1) CC allow a procedural choice to the Crown in simple impaired driving charges - that is, it can “elect” to proceed with the charge based on an “indictable” offence process (more serious penalties are available - up to five years imprisonment) or “summary conviction” offence process (less serious penalties are available – up to 18 months imprisonment) by officially confirming such in court. Because of this procedural choice, such offences are referred to as “hybrid” offences. [ 6 ] On February 19, 2020, an Information was sworn on reasonable grounds alleging that Mr.

MacKay committed an impaired driving offence on November 22, 2018. This intervening period of approximately 15 months is at the centre of Mr. MacKay’s argument. [ 7 ] There is no statutory limitation period in relation to indictable offences in the Criminal Code . However, at the time of his offence, the Criminal Code contained a limitation period in relation to

summary conviction offences - s. 786(2) CC read: No proceedings shall be instituted more than six months after the time when the subject-matter of the proceedings arose, unless the prosecutor and the defendant so agree. [2] [ 8 ] Thus, if the Crown elected Mr. MacKay’s impaired driving charge to proceed on a “summary conviction” basis, the Information relating thereto must have been sworn by a police officer no later than approximately May 22, 2019.

[ 9 ] However, if “the prosecutor and the defendant so agree”, a

summary conviction charge, including Mr. MacKay’s impaired driving charge, could proceed even if the Information charging the offence was sworn by a police officer later than May 22, 2019. [ 10 ] With this background, let me then consider the March 5, 2020 appearance in Provincial Court before her Honour, Judge Ann Marie Simmons. [ 11 ] The first appearance in Provincial Court was originally scheduled for March 16, 2020, as is evidenced on an Appearance Notice issued to Mr. MacKay in relation to this matter which also required him to appear for the purposes of the Identification of Criminals Act , (RSC. 1985, c.

I-1) – fingerprinting – on March 13, 2020 – which document was signed in acknowledgement by him on February 11, 2020. [3] [ 12 ] The transcript thereof reads in part: Mr. Murray - … I appreciate this being brought in early because I’m not available on the original scheduled appearance date … I understand the Crown is willing to proceed on this by

summary conviction. Is that correct? Ms. Stevens - Because this is a last-minute addition the file has not made its way to me yet. … I can’t indicate my election without the file… … Mr. Murray - I’ve been dealing with Melanie Perry on this matter and understood yesterday that she was saying that the Crown would proceed summarily. … [the matter was then adjourned from the morning to afternoon that day to allow Crown counsel to examine its administrative file] Ms. Stevens - Yes, and I understand my friend had discussions with another member of my office, and it’s with consent that we’ll be proceeding summarily. Mr.

Murray - Yeah, we’re not prepared to give that consent. … Ms. Stevens - So then I’ll be proceeding by indictment. … The Court - The Crown’s election in this matter? For some clarity, please, for the record. Ms. Stevens - My understanding, and based on what my friend said this morning, was that it would be summarily; that he had a discussion with another one of my friends… members of my office. He is now said, that’s not the case. So, if it’s not summarily with consent, it will have to be by indictment. The Court - So the Crown would be prepared to proceed by

summary conviction with consent? Ms. Stevens - Yes, because we’re outside the period and we would need his consent. … Mr. Murray - Yes, and the other prosecutor did indicate that that was their position. I consulted with my client. We’re not prepared to give that consent. The Court - Crown’s election then is to proceed… Ms. Stevens - By indictment. The Court - By indictment. … The Court - Waive reading of the charge that’s before the court Mr. Murray? Mr. Murray - I do and enter a plea of not guilty. … The Court – Sorry, we missed another step. It’s an indictable election.

You waive reading of the election address? Mr. Murray - we don’t get an election of Supreme Court. The Court - Oh, because of the… Yes, right. Mr. Murray - (inaudible – talk over) jurisdiction. [4] The Court – Right.

[13] The next significant procedural step taken by Mr. MacKay was his application to this Court seeking a stay of proceedings. Mr. MacKay’s position [14] Mr. MacKay says this court should resolve the following issues: 1 - Does this court have jurisdiction to entertain the application for a stay of proceedings, premised on an alleged breach of Mr.MacKay’s

section 7 Charter rights? [Yes, it does][5] [15] He says this court has concurrent jurisdiction and cites paragraph 16 in Rahey v R (SCC), [1987] 1 SCR 588. [16] The questions before that court included whether the Supreme Court of Nova Scotia was a “court of competent jurisdiction” forthe purposes of a section 24(1) Charter application, in relation to the appellant’s right to be tried within a reasonable time as guaranteedby

section 11(

b) of the Charter. The trial was heard in Provincial Magistrates Court and the delay was alleged to be attributable to thecourt. Chief Justice Glube acknowledged that generally trial courts are the appropriate forum in relation to applications for s. 24(1)Charter-based relief, however “given the special circumstances of the situation, she concluded that it would have been inappropriate forMr.

Rahey to have brought his application before the Provincial Magistrate.” (para. 11) Justice Lamer’s reasons reflect the consensus ofthe court though concurring opinions were given: In Mills it was also decided that the superior courts should have ‘constant, complete and concurrent jurisdiction’ for section 24(1)applications.

But it was therein emphasized that the Superior Court should decline to exercise this discretionary jurisdiction unless, inthe opinion of the Superior Court and given the nature of the violation or any other circumstance, it is more suited than the trial court toassess and grant the remedy that is just and appropriate.

The clearest, though not necessarily the only, instances where there is a needfor the exercise of such jurisdiction are those where there is as yet no trial court within reach and the timeliness of the remedy of or theneed to prevent a continuing violation of rights is shown, and those where it is the process below itself which is alleged to be in violationof the Charter’s guarantees. The burden should be upon the claimant, in this case Mr. Rahey, to establish that the application is anappropriate one for the Superior Court’s consideration. (para. 16) [My italicization added] [17] I conclude that Mr.

MacKay has satisfied me that this Court has concurrent jurisdiction to hear such matters, and that I shouldhear the merits of the application for a judicially authorized permanent stay of proceedings.[6] [18] The reasons include: judicial economy; that neither of the parties have strenuously objected to this court considering the matter;to date there has been no election in Provincial Court, regarding a trial court.

Moreover, there may be the arguable benefit to ProvincialCourt Judges of having a binding or persuasive ruling from this court on these issues. [19] When Superior Courts determine questions of law, and they arise in a Provincial Court proceeding, a Superior Court’s decisionis binding on them: R v Comeau, 2018 SCC 15 at paras. 23 – 43, where the court stated at paragraph 26: “Common law courts arebound by authoritative precedent. This principle – stare decisis – is fundamental for guaranteeing certainty in the law.

Subject toextraordinary exceptions, a lower court must apply the decisions of higher courts to the facts before it. This is called vertical staredecisis.”. [20] In R v RS, 2019 ONCA 906, Justice Doherty wrote for the court, and concluded that stare decisis is also applicable in thecontext of prerogative writ applications to the Superior Courts to the extent that they have rendered decisions regarding the proper legalinterpretation or determination of questions of law (para. 73): “… The courts are hierarchical. The Superior Court of Justice is above theOntario Court of Justice in the hierarchy.

The doctrine of stare decisis compels courts who are subject to the supervisory authorityof higher courts to apply the law as pronounced by those higher courts. That obligation exists to promote order, certainty andefficiency.”[7] 2 - Does the evidence (specifically the transcript of the March 5, 2020 appearance) establish that the Crown considered thecircumstances of Mr. MacKay’s offence to be such that it would otherwise have elected to proceed by way of

summary convictionprocess, and only but for the information not being laid within six months of the offence date as required by s. 786(2) CC (absentMr. MacKay’s consent to proceed by

summary conviction process) did it proceed indictably? [I conclude that the answer is“yes”][8] [21] Before his first appearance in Provincial Court, Mr. MacKay’s counsel was fully aware that the Crown could not proceed byway of “summary conviction” process without his consent. The record reflects that at some point before March 5, 2020, his counseldiscussed with another Crown Attorney expecting to be responsible for the file the possibility of proceeding on consent by “summaryconviction” process. Nothing on the evidence available would support the inference that before the March 5, 2020 court appearance, Mr.MacKay’s counsel had indicated to the Crown that he would not consent to a

summary conviction process. Even after taking the lunchbreak and gathering more accurate information about the conversations between Mr. MacKay’s counsel and the other Crown counsel,Ms. Stevens returned to court and stated: “Yes, and I understand my friend had discussions with another member of my office, andit’s with consent that we’ll be proceeding summarily.” As late as that point in time, the Crown believed that Mr. MacKay would beconsenting to the matter proceeding by

summary conviction process. That belief must have taken into account earlierutterances/communications by Mr. MacKay’s counsel. While he is entitled to change his position, it is odd that Mr. MacKay’s counselthen unexpectedly stated no consent would be forthcoming. Was it merely to have the Crown confirm on the record that they wereprepared to proceed by

summary conviction process with consent, thereby providing what has become the factual foundation upon whichthe abuse of process is alleged? [22] From the evidence available, I am satisfied that the Crown, writ large, has consistently spoken with one voice – it was preparedto proceed with the charge against Mr. MacKay by way of

summary conviction process, if he was prepared to consent. [23] This position is entirely reasonable and fair – it attempts to recognize there was a delay in the matter coming before the court,

and that it is in the interests of justice to afford Mr. MacKay the opportunity to be treated as if there had not been more than six monthsdelay between the offence date and the swearing of the information charging him with impaired driving. [24] Whether the Crown proceeds by

summary conviction or indictable process involves an exercise of “prosecutorial discretion”by the Crown. That discretion of the Crown is only reviewable in very limited circumstances and such reviews should only occur wherethe applicant raises an arguable case that there has been an “abuse of process” flowing from the Crown’s exercise of discretion.[9] [25] Let me next explore that matter. 3 - Was the decision of the Crown to proceed “by indictment” an abuse of process and violation of Mr. MacKay’s

section 7Charter rights? [No, it was not.][10] [26]

Section 7 of the Charter of Rights reads: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice. [27] I accept that electing to proceed by indictable process in this case involves an element of “prosecutorial discretion” asexpressed in R v Nixon, 2011 SCC 34, at paras. 18-21 and 30. [28] Let me first examine Justice Freeman’s reasons in R v Boutilier, (1995) 1995 NSCA 227 , 104 CCC (3d) 327,[11]which Mr.

MacKay relied upon in support of his position that the Crown’s election to proceed by indictable process at the firstappearance on the matter, is an abuse of process: 1 Following a crosswalk accident involving a pedestrian, on July 30, 1994, the respondent driver was charged, erroneously, withfailing to stop after striking another vehicle, pursuant to s. 252(1)(

b) of the Criminal Code.

Section 252 creates hybrid offences, and theCrown elected to proceed with the matter as a

summary conviction offence. 2 The Crown discovered its mistake too late to proceed again on

summary conviction and proposed to proceed by indictment on anew Information. This appeal is from a stay of proceedings on that Information. … 4 The Crown was aware from the Crown Sheet in its possession that the accident involved an injured pedestrian when itelected to proceed summarily on September 28, 1994. The erroneous information was endorsed "summarily" by the court. Therespondent pleaded not guilty and trial was set for April 27, 1995. 5 On the eve of the trial, the Crown discovered its mistake. The six-month limitation on

summary conviction offences under s.786(2) had by then expired. An election by the Crown to proceed by way of

summary conviction on a hybrid offence is a nullitywhere the Information is laid outside the six-month limitation period; see R. v. Phelps (1993), (ON CA), 79C.C.C. (3d) 550 (Ont. C.A.). Proceeding summarily on a new Information was no longer an option. 6 On the trial date, another Information was sworn under s. 252(1)(

a) alleging that the pedestrian was struck. Crown counseladvised that it would proceed by indictment on the second Information, and it was so endorsed. The Crown expressed its intentionto stay the original Information, which it was entitled to do under s. 579 of the Criminal Code, and the matter was set for hearing on May25, 1995. At that time, the trial judge stayed the second Information, endorsed it as stayed, and remarked … I'm not prepared to correct the Crown's errors to be quite plain with you and I'm not prepared to go along with it.

I'll stay the information.If the Crown makes an error, don't come to my court to get it corrected in this manner. … 9 Nowhere in the Crown's brief to the trial judge, nor in this appeal, is it alleged that the involvement of a pedestrian rather thana vehicle altered the Crown's understanding of the seriousness of the circumstances so as to justify proceeding by way ofindictment rather than by

summary conviction. No explanation for proceeding by indictment rather than by

summaryproceedings is offered, save for the expiration of the limitation period. … 10 There is nothing in the submission to suggest that the Crown would not have proceeded by way of

summary conviction withrespect to the second Information if the limitation period had not expired.[12] … 13 Therefore the only issue in this appeal is whether it was an abuse of process warranting a stay of proceedings for theCrown to re-elect to proceed by indictment, having previously elected to treat the matter as a

summary conviction offence. In myview, that is a question of law to be determined from the acknowledged facts. 14 The creation by Parliament of

summary conviction offences, indictable offences, and hybrid offences merely reflects thecommonplace observation that some offences are more serious than others. The Crown is entrusted with classifying offences and, in thecase of hybrid offences, with making the necessary determination whether to proceed summarily or by indictment. The choice isgoverned by the seriousness of the circumstances of each alleged offence; the object is to do justice expenditiously and fairly. TheCrown's discretion in electing between

summary proceedings and proceedings by indictment is virtually unfettered, and it isentitled to great respect. …

16 La Forest J. stated in R. v. Beare, (SCC), [1988] 2 S.C.R. 387, at pp. 410-11: Discretion is an essential feature of the criminal justice system. A system that attempted to eliminate discretion would be unworkablycomplex and rigid. Police necessarily exercise discretion in deciding when to lay charges, to arrest and to conduct incidental searches, asprosecutors do in deciding whether or not to withdraw a charge, enter a stay, consent to an adjournment, proceed by way of indictment orsummary conviction, launch an appeal and so on.

The Criminal Code provides no guidelines for the exercise of discretion in any of these areas. The day to day operation of lawenforcement and the criminal justice system nonetheless depends upon the exercise of that discretion. This Court has already recognized that the existence of prosecutorial discretion does not offend the principles of fundamental justice;see R. v. Lyons, supra, at p. 348; see also R. v. Jones, (SCC), [1986] 2 S.C.R. 284, at pp. 303-4.

The Court did addthat if, in a particular case, it was established that a discretion was exercised for improper or arbitrary motives, a remedy unders. 24 of the Charter would lie. ... [Emphasis added in original.] … 23 In hybrid offences, the same essential elements must be proven whether the Crown elects to proceed by way of indictment or bysummary conviction. Once an offence under s. 252 has been determined by the Crown to be a

summary conviction offence, theprovisions of the Criminal Code relating to

summary conviction offences apply, not procedures relating to indictable offences. TheCrown's option has been exercised: the case has been determined to be less serious than an indictable offence and the procedure is lessformal. The Crown cannot arbitrarily reverse its decision and arrive at a different result; there must be sound reasons to justify such achange. The Crown's election is protected by a strong presumption of regularity and the offence is deemed to have been correctlycharacterized.

The exercise of the Crown's discretion is subject to judicial review only for "flagrant impropriety"(Balderstone [reported as Balderstone v. R., (MB CA), [1983] 6 W.W.R. 438 (Man. C.A.)]) or "improper orarbitrary motives" (Beare). 24 The offence with which the respondent was charged was therefore a

summary conviction offence because the legal system, bythe device of the Crown discretion, had determined it to be a

summary conviction offence. It was wrongly described in theInformation, but the Crown acknowledges that it was not fooled by its own mistake — it was aware throughout the whole matterthat an injured pedestrian was involved, not another vehicle. The circumstances to which the Crown initially applied its criteria forexercising its discretion did not change.

It would strike at the integrity of the system if the Crown is permitted to disavow itsoriginal election, in the absence of supporting circumstances related to the offence itself, and make a second election whichnecessarily disregards its own criteria, simply to patch up a drafting mistake in one Information. (The same criteria, applied to thesame circumstances, could not yield a conflicting result.) It is very clear that the Crown's motives were arbitrary.

In my view, thissystem is too important, and works too well, to expose it to public disrepute in this way. 25 To permit proceedings by indictment in the circumstances of this case would, in my view, damage the integrity of thesystem: integrity cannot be slightly violated any more than an eggshell can be slightly broken. It is an absolute concept. Either it isintact, or it is not. [My bolding added] [29] R v Dudley, 2009 SCC 58, like Boutilier, involved a decision by the Crown to proceed summarily - yet on the trial date (anexpected guilty plea) defence counsel argued because of the limitation period that the

summary conviction charge was a nullity, as it wasstatute barred by the operation of s 786(2) CC.

The Supreme Court of Canada agreed. [30] The court also stated in its reasons (para. 5) that, although having elected to proceed summarily after the limitation periodwithout the accused’s consent was fatal to the validity of the Crown’s election, (namely that the proceedings were invalid because theinformation was a nullity), the Crown could still proceed afresh by indictment, unless the court is satisfied that this would amount to anabuse of process. [31] Justice Fish, for the majority, stated: 15 Hybrid offences, though initially rare, are not of recent conception: Some can be found in the very first Criminal Code, enacted byParliament in 1892.

And in recent decades Parliament has transformed many crimes formerly triable either by indictment or summarilyinto offences that may now be prosecuted either way. 16 Moreover, hybrid offences are by no means a uniquely Canadian phenomenon. Elsewhere, however, the decision whether toproceed summarily or on indictment is not generally a matter of prosecutorial discretion. In England and Wales, for example, it is thepresiding magistrate who decides: Magistrates' Courts Act 1980 (U.K.), 1980, c. 43, s. 19.

And in certain Australian states, includingNew South Wales, the accused may apply to be tried summarily, subject to the consent of the Crown: Crimes Act 1900 (N.S.W.), ss.475A-B. … 30 Except in one respect, I see no reason to distinguish in this regard between hybrid offences and offences punishable only onsummary conviction. For hybrid offences, the Crown may proceed by indictment where its offer to proceed summarily is spurnedby the accused. If the offence is a "pure"

summary conviction offence — as opposed to a hybrid offence — the accused maynonetheless agree to proceed beyond the limitation period to avoid prosecution by indictment for a related offence that covers the sameconduct. In either instance, if the prosecutor and defendant agree, a

summary conviction court may exercise in respect of a statute-barredprosecution the jurisdiction it would otherwise have had. 31 The sole relevant difference, it seems to me, is this. Absent consent, expiry of the limitation period bars entirely proceedings in

respect of an offence that may be prosecuted only by way of

summary conviction. A hybrid offence that can no longer be prosecutedsummarily without the defendant's consent may nonetheless, absent abuse of process, be prosecuted by indictment, whether ornot the Crown initially elected to proceed summarily — except of course, where the accused was acquitted by a

summaryconviction court pursuant to the Crown's initial election. 32 In its reasons below, the Alberta Court of Appeal held that the Crown may "seek the consent of the accused to continuewith a

summary procedure" under s. 786(2) when it discovers "it has mistakenly elected to proceed summarily on aninformation sworn more than six months after the date of an alleged hybrid offence" (para. 42). On this view, which I share, theproceedings in the

summary conviction court cannot be treated as a nullity ab initio. 33 Whatever the situation may have been prior to the amendment of s. 786(2) in 1997, the

summary conviction court nowretains jurisdiction — subject to the consent of the parties — when it is discovered that the proceedings before it were statute-barred when the information was sworn. On a purposive

interpretation of the amendment, the curative consent that is its object maybe given at any time before verdict without requiring the parties to start the trial afresh. As I mentioned earlier, however, uncertainty andmisunderstanding can easily be avoided by inviting and recording on the record — before the defendant is asked to plead — anagreement by the parties to proceed summarily. … 35 And it is not without interest that the Court, nearly a century ago, recognized in R. v.

Giroux (1917), (SCC), 56S.C.R. 63(S.C.C.), that "[c]onsent cannot confer jurisdiction but a privilege defeating jurisdiction may always be waived if thetrial court has jurisdiction over the subject matter" (p. 67). In the context that concerns us here, the benefit of an expired limitationperiod may be regarded, at least since 1997, as a privilege that can be waived by the accused. 36 The consent of the parties, I repeat, can be given at any time during the proceedings before the verdict. The prosecutor will alwaysbe deemed to have consented by virtue of his or her election to try the hybrid offence summarily.

The defendant must consent to theproceedings in a manner consistent with the reasons of the Court in Korponey v. Canada (Attorney General), (SCC),[1982] 1 S.C.R. 41 (S.C.C.). That is to say, the consent of the defendant to continue with the proceedings must be "informed, clear andunequivocal": Korponay, at p. 58. … 42 As mentioned earlier, the failure of the accused to consent to the prosecution of a hybrid offence by way of

summaryconviction beyond the limitation period is fatal to the validity of the Crown's election and to the proceedings that ensue. 43 It is for precisely this reason that the Crown is free to proceed by indictment on the original information, if valid on itsface, where the accused refuses to consent. Although the information remains valid, the initial election and all subsequentproceedings are a nullity.

They can therefore have no effect on the Crown's ability to proceed by indictment. 44 I agree with the Court of Appeal that it is not unfair to the accused to permit the Crown to proceed by indictment unless"the evidence discloses an abuse of process arising from improper Crown motive, or resulting prejudice to the accused sufficientto violate the community's sense of fair play and decency" (para. 1). On the record as we have it, nothing of the sort may be said tohave occurred here. 45 As Martin J.A. observed in R. v. Belair (1988), (ON CA), 41 C.C.C. (3d) 329 (Ont.

C.A.): The [hybrid] offence charge was at all times triable by indictment, and indeed the information charged an indictable offence until theCrown elected to treat the offence as one punishable on

summary conviction: see Re Abarca and The Queen (1980), (ON CA), 57 C.C.C. (2d) 410 at 413-4 (Ont. C.A.). The respondent in this case was in no way prejudiced by the error of Crowncounsel. If Crown counsel had noticed, prior to electing to proceed by way of

summary conviction, that

summary convictionproceedings were precluded by s. 721(2), he would, no doubt, have proceeded by indictment, as he ultimately did. Therespondent in this case suffered no prejudice as a result of Crown counsel failing to notice prior to election that

summaryconviction proceedings were barred by s. 721(2) [p. 339]. 46 In R. v. Phelps (1993), (ON CA), 79 C.C.C. (3d) 550 (Ont. C.A.), the Ontario Court of Appeal aptly noted that"in view of the lengthy proceedings that have taken place through no fault of the appellant, [the Crown should] consider whether theinterests of justice would be served by proceeding further with this charge, the seriousness of which it obviously deemed to be of asummary conviction nature" (p. 552).

That decision, I agree, is best left to prosecutorial and not judicial discretion. [My bolding added] [32] I do not conclude that the Crown’s decision to proceed by indictable process is an abuse of process (which could trigger theremedy of a judicial stay of proceedings, based on a consideration of sections 7 and 24(1) of the Charter of Rights and Freedoms).[13] [33] Justice Fish was clear in Dudley that, under the “main category” of abuse of process, a reviewing court should consider whetherto let the Crown discretion at issue stand, considering among other things, whether “the evidence discloses an abuse of process arisingfrom improper Crown motive, or resulting prejudice to the accused sufficient to violate the community’s sense of fair play anddecency”.

The so-called “residual category” of abuse of process considers the prejudice to the administration of justice, whether theabuse is one that is continuing, and whether it would taint the outcome of the proceedings. [34] The binding and persuasive jurisprudence is clear that the remedy that Mr. MacKay seeks, a permanent judicial stay ofproceedings, should only be considered in the “clearest of cases”. As a corollary, I note that there should be a sense of proportionbetween the remedies sought and any identified “abuse of process”.

[35] There is a long established jurisprudence in relation to the exercise of prosecutorial discretion which Mr. MacKay says is anabuse of process in his case. The general legal principles are well known. A good starting point is Justice Bateman’s reasons in R vCole, 2000 NSCA 42 (which is distinguishable on its facts, but that is of no consequence for present purposes): (ii) Abuse of Process: 37 While the courts' reluctance to interfere with prosecutorial discretion is well established, it is accepted that the exercise ofthat discretion must conform to Charter principles.

A Charter challenge must, however, be evaluated in the context of the widelatitude afforded when the exercise of Crown discretion is at the core of the complaint. In Power , supra, the accused was chargedwith impaired driving following a motor vehicle collision in which one of his passengers was killed and another two injured. At trial theaccused objected to the admission of the results of the breath samples on the ground that the police had violated his s.10 Charter rights.The trial judge, on a voir dire, agreed that his Charter rights had been violated and excluded the evidence.

Crown counseldeclined to call further evidence and the trial judge charged the jury to acquit. The Court of Appeal dismissed an appeal fromthe acquittal (Goodridge, C.J. dissenting), although finding that the trial judge erred in excluding the evidence.

It was themajority view that entry of an acquittal was appropriate on the ground that there had been an abuse of process in that, insteadof proceeding with the trial when faced with the adverse ruling the Crown, unreasonably in its view, declined to call furtherevidence which resulted in the acquittal of the respondent on all counts. 38 At issue on further appeal to the Supreme Court of Canada was whether s. 686(4) of the Criminal Code included a residualdiscretion for a court of appeal to refuse to order a new trial although finding that there was an error of law at trial which couldreasonably have affected the verdict.

In this context, the court discussed the exercise of Crown discretion. L'Heureux-Dubé wrote,for the majority, at p. 10: To conclude that the situation "is tainted to such a degree" and that it amounts to one of the "clearest of cases", as the abuse ofprocess has been characterized by the jurisprudence, requires overwhelming evidence that the proceedings under scrutiny areunfair to the point that they are contrary to the interest of justice.

As will be developed in more detail further in these reasons,the Attorney General is a member of the executive and as such reflects, through his or her prosecutorial function, the interest ofthe community to see that justice is properly done. The Attorney General's role in this regard is not only to protect the public,but also to honour and express the community's sense of justice. Accordingly, courts should be careful before they attempt to"second-guess" the prosecutor's motives when he or she makes a decision. Where there is conspicuous evidence of impropermotives or of bad faith or of

an act so wrong that it violates the conscience of the community, such that it would genuinely beunfair and indecent to proceed, then, and only then, should courts intervene to prevent an abuse of process which could bring theadministration of justice into disrepute. Cases of this nature will be extremely rare.

That the Crown prosecutor may have acted precipitously or may have exercised poor judgment in deciding not to adduce furtherevidence, even if true, fails to establish misconduct of such a nature as to shock the community's sense of fairness or to warrantthe application of the doctrine of abuse of process. 39 Every abuse of process does not lead to a stay of proceedings. Generally, a stay is granted only where the court concludesthat the accused could not receive a fair trial should the prosecution continue. There are, however, situations in which a matterwill be stayed, although the trial would not be unfair.

This has become known as the "residual category" of abuse of process.Justice Hood …held that this case fell within the "residual category". The Supreme Court of Canada in Canada (Minister of Citizenship& Immigration) v. Tobiass (1997), (SCC), 118 C.C.C. (3d) 443 (S.C.C.), at para 89, described the residual category asfollows: [89] Most often a stay of proceedings is sought to remedy some unfairness to the individual that has resulted from statemisconduct. However, there is a "residual category" of cases in which a stay may be warranted. L'Heureux-Dubé J. described itthis way, in R. v.

O'Connor, (SCC), [1995] 4 S.C.R. 411 (S.C.C.), at para. 73: This residual category does not relate to conduct affecting the fairness of the trial or impairing other procedural rightsenumerated in the Charter, but instead addresses the panoply of diverse and sometimes unforeseeable circumstances in which aprosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenesfundamental notions of justice and thus undermines the integrity of the judicial process. The residual category, it bears noting, is a small one.

In the vast majority of cases, the concern will be about the fairness of thetrial. (Emphasis added) 40 The reason why this "residual category" is so limited was explained by Cromwell, J.A. of this Court, for the majority, in R.v. Regan (1999), 1999 NSCA 165 , 137 C.C.C. (3d) 449 (N.S. C.A.). He emphasized how rare a stay will be absent afinding of prejudice to the accused: [108] As the Supreme Court said in Tobiass, the concern in abuse of process cases will usually be that the accused cannot receive a fairtrial. Only rarely will a prosecution be stayed if a fair trial of the charge is possible.

This makes perfect common sense. Our rules ofcriminal procedure and evidence and many of the rights guaranteed under the Canadian Charter of Rights and Freedoms, ConstitutionAct, 1982,

Part I, exist for the purpose of ensuring fair trials. Only in rare and unusual circumstances could holding a fair trial, of itself,be damaging to the integrity of the judicial process. It follows that only in rare and unusual circumstances will a prosecution be stayed ifthe accused can receive a fair trial. [109] Such circumstances do exist, however.

Within the already exceptional category of prosecutions which will be stayed because theircontinuation constitutes an abuse of process, there is a sub-category, called the residual category by the Supreme Court of Canada, inwhich the continuation of a prosecution is abusive even though the charge may be tried fairly. The Court has described this residualsubset of abuse of process cases as a small one: see Tobiass at 427. [110] Abuse of process cases are, by their nature, fact specific. However, reference to a few recent decisions from the Supreme Court

of Canada underlines the point that stays of proceedings in residual category cases are extremely rare. The Court held that a newtrial was the only appropriate remedy in R. v. Curragh Inc., (SCC), [1997] 1 S.C.R. 537 in spite of a trial judge's exparte conversation with a senior member of the Attorney General's Department to secure removal of the prosecutor and what Sopinka, J.termed an "egregious" breach of the Crown's obligation to disclose. In R. v.

Latimer, (SCC), [1997] 1 S.C.R. 217,Crown counsel and the police had administered a questionnaire to discover what prospective jurors thought about moral issues thatwould arise in the course of the trial. The Court described the conduct as "a flagrant abuse of process" (at para. 43), but a new trial wasapparently viewed as an adequate remedy: see Tobiass at 434. In Tobiass itself, there had been ex parte communications between theAssistant Deputy Attorney General responsible for civil litigation and the Chief Justice of the Federal Court relating to ongoing litigationin that Court.

The Supreme Court, while holding that a reasonable observer would perceive that the Chief Justice and Associate ChiefJustice of the Federal Court had been improperly and unduly influenced by the Assistant Deputy Attorney General and that judicialindependence had suffered a serious affront, nevertheless refused to grant a stay of proceedings. In R. v Scott, (SCC),[1990] 3 S.C.R. 979, Crown counsel stayed a proceeding in the middle of a trial for the purpose of avoiding an evidentiary ruling by thetrial judge and then, shortly after, recommenced the proceedings.

The Court upheld the refusal of a judicial stay of proceedings. Onecommentator has gone so far as to say that where a fair trial is possible and, in the absence of continuing abuse, "... it is difficult toimagine realistic scenarios ... [which] will now merit stays of proceedings.": Kent Roach, "The Evolving Test for Stays of Proceedings"(1998), 40 C.L.Q. 400 at 433. (Emphasis added) 41 As Cromwell, J.A. discussed in Regan, a finding that an abuse of process fits within the residual category requires a three-step analysis.

The accused must first show that there has been misconduct that would render the continuation of the proceedingdamaging to the integrity of the judicial process. 42 Secondly, a balance must be struck between two main concerns: the damage to the integrity of the judicial process that willresult from the continuation of the prosecution as against the societal interest in the effective prosecution of alleged crimes.(Cromwell, J.A., at para 114) In this regard, two criteria must be satisfied if one is to conclude that the balance requires a stay: 1.

The prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of thetrial, or by its outcome; and 2. no other remedy is reasonably capable of removing that prejudice. (Emphasis added) 43 The "prejudice" referred to here is prejudice to the administration of justice, not prejudice to the accused. As Cromwell,J.A. explained: [117] Tobiass thus sets out two ways in which the prejudice caused by the abuse in question may be manifested, perpetuated oraggravated through the conduct of the trial or by its outcome.

The first will be present when there is a likelihood that statemisconduct will be repeated in the future. The second consists of past misconduct which was "... so egregious that the mere fact of goingforward in the light of it will be offensive.": Tobiass at 428. Later in the reasons, the Court described this as an abuse "... seriousenough [that] public confidence in the administration of justice could be so undermined that the mere act of going forward in thelight of it would constitute a new and ongoing abuse sufficient to warrant a stay...

However, only exceedingly serious abuse couldever bring such continuing disrepute upon the administration of justice." Tobiass at 430. (Emphasis added) 44 The third step of the analysis will be necessary only if, after considering the first two steps, it is unclear whether a stay isrequired. This step again addresses the balance between the societal interest in proceeding and the interests served by grantingthe stay.

Cromwell, J.A. continued: [122] When the application of these two criteria does not result in a clear answer to the question of where that balance lies, the intereststhat would be served by granting a stay and the interest that society has in having a final decision on the merits may be explicitlyconsidered. However, where there is no likelihood of future misconduct and no ongoing effects of the misconduct, the rebalancing at thethird stage will rarely, if ever, be reached.

In the absence of those two conditions, a stay could only be justified, according to Tobiass, bypast egregious conduct which was so serious that to continue in light of it would be offensive. 45 Cromwell, J.A. summarized the direction in Tobiass as follows: [125] I conclude that in a residual category case (i.e. one in which a fair trial can be held), it is normally necessary for the applicant toshow at the second stage of the analysis a likelihood of future misconduct or some ongoing impact flowing from the past misconductwhich will not be removed unless a stay is granted.

If, having considered these criteria, the Court is left unclear about whether a stay isrequired, the balancing of the interests that would be served by granting a stay and the interest that society has in having a final decisionon the merits, which is reflected in the criteria themselves, may be explicitly revisited. However, in exceptional cases, even in theabsence of a likelihood of future misconduct or of ongoing effects of past misconduct, a stay may be justified purely by pastmisconduct.

Such conduct must be so egregious that the mere act of carrying forward in the light of it would constitute a new andongoing abuse. In these rare and exceptional cases, there is unlikely to be any further balancing at the third stage of the inquiry becausemisconduct of this nature will almost invariably outweigh the societal interest in carrying forward any prosecution. (Emphasis added) … 48 Donna C. Morgan, in "Controlling Prosecutorial Powers — Judicial Review, Abuse of Process and

Section 7 of The Charter"(1986-87), 29 Crim. L.Q. 15, at pp. 39 to 43 reviews some situations in which courts have found that the prosecutor acted with animproper motive, i.e., one not consonant with the spirit of the criminal justice process: 1. Where the criminal justice process is being used to enforce a civil claim; 2. Where the Crown acts with deliberate intention of prejudicing the accused's ability to make full answer and defence; 3. Where the Crown has acted to circumvent an adverse ruling, otherwise improve on an unfavourable result or cure some procedural

defect; 4. Where the Crown has breached an undertaking to the accused who has acted in reliance upon it; 5. In situations of entrapment. [36] At this juncture I believe it will be helpful to briefly discuss the position of a Crown Attorney and the nature of the decisionsthey make. [37] Firstly, it must be appreciated that under our Constitution, and relevant legislation, provincial Crown attorneys draw theirauthority to act as prosecutors from the authority of the Attorney General of Nova Scotia.[14] [38] The position of prosecutor has been described as embodying the “Minister of Justice”.

This position was commented upon byJustice L’Heureux-Dube for the court in R v Power, (SCC), [1994] 1 S.C.R. 601: 16 I, therefore, conclude that, in criminal cases, courts have a residual discretion to remedy an abuse of the court's process but only inthe "clearest of cases", which, in my view, amounts to conduct which shocks the conscience of the community and is so detrimental tothe proper administration of justice that it warrants judicial intervention. 17 To conclude that the situation "is tainted to such a degree" and that it amounts to one of the "clearest of cases", as the abuse ofprocess has been characterized by the jurisprudence, requires overwhelming evidence that the proceedings under scrutiny are unfair tothe point that they are contrary to the interest of justice.

As will be developed in more detail further in these reasons, the AttorneyGeneral is a member of the executive and as such reflects, through his or her prosecutorial function, the interest of thecommunity to see that justice is properly done. The Attorney General's role in this regard is not only to protect the public, butalso to honour and express the community's sense of justice. Accordingly, courts should be careful before they attempt to"second-guess" the prosecutor's motives when he or she makes a decision. Where there is conspicuous evidence of impropermotives or of bad faith or of

an act so wrong that it violates the conscience of the community, such that it would genuinely beunfair and indecent to proceed, then, and only then, should courts intervene to prevent an abuse of process which could bring theadministration of justice into disrepute. Cases of this nature will be extremely rare. … 3. Prosecutorial Discretion 33 My colleague himself, alluding to the type of discretion he sees in s. 686(4) of the Criminal Code , warns that courts "shouldbe mindful of the fact that exercising this power must be done sparingly in that it constitutes a review of prosecutorialdiscretion".

This, at a minimum, indicates the danger with which such interference by courts is fraught. There are other dangers,not the least of which involves the possibility of interfering with the separation of powers under our constitution. 34 In contrast to the U.S. Constitution, no general "separation of powers" doctrine is spelled out in the Constitution Act, 1867 .However, as Professor Peter W. Hogg notes in Constitutional Law of Canada , 3rd ed. (Toronto: Carswell, 1992), at pp. 184-85, such aseparation of powers does in fact exist. As Dickson C.J.C. wrote, for the court, in Fraser v.

Canada (Treasury Board), (sub nom. Fraserv. Public Service Staff Relation Board) (SCC), [1985] 2 S.C.R. 455 , at pp. 469-70: There is in Canada a separation of powers among the three branches of government — the legislature, the executive and the judiciary. Inbroad terms, the role of the judiciary is, of course, to interpret and apply the law; the role of the legislature is to decide upon andenunciate policy; the role of the executive is to administer and implement that policy . [Emphasis added.] (See also: Sobeys Stores Ltd. v. Yeomans, (SCC), [1989] 1 S.C.R. 238 ; R. v.

Beauregard, (SCC),[1986] 2 S.C.R. 56 ; Douglas/Kwantlen Faculty Assn. v.

Douglas College, (SCC), [1990] 3 S.C.R. 570 , PatriceGarant, Droit administratif , vol.2 (3rd ed. 1991); Gilles Pepin, "La compétence des tribunaux administratifs de décider de laconstitutionalité d'une loi, notamment de sa compatibilité avec la Charte canadienne des droits et libertés" in Canadian Bar Association— Continuing Legal Education Seminar on Administrative Law, Canadian Administrative Law: Past Present and Future Where We'veBeen (Ottawa, 1989).) It is manifest that, as a matter of principle and policy, courts should not interfere with prosecutorialdiscretion.

This appears clearly to stem from the respect of separation of powers and the rule of law. Under the doctrine of separation ofpowers, criminal law is in the domain of the executive, as Jean-Claude Hébert explains in "Le contrôle judiciaire de certains pouvoirs dela couronne", in Droit pénal — Orientations nouvelles (1987), 129, at pp. 136-37: [TRANSLATION] In Canada, it is the executive which assumes primary responsibility for administering the criminal law , aswas held by a majority of the Supreme Court in Skogman v. The Queen .

This stems from the fact that there must be an authority whichdecides whether the judicial process should be set in motion and what form the prosecution will take. Decisions concerning theoperation of criminal justice involve important considerations relating to the public interest . From this perspective, the actionsof the Attorney General are hybrid in that there is a perpetual moving to and fro between his legal and political functions. Thatis why the Attorney General must answer politically to Parliament for the manner in which the Crown exercises its powers.[Emphasis added.] 35 Donna C.

Morgan in "Controlling Prosecutorial Powers — Judicial Review, Abuse of Process and

Section 7 of the Charter" (1986-87) 29 Crim. L.Q. 15, at pp. 20-21, probes the origins of prosecutorial powers: Most [prosecutorial powers] derive ... from the royal prerogative, defined by Dicey as the residue of discretionary or arbitrary authorityresiding in the hands of the Crown at any given time. Prerogative powers are essentially those granted by the common law to the Crownthat are not shared by the Crown's subjects. While executive action carried out under their aegis conforms with the rule of law,prerogative powers are subject to the supremacy of Parliament, since they may be curtailed or abolished by statute.

Still other powers that derive directly from the prerogative now reside in the Criminal Code ... Others ... have been limited or otherwisemodified by Parliament. Finally, another group of prosecutorial powers ... are creatures of statute. [Footnotes omitted.] 36 And at pp. 18-19, she expands on the independence of prosecutors: Along with the exalted status of his office come high expectations as to the Attorney-General's performance of his functions. Alarge measure of constitutional trust is reposed within him, and he bears a heavy obligation to conduct himself with dignity andfairness.

In many situations, he is described as acting either judicially or quasi-judicially. When exercising his "grave" discretionin prosecutorial matters, he must take into account not only the position of the individual, but what the public interestdemands. In doing so, he must stand alone, acting independently of political or other external influences. He is to be neither instructed orrestrained, save by his final accountability to Parliament . [Footnotes omitted, emphasis added.] 37 In "Prosecutorial Discretion" (1987-88) 30 Crim.

L.Q. 219, at p. 219, David Vanek explains the meaning of prosecutorialdiscretion: Prosecutorial discretion refers to the discretion exercised by the Attorney-General in matters within his authority in relation tothe prosecution of criminal offences .

The Attorney-General is the chief law officer of the Crown and a member of the Cabinet.He heads a ministry of the government that exercises the authority over the administration of justice and the constitution and themaintenance and organization of the courts that is conferred upon the provincial government by the constitution ... the Attorney-General is the prosecutor and hence, in effect, a litigant in every criminal case except ...

In practice, the Attorney-General acts inindividual cases through the numerous Crown Attorneys and Assistant Crown Attorneys who are appointed as his agents toprosecute for criminal offences on his behalf. [Footnotes omitted, emphasis added.] 38 In "Prosecutorial Discretion: A Reply to David Vanek" (1987-88) 30 Crim. L.Q. 378, at pp. 378-80, J.A. Ramsay expands on therationale underlying judicial deference to prosecutorial discretion: Crown counsel in Ontario are responsible ultimately to the Attorney-General, who is responsible to the Legislature ...

The Ministry ofthe Attorney-General exercises careful supervision of prosecutions for which it is responsible. Proceedings are conducted in public andany member of the public is free to bring the conduct of Crown counsel to the attention of the Attorney-General. In practice, Crowncounsel must be prepared to account for their actions on every single case they prosecute. … It is fundamental to our system of justice that criminal proceedings be conducted in public before an independent and impartialtribunal.

If the court is to review the prosecutor's exercise of his discretion the court becomes a supervising prosecutor . It ceasesto be an independent tribunal. [Emphasis added.] 39 That courts have been extremely reluctant to interfere with prosecutorial discretion is clear from the case law. They havebeen so as a matter of principle based on the doctrine of separation of powers as well as a matter of policy founded on theefficiency of the system of criminal justice and the fact that prosecutorial discretion is especially ill-suited to judicial review. 40 In Balderstone v. R. (1983), (MB CA), 8 C.C.C. (3d) 532 (Man.

C.A.) , (leave to appeal dismissed by theSupreme Court of Canada on December 15, 1983, [1983] 2 S.C.R. v ), Monnin C.J.M. wrote, at p. 539: The judicial and the executive must not mix. These are two separate and distinct functions. The accusatorial officers layinformationsor in some cases prefer indictments. Courts or the curia listen to cases brought to their attention and decide them on theirmerits or on meritorious preliminary matters.

If a judge should attempt to review the actions or conduct of the Attorney-General —barring flagrant impropriety — he could be falling into a field which is not his and interfering with the administrative andaccusatorial function of the Attorney-General or his officers . That a judge must not do . [Emphasis added.] 41 La Forest J. stated in R. v. Beare, (SCC), [1988] 2 S.C.R. 387 , at pp. 410-11: Discretion is an essential feature of the criminal justice system. A system that attempted to eliminate discretion would be unworkablycomplex and rigid.

Police necessarily exercise discretion in deciding when to lay charges, to arrest and to conduct incidental searches,as prosecutors do in deciding whether or not to withdraw a charge, enter a stay, consent to an adjournment, proceed by way ofindictment or

summary conviction, launch an appeal and so on. The Criminal Code provides no guidelines for the exercise of discretion in any of these areas. The day to day operation of lawenforcement and the criminal justice system nonetheless depends upon the exercise of that discretion . This Court has already recognized that the existence of prosecutorial discretion does not offend the principles of fundamental justice ;see R. v. Lyons, supra , at p. 348; see also R. v. Jones, (SCC), [1986] 2 S.C.R. 284 , at pp. 303-4.

The Court did add thatif, in a particular case, it was established that a discretion was exercised for improper or arbitrary motives, a remedy under s. 24 ofthe Charter would lie ... [Emphasis added.] (See also: Cotroni c. Centre de Prevention de Montréal, (sub nom. United States v. Cotroni) (SCC), [1989] 1 S.C.R.1469 , R. v. Lyons, (sub nom.R. v. L. (T.P.)) (SCC), [1987] 2 S.C.R. 309 , at p. 348, R. v. Verrette, (SCC), [1978] 2 S.C.R. 838 , at p. 350, and Smythe v. R., (SCC), [1971] S.C.R. 680 , at p. 686.) 42 Our court in R. v.

T. (V.), (SCC), [1992] 1 S.C.R. 749 , at p. 761, commented on the rationale for not interferingwith prosecutorial discretion: It is important to understand the rationale for this judicial deference to the prosecutor's discretion…

Consider also Powell J.'s comments in Wayte v. United States , 470 U.S. 598 (1985). Though the factual content of the case at bar is fundamentally different from that with which the U.S. Court was faced (selective prosecution of violators of a law requiring Selective Service registration), his caution respecting the institutional competence of the courts bears repeating. At pages 607-8 Powell J. remarks: This broad discretion rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review.

Such factors as the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake. Judicial supervision in this area, moreover, entails systemic costs of particular concern.

Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor's motives and decision-making to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government's enforcement policy.

All these are substantial concerns that make the courts properly hesitant to examine the decision whether to prosecute. [Emphasis added, in addition to material emphasized in original, from "Such factors ... to undertake."] 43 Since a myriad of factors can affect a prosecutor's decision either to bring charges, to prosecute, to plea bargain, to appeal, etc., courts are ill-equipped to evaluate those decisions properly . (See: Steven Alan Reiss, "Prosecutorial Intent in Constitutional Criminal Procedure" (1987) 135 U. Pa. L.

Rev. 1365, at p. 1373.) 44 The judicial review of prosecutorial discretion may also involve disclosure by the Crown of precise details about the process by which it decides to charge, to prosecute and to take other actions. Such a procedure could generate masses of documents to review and could eventually reveal the Crown's confidential strategies and preoccupations . For example, the confidential nature of the charging process serves important institutional functions, including rehabilitative goals and the goal of increasing general deterrence.

The latter is met only by preventing the public from knowing which crimes will be given emphasis in enforcement. Professor Richard S. Frase ("The Decision to File Federal Criminal Charges: A Quantitative Study of Prosecutorial Discretion" (1980) 47 U. Chi. L.

Rev. 246) points to further elements which militate against the review of prosecutorial discretion, at p. 297: ... (3) publication [in a judicial review, of the Crown's guidelines or policies] inevitably would result in more frequent attempts to invoke judicial review of prosecution policy and decisions, and such review would further clog an already overburdened criminal court system; and (4) if prosecutors knew that their policy would be published, they would be reluctant to formulate it, or to change it once it was formulated.

Indeed, confidentiality permits prosecutors to employ flexible and multifaceted enforcement policies, while disclosure promotes inflexible and static policies which are not necessarily desirable. 45 Moreover, should judicial review of prosecutorial discretion be allowed courts would also be asked to consider the validity of various rationales advanced for each and every decision, involving the analysis of policies, practices and procedure of the Attorney General.

The court would then have to "second-guess" the prosecutor's judgment in a variety of cases to determine whether the reasons advanced for the exercise of his or her judgment are a subterfuge . This method of judicial review is not only improper and technically impracticable, but, as Kozinski J. observed in United States v.

Redondo-Lemos , 955 F.2d 1296 (9th Cir. 1992), at p. 1299: Such decisions [to charge, to prosecute and to plea-bargain] are normally made as a result of a careful professional judgment as to the strength of the evidence , the availability of resources, the visibility of the crime and the likely deterrent effect on the particular defendant and others similarly situated. Even were it able to collect, understand and balance all of these factors, a court would find it nearly impossible to lay down guidelines to be followed by prosecutors in future cases.

We would be left with prosecutors not knowing when to prosecute and judges not having time to judge . [Emphasis added.] … 48 My colleague's invitation to the court of appeal to interfere with prosecutorial discretion, absent abuse of process, goes against the grain of doctrine and jurisprudence . … [My bolding added] [ 39 ] Later jurisprudence considers the issue of which decisions by prosecutors could be reviewed by courts and which should be reviewed by the governing professional body: Krieger v Law Society of Alberta , 2002 SCC 65 .

Therein the court decided that (para. 60): There is a clear distinction between prosecutorial discretion and professional conduct. It is only the latter that can be regulated by the Law Society. [ 40 ] Helpfully, the court also commented in that case regarding “prosecutorial discretion”: D. Prosecutorial Discretion 42 In making independent decisions on prosecutions, the Attorney General and his agents exercise what is known as prosecutorial discretion.

This discretion is generally exercised directly by agents, the Crown attorneys, as it is uncommon for a single prosecution to attract the Attorney General's personal attention. 43 "Prosecutorial discretion" is a term of art. It does not simply refer to any discretionary decision made by a Crown prosecutor.

Prosecutorial discretion refers to the use of those powers that constitute the core of the Attorney General's office and which are protected from the influence of improper political and other vitiating factors by the principle of independence. 44 L'Heureux-Dubé J., in quoting David Vanek's work, "Prosecutorial Discretion" (1987-88), 30 Crim. L.Q. 219, at p. 219, said that " [p]rosecutorial discretion refers to the discretion exercised by the Attorney-General in matters within his authority in relation to

the prosecution of criminal offences" (Power, supra, at p. 622). 45 As discussed above, these powers emanate from the office-holder's role as legal advisor of, and officer to, the Crown. In our theoryof government, it is the sovereign who holds the power to prosecute his or her subjects. A decision of the Attorney General, or of hisor her agents, within the authority delegated to him or her by the sovereign is not subject to interference by other arms ofgovernment.

An exercise of prosecutorial discretion will, therefore, be treated with deference by the courts and by othermembers of the executive, as well as statutory bodies like provincial law societies. 46 Without being exhaustive, we believe the core elements of prosecutorial discretion encompass the following: (

a) thediscretion whether to bring the prosecution of a charge laid by police; (

b) the discretion to enter a stay of proceedings in either aprivate or public prosecution, as codified in the Criminal Code, R.S.C. 1985, c. C-46, ss. 579 and 579.1; (

c) the discretion to accepta guilty plea to a lesser charge; (

d) the discretion to withdraw from criminal proceedings altogether: R. v. Osborne (1975), (NB CA), 25 C.C.C. (2d) 405 (N.B. C.A.); and (

e) the discretion to take control of a private prosecution: Osiowy v.Linn (1989), (SK CA), 50 C.C.C. (3d) 189 (Sask. C.A.). While there are other discretionary decisions, these arethe core of the delegated sovereign authority peculiar to the office of the Attorney General. 47 Significantly, what is common to the various elements of prosecutorial discretion is that they involve the ultimate decisionsas to whether a prosecution should be brought, continued or ceased, and what the prosecution ought to be for.

Put differently,prosecutorial discretion refers to decisions regarding the nature and extent of the prosecution and the Attorney General'sparticipation in it. Decisions that do not go to the nature and extent of the prosecution, i.e., the decisions that govern a Crownprosecutor's tactics or conduct before the court, do not fall within the scope of prosecutorial discretion. Rather, such decisionsare governed by the inherent jurisdiction of the court to control its own processes once the Attorney General has elected to enterinto that forum. E.

Deference to Prosecutorial Discretion 48 In Regan, supra, at paras. 166-168, Binnie J., in dissent but not on this point, discussed the nature of prosecutorial discretion andsaid: The trial judge in this case was careful not to understate or diminish the broad scope traditionally and properly afforded to prosecutorialdiscretion. Courts are very slow to second-guess the exercise of that discretion and do so only in narrow circumstances.

In R. v.Beare, (SCC), [1988] 2 S.C.R. 387, for example, the Court noted that a system which did not confer a broad discretionon law enforcement and prosecutorial authorities would be unworkable, per La Forest J., at p. 410: … Still, the corollary to these extensive discretionary powers is that they must be exercised with objectivity and dispassion. This principlehas found its way into the Canadian Bar Association's Code of Professional Conduct (1987); see

chapter IX, "The Lawyer as Advocate":"Duties of Prosecutor", s. 9: The prosecutor exercises a public function involving much discretion and power and must act fairly and dispassionately. Because the exercise of prosecutorial discretion is, within broad limits, effectively non-reviewable by the courts, it is all the moreimperative that the discretion be exercised in a fair and objective way. Where objectivity is shown to be lacking, corrective actionmay be necessary (as here) to protect what O'Connor referred to as "the integrity" of the criminal justice system. 49 In Campbell v.

Ontario (Attorney General) (1987), (ON CA), 35 C.C.C. (3d) 480 (Ont. C.A.), it was held thatan Attorney General's decision to stay proceedings would not be reviewed save in cases of "flagrant impropriety." Seealso Power, supra; Chartrand v. Quebec (Minister of Justice) (1987), (QC CA), 59 C.R. (3d) 388 (Que. C.A.). Withinthe core of prosecutorial discretion, the courts cannot interfere except in such circumstances of flagrant impropriety or in actionsfor "malicious prosecution": Nelles, supra.

In all such cases, the actions of the Attorney General will be beyond the scope of his officeas protected by constitutional principle, and the justification for such deference will have evaporated. [My bolding added] [41] More recently, in R v Nixon 2011 SCC 34 the court considered a trial Crown’s decision, (which was overruled by senior staffbefore it could be given effect), namely, whether to discontinue the more serious Criminal Code charges laid and instead permit a guiltyplea to breach of the Alberta Traffic Safety Act. [42] As to what is “prosecutorial discretion” the court in Nixon said: 3.1 The Scope of Prosecutorial Discretion 18 Much of the debate between the parties in this Court was centred on whether the Crown's repudiation of a plea agreement is amatter of "prosecutorial discretion" reviewable only for abuse of process, or a matter of "tactics or conduct before the court"governed by the inherent jurisdiction of the criminal trial court to control its own process.

The crucial importance of this distinctionwas fully canvassed and explained in Krieger. … 21 The Court ultimately concluded, however, that the Law Society retained jurisdiction over Krieger's alleged misconduct, as it was amatter that fell outside the scope of the doctrine. In explaining the proper contours of prosecutorial discretion, the Court drew the

distinction between acts of prosecutorial discretion, and tactics or conduct. This distinction is now at the heart of the division in this appeal. … … 30 In my view , the question of whether the ADM's decision to repudiate the plea agreement is

an act of prosecutorial discretion, although disputed in this appeal, is just as easily resolved. As aptly put by Paperny J.A., in determining whether any impugned decision falls within the core of prosecutorial discretion, it is useful to ask: "... is it a decision as to whether a prosecution should be brought, continued or ceased, and if so, what it [page585] should be for?" (para. 32). Applying this test, she held that the ADM's decision to repudiate the plea agreement "fell squarely within the core elements of prosecutorial discretion" (para. 33). I agree.

In my respectful view, it is difficult to see how the ADM's decision could otherwise be characterized . The ADM effectively decided that the prosecution against Ms. Nixon should be continued and that it should be for the Criminal Code offences of dangerous driving, not for the traffic infraction of careless driving. Clearly, the ADM's decision to repudiate the plea agreement also constitutes

an act of prosecutorial discretion. Prosecutorial discretion was not spent with the decision to initiate the proceedings, nor did it terminate with the plea agreement.

So long as the proceedings are ongoing, the Crown may be required to make further decisions about whether the prosecution should be continued and, if so, in respect of what charges. 31 Thus, it follows that the Crown's ultimate decision to resile from the plea agreement and to continue the prosecution is subject to the principles set out in Krieger : it is only subject to judicial review for abuse of process . [My bolding added] [ 43 ] The upshot of this jurisprudence is that not all decisions made by Crown Attorneys in relation to the cases they prosecute fall within the ambit of “prosecutorial discretion”. [ 44 ] However, the decision of the Crown in the case at Bar, to prosecute Mr.

MacKay on indictable process, is an exercise of “prosecutorial discretion”. [ 45 ] Therefore, that decision may only be reviewed by this Court where the allegation is that that decision constitutes an “abuse of process”. [ 46 ] As noted elsewhere, in the Crown Attorney’s Manual, Crown Attorneys must consider two issues when deciding whether or not to prosecute a case: 1. is there sufficient evidence? and 2. is the public interest best served by prosecution of the case? [ 47 ] Mr.

MacKay has suggested that the Crown’s simple choice in court on March 5, 2020 (its exercise of prosecutorial discretion) was between discontinuing the prosecution against Mr. MacKay or proceeding by indictable process. [ 48 ] However, the decision whether to prosecute or not is clearly one that is more nuanced than he suggests –the Crown Attorney must consider the multi-factorial criterion: “is the public interest best served by prosecution of the case?” [ 49 ] Thus, contrary to Mr.

MacKay’s position, viz., which suggests that the seriousness of the circumstances of the offence are the determinative consideration that the Crown would consider in deciding to proceed with his charge on indictable process, the “public interest” could clearly include other considerations, such as noted in the jurisprudence- which generally views these offences as very serious. [ 50 ] I reiterate that, if this charge was to proceed at all, it had to proceed by indictment, or with the consent of Mr. MacKay by

summary conviction process. [ 51 ] Let me briefly address what appellate courts have said about so-called “drinking and driving” offences, as these statements would be well known by Crown counsel, and expected to be factored into their exercise of discretion: [15] 1- R v Suter , 2018 SCC 34 , where the offence ( s. 255(3.2) CC ) involved a refusal to provide a breath sample(s), per Justice Moldaver: 92 Mr. Suter's case is unique.

While the consequences of his actions are undoubtedly tragic, and the gravity of the refusal offence is significant, there are several factors in this case that, in combination, operate to reduce Mr. Suter's sentence. The fact that Mr.

Suter was not impaired at the time of the accident; that he refused to provide the police with a breath sample because of ill-informed and incorrect legal advice; and that he was attacked by vigilantes and had his thumb cut off with pruning shears, are all factors that must be taken into account in crafting an appropriate sentence. 93 But for these attenuating circumstances, I am of the view that a sentence of three to five years in the penitentiary would not have been out of line.

Unlawfully refusing to provide the police with a breath sample after having caused an accident resulting in a death is an extremely serious offence. Parliament has made this clear. It carries with it a maximum punishment of life imprisonment — and with good cause. When a person refuses to provide a breath sample in response to a lawful request, this deprives the police, the court, the public at large, and the family of the deceased of the best evidence as to the driver's blood alcohol level and state of impairment.

Moreover, it places a barrier in the way of the ongoing efforts and pressing objective of deterring, denouncing, and putting an end to the scourge of impaired driving. [My bolding added]

2- R v Lacasse, 2015 SCC per Wagner J (as he then was): 6 While it is normal for trial judges to consider sentences other than imprisonment in appropriate cases, in the instant case, as in allcases in which general or specific deterrence and denunciation must be emphasized, the courts have very few options other thanimprisonment for meeting these objectives, which are essential to the maintenance of a just, peaceful and law-abiding society. 7 The increase in the minimum and maximum sentences for impaired driving offences shows that Parliament wanted suchoffences to be punished more harshly.

Despite countless awareness campaigns conducted over the years, impaired drivingoffences still cause more deaths than any other offences in Canada: House of Commons Standing Committee on Justice and HumanRights, Ending Alcohol-Impaired Driving: A Common Approach (2009), at p. 5. 8 This sad situation, which unfortunately continues to prevail today, was denounced by Cory J. more than 20 years ago: Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, ithas a far greater impact on Canadian society than any other crime.

In terms of the deaths and serious injuries resulting inhospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country. (R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254 (S.C.C.), at para. 16) [My bolding added] 3- R v Cromwell, 2005 NSCA 137 per Bateman JA: 27 Drunk driving is a crime of distressing proportions. The Courts have consistently recognized that the carnage wrought by drunkdrivers is unabating and causes significant social loss. (R. v.

Biancofiore (1997), (ON CA), 119 C.C.C. (3d) 344 (Ont.C.A.), per Rosenberg, J.A. at para. 22). 28 Drunk driving is an offence demanding strong sanctions. In R. v. MacLeod (2004), 2004 NSCA 31 , 222 N.S.R. (2d) 56,[2004] N.S.J. No. 58 (N.S. C.A.), the Crown appealed an 18 month conditional sentence for impaired driving causing bodily harm andleaving the scene of an accident.

Cromwell, J.A., writing for the Court, in allowing the appeal and substituting a sentence of 18 monthsimprisonment for the driving offence and six months consecutive for leaving the scene, said: [22] This and other courts have repeatedly said that denunciation and general deterrence are extremely weighty considerations insentencing drunk driving and related offences: see for example, R. v. MacEachern (1990), (NS CA), 96 N.S.R. (2d)68, 253 A.P.R. 68 (C.A.); R. v. Buffett (1989), (NS CA), 93 N.S.R. (2d) 324, 242 A.P.R. 324 (C.A.); R. v.

Biancofiore (N.F.)(1997), (ON CA), 103 O.A.C. 292, 29 M.V.R. (3d) 90, 119 C.C.C. (3d) 344; 10 C.R. (5th) 200(C.A.); R. v. Dharamdeo (R.) (2000), (ON CA), 139 O.A.C. 137, 149 C.C.C. (3d) 489 (C.A.); R. v. Proulx (J.K.D.),2000 SCC 5 , [2000] 1 S.C.R. 61, 249 N.R. 201, 142 Man. R. (2d) 161, 212 W.A.C. 161, at para. 129. I accept the point thatgenerally incarceration should be used with restraint where the justification is general deterrence.

However, I also accept the view of theOntario Court of Appeal in Biancofiore, shared by the Supreme Court of Canada in Proulx, that offences such as this are more likely tobe influenced by a general deterrent effect.

As was said in Biancofiore, "... [T]he sentence for these crimes must bring home to otherlike-minded persons that drinking and driving offences will not be tolerated." (at para. 24) I would add that this is all the more importantwhere, as here, the respondent's drunk driving caused serious physical injury to an innocent citizen and where, by fleeing the scene of the"accident", the offender has shown disregard for the victim's condition and disrespect for the law. 29 The sentence must provide a clear message to the public that drinking and driving is a crime, not simply an error injudgment.

Those who would maim or kill by driving their vehicles while impaired are as harmful to public safety as are other violentoffenders. The proliferation of this crime and the risk that it will be seen by society as less socially abhorrent than other crimes heightensthe need for a sentence in which both general deterrence and denunciation are prominent features. Referring againto Biancofiore, supra, per Rosenberg, J.A.: [26] The drinking and driving offences occupy a unique position in the criminal law.

Unlike most other criminal offences, such as crimesof violence or crimes against property, the stigma attached to the drinking and driving offences is often not matched by the objectivegravity of these crimes. . . [27] …

Section 718 directs that "the fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, torespect for the law and the maintenance of a just, peaceful and safe society". As Ms. Gallin pointed out, it is too easy for otherwise law-abiding people to view what happened in this case as an "accident", an unfortunate consequence of an error in judgment, ratherthan the commission of a criminal offence.

Sentencing courts should be careful to ensure that they do not bolster that view ofserious drinking and driving offences. [28] The pressing need to ensure that the drinking and driving offences not be destigmatized might not be met by a conditional sentencein this case. . … 30 Denunciation as a component of sentencing is intended to communicate society's collective condemnation of the offender's conduct(R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, [1996] S.C.J.

No. 28 (S.C.C.), per Lamer, C.J.C. at para 81). [My bolding added] 4- R v Proulx, 2000 SCC 5 per Lamer CJ: 129 While Keyser J. seems to have proceeded according to a rigid two-step process, in deviation from the approach I have set out, I

am not convinced that an 18-month sentence of incarceration was demonstrably unfit for these offences and this offender. I point out thatthe offences here were very serious, and that they had resulted in a death and in severe bodily harm. Moreover, dangerous driving andimpaired driving may be offences for which harsh sentences plausibly provide general deterrence. These crimes are oftencommitted by otherwise law-abiding persons, with good employment records and families. Arguably, such persons are the onesmost likely to be deterred by the threat of severe penalties: see R. v.

McVeigh(1985), (ON CA), 22 C.C.C. (3d)145 (Ont. C.A.) at p. 150; R. v. Biancofiore (1997), (ON CA), 119 C.C.C. (3d) 344 (Ont. C.A.) at paras. 18-24; R. v.Blakeley (1998), (ON CA), 40 O.R. (3d) 541 (Ont. C.A.) at pp. 542-43. [My bolding adde

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